KT.".,., WABHINGTOllr BT. 00··· OOB.
637
lIT. WABHINGTON Ry.
Co. t1. CoE
eC al.
(C«reuU Courc.D. New Hamp,Mre. Hay 10, 1_)
No. 883.
1.
!t:nrOT.lL 01' CA.l1I1B!-CONDBJmATION PROCBBDllrGL
The rule of the New Hampshire supreme court, requiring llpeeiaI Fleu til pr0ceedings at law to be filed within 90 days from the commencement 0 the term at. which the action is entered, is applicable to railroad condemnation proceedings, and ther.efore, under the removal actl! of 1887 and 1888, such proceedings can only be removed before the expiration of that period.
.. BllIE-REMOVAL BY PLAINTIFF.
If, in condemnation proceedings, the landowner be regarded as plaintiff, (as lIeemB to be the rule of practice in New Hampshire,) then he hBll no right to remove al. any time, BlI a removal by plaintiff 18 not provided for in the removal acts of 1887 and 1888.
At Law. Proceeding to condemn lands. Heard on motion to mand to the state court. Sustained. W. & H. Heywood, Oliver E. Branch, and Harry G. Sargent, for appel· lants. Sanborn & Hardy and Frank S. Streeter, for appellee. ALDRICH, District Judge. The Mt. Washington Railway Company, a corporation existing and operating a railroad under the laws of New Hampshire, sought under the right of eminent domain to condemn for railroad purposes certain lands on the summit of Mt. Washington, supposed to be owned by Coe and Pingree. To this end a location was filed in the office of the secretary of state, and proceedings had before the railroad commissioners in accordance with the provisions of the statutes of New Hampshire. Under a statute which secures suoh right the landowners appealed to the supreme court for the southern district of the county of Coos, assigning as a reason that they were aggrieved by the appraisal of damages by the railroad commissioners. The appeal was entered in the office of the clerk of the supreme court on the 23d day of October, 1889, and the terms of such court are by law held in April and October of each year. The landowners, (Coe, a resident of Maine, and Pingree, a resident of Massachusetts,) on the 12th day of August, 1891, filed with the clerk of the state court a petition and bond in the usual form for removal of causes, and properly certified copies thereof were entered in the clerk's office of this court on the 8th day of October, 1891, and on the following day the corporation moved to remand to the state court, assigning three causes: (1) That the landowners are plaintiffs, and not defendants; (2) that the bond was not submitted to the state court for its approval; and (3) that the petition for removal was not filed in season. If the landowners sustained the relation of plaintiffs, and the party exercising the right of eminent domain that of defendant, as seems to be assumed in Rorer on Railroads, (426,) and in numerous cases cited in the notes, as well as in Chase v. Railroad Co.· 20 N. H. 195, and Boom Co. v. PaUersCYn, 98 U. S. 403, (and such assumption seems to have obtained in practice, at least, in New Hampshire,) then this proceeding should be remanded, as plaintiffs are clearly not within the removal
638
.ift!DERA.t' Iik'l'oRm, voL 50.
visions of the of 1887. Bl!t if; pn the contr{l.ry, ..which seems to me to be more party who, under right of eminent the. affirlllatiytl. the statutory mode prescribed fOf the appropriation or condemnation of private prope)'ty to public uses,-assertingtha:hhe public good so requires,-stands the, wllo defendtheil' private rights and pog.;: sessions against such affirmative action on the part oftbe' corporation $tI,tnd then the pro6eec;ling, after it reaches the supreme coui-tot the state, takes the form ofasuit at law, andiE! a controversy to.the ordinary incidents ofa civii suit and the rules of the court practice ip legal proceedings. Boom,Cc. v. Patterson, supra. Seetion 3 of the act of congress of March 3, 1887, as amended by seetion 3 of the act of August 13,1888, provides, in effect, that a party entitlefh a s:uit OJ;l the ground ()f nonresid!'lnce mlLY do so by filing a petition and bond in the state court at the time, or anytime before the is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff·. It is very plain-indeed, it is conceded in argument-that the petition for the removal was late, provided there is a rule oft.he state court.in respectto pleadings which is applicable to this clasa of cases. It appears by a rule of the supreme court for the state of New Hampshire, duly promulgated as a rule of practice in proceedings atlaw, that "all special pleas shall be filed with the clerk of the court, or delivered to the plaintiff's attorney, within 90 days from the commencement of the term when the action is entered; otherwise the cause shall be tried upon the general issue," and the general issue is treated as in, as ,of course; and by a rule in equity answers are to be filed within 60 days. The petition for removal was filed in this cause nearlyi two years after the parties who now seek a removal entered their appeal in the state court. It is urged, however, in argument, that neither the limitation in seetion 3 of the act of congress in respect to time, nor the rules of the state court, apply to this controversy; for the reason that it is not, a proceeding subject to the ordinary rules of pleading and practice above referred to, ,and that, therefore, the right of removal if! not limited, andl may be exercised at any stage of the proceeding. ' I cannot adopt thisl view. It is well understood that prior to the federal acts of 1887 and' 1888 there was a general feeling of unrest and insecurity by reason of the delays and uncertainties resulting from the indefinite time limit, and the broad provisions as to separation of parties and issues under then existing removal laws. The act of 1875 provided, in substance, that either nonresident party, or anyone or more nonresident plaintiffs or defendants, might remove before or at the term at which the cause could be first tried. Under the provisions of this act, there were great conflilSion. uncertainty, and: diversity of.judicial opinion,and the delays rawere obnoxious and burdensome to parties, and such as amounted to a practical denial of justice; and the situation presented was repugnant toour;system of government, which aims to provide its citizens
BY. CO, V.COE.
and property holders with facilities for· speedy, inexpeilsive; and fain adjustment of disputed rights. And in 1887 and 1888 congress, responding to this widespread dissatisfaction, sought to remedy the evil by more clearly defining the jurisdiction of the federal courts, aud the rights of parties in respect to remotal of causes. And, among other it withdrew from plaintiffs the right of removal., It provided a clear and express time limit; it adopted more definite provisions as to separation of parties and issues; and, 8S is urged by some, limited the: right of removal to cases over'which the federal courts have original cognizance, and jurisdiction concurrent with the courts of the several states. It is apparent that the purpose of this legislation was to include within the time limit all classes of cases, removable on the ground of diverse citizenship, except such as are within the local prejudice clause; and a construction of the statute and the rule of the state court, which should exempt a large class of cases from its operation, and thereby extend the right of removal indefinitely, would defeat the manifest intention of congress, and,would be 'wrong. Under the practice in the state courts of New Hampshire, this class of cases is subject to the ordinary rules obtaining in jUdicial procedure. Section 17, c. 160, Gen. Laws N. H., which gives the right of appeal from the, railroad commissioners, provides that upon such appeal the same proceedings shall be had as on appeal from the award of damages by the county commissioners. The assessment of damages for land taken for railroad purposes is balled, it is true, on the generalright by the state, subject to the right of appeal to the supreme court; and it is also true that such court, when a proceeding is brought there on appeal, may exercise supervision over the proceedings and the doings of the tribunal from which the appeal is taken. It will not be contendeQ. that ,the state, in delegating to railroads the right to appropriate lands, confers the power to take lands for all purposes and under aU circumstances; and under the practice in New Hampshire, as Iunderstilnd it, the landowner in a proceeding of this character, in a proper case, might interpose a plea in bar that there was no such cbrporation, that tbecorporate existence had expired by limitation, or that the alleged use was fictitious, and, while the ostensible purpose was for railroad use, the real purpose was banking or some other unauthorized use; and he might, by plea or motion, raise any question of jurisdiction or want 'of power in respect to the court or commissioners shown on the face ofthe papers, as, for instance, that the requirements of the statute in respect to .notice or other t,hings had not been complied with; or that the location was on one tractofland, and the assessment on another; or that the assessment was made by the commissioners of the state of New York, and not by the commissioners of New Hampshire; and in such case question of right would doubtless be determined in the same proceeding, and, if adversely to the railroad, judgment would be entered accordingly, rather than proceed to reassess damages in a void and illegal proceeding, leaving the parties to independent process to set the assessment aside; and, in theevent that no such sllecial questions should be
hDERAL Ul'ORTER,
vol 50.
misea within the 90-day rule referred to, it follows that the cause would be tried upon the general issue, which, under the statute and the rule of court as well, would involve the single issue as to the value of the , Holding the view that if the landowners are plaintiffs they are not within the pro.visions of the removal act of 1887, and if they are defendants that the rUle of the state court applies, and that the landowner8 are therefore late in point of time, itiis not necessary to consider the other ground raised by the motion, nor the further question which might be raised as to whether class of cases is within the removal provisions of the act of 1887. The case should be remanded upon the grounda considered. and it is so ordered.
mnd.
CaE
et al. 'Il. A1x:EN
et aI.
cO£rcutt Court, D. New Bamp,Mr& Ka7 10, 1892.') No. 288. 1I'BDBBAL COUBTS--JUBISDICTioN-PENDENOY Oil' CAUSB IN STATB COURT.
An &otion over whicQ the state and federal courts have concurrent jnrladicttOD was instituted in the state court, and, after answer, at the instance of plaintiff., was dismissed without prejudice; and defendants, with leave, amended their SQas to become plaintiffll, and the original plabitiffs became defendants, IJt respect to the affirmative allegations thereof. Held, that the pendency of such ,proceeding in the state court was no bar to the prosecution of a bill in a federal court by the oriMinal plaintiffs on the cause of action set forth in their orilrinal bilL
InEquity. Bill by E. S. Coe and David Pingree, trustees, against Walter Aiken, the Boston, Concord & Montreal Railway Company, the¥ount Washington Railway Company, and tbe Concord & Montreal (Jompany, to determine certain rights with reference to corporations, land, ,and otqer property, and for specific performance and aGo counting. Heard ana plea to the jurisdiction. Overruled. Hemry Heywood; Oliver E. Branch, Harry Sargemt,and Everett Fktche,\ for plaintiffs. ' . . . . E. B. S. Sa,nb(Yf1l and Prank S. Streeter, for defendants. ALDRICH, District Judge. Itappears that these plaintiffs commenCetl. proceedings in the equity court of the state of New Hampshire on the 3d day of October, 1890, making the present defendants, except the Con· cord &; Moutreal Railroad, par'ties defendant. It also appears that. on the 15th day of' July, .1891, and after the defendants had filed their answers in the state courts, the plaintiffs g-ave notice that they should, on the 31st of July, 1891, ask leave to dismiss their bill. Thereu!>"' on the defendants, on the 21st day of July, gave notice that they should, on the same 31st day of July, apply for the orders and injunotions 'mentioned in their answers. It further appears that on the 31st da}' of July, lind before any hearing upon the merits, the parties being presert' in p'erson and by counsel, it was ordered by the state couti thaC