162 F. 603 | 9th Cir. | 1908
(after stating the facts as above). This is a suit between two rival railroad companies, both created under the laws of the state of Washington. The jurisdiction of the Circuit Court over the controversy depends upon the question whether there is involved the construction of an act of Congress. The appellee contends that the only suggestion of. such a question discoverable in the second amended bill is the allegation therein contained as to the nature of the defense which it was expected ‘the appellee would interpose, citing Shoshone Mining Co. v. Rutter, 177 U. S. 505, 20 Sup. Ct. 726, 44 L. Ed. 864; Boston, etc., Mining Co. v. Montana, etc., Co., 188 U. S. 632, 23 Sup. Ct. 434, 47 L. Ed. 626; Blackburn v. Portland, etc., Co., 175 U. S. 571, 20 Sup. Ct. 222, 44 L. Ed. 276; Joy v. St. Louis, 201 U. S. 332, 26 Sup. Ct. 478, 50 L. Ed. 776. But we think there is sufficient set forth to show that the determination of the appellant’s own rights in the premises necessarily involves the construction of Act Cong. March 3, 1875, c. 152, 18 Stat. 482 (U. S. Comp. St. 1901, p. 1568). The appellant specifies at length the acts which it had performed in compliance with that statute, and shows that it relies thereon for its priority in right to the appellee to possess and occupy the right of way and construct its road thereon. It is
“Whenever the question in any court, state or federal, is whether a title to land which had once been the property of the United States lias passed, that question must be resolved by the laws of the United States.”
In Starin v. New York, 115 U. S. 248, 257, 6 Sup. Ct. 28, 31, 29 L. Ed. 388, the court said:
“The character of a case is determined by the questions involved. Osborn v. Bank of United States, 9 Wheat. 738-824, 6 L. Ed. 204. If from the questions it appears that some title, right, privilege, or immunity on which the recovery depends will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite construction, the ease will be one arising under the Constitution or laws of the United States.”
See, also, Cook v. Avery, 147 U. S. 384, 13 Sup. Ct. 340, 37 L. Ed. 209; Swafford v. Templeton, 185 U. S. 487, 22 Sup. Ct. 783, 46 L. Ed. 1005; Spokane Falls, etc., Railway Co. v. Ziegler, 167 U. S. 65, 17 Sup. Ct. 728, 42 L. Ed. 79; McCune v. Essig, 199 U. S. 382, 26 Sup. Ct. 78, 50 L. Ed. 237.
In approaching the question whether the appellant stated in the second amended bill a case for equitable relief, it is necessary, first,
“Tliat each and every grant of right of way and station grounds heretofore made to any railroad corporation under the act of Congress approved March third, eighteen hundred and seventy-five, entitled ‘An act granting to railroads the right of way through the public lands of the United States,’ where such railroad has not been constructed and the period of five years next following the location of said road, or any section thereof, has now expired, shall be, and hereby is, declared forfeited to, the United States, to the extent ot any portion of such located line now remaining unconstructed, and the United States hereby resumes the full title to the lands covered thereby freed discharged from such easement, and the forfeiture hereby declared shall, without need of further assurance or conveyance, inure to the benefit of any owner or owners of land heretofore conveyed by the United States subject to any such grant of right of way or station grounds: Provided, that in any ease wider this act where construction of the railroad is progressing in good faith at the date of the approval of this act the forfeiture declared in this act shall not take effect as to such line of railroad.”
The question arises whether this act operated ipso facto to forfeit the right of the appellant to an}'' section of its located road not completed within five years from the date of the location. The appellant denies that it has that effect, and contends that, in addition to the act, there must be a judicial ascertainment of forfeiture by a procedure in the nature of an inquest of office, citing Fairfax v. Hunter, 7 Cranch, 603, 3 L. Ed. 453, Smith v. Maryland, 6 Cranch, 286, 6 L. Ed. 225, and United States v. Repentigny, 5 Wall. 211, 18 L. Ed. 626, and argues that, while an act of Congress declaring forfeiture unconditionally may be sufficient where no facts are to be ascertained, the forfeiture here, under the act of June 26, 1906, which is to be enforced only where the road has not been constructed within the five years following the location, or where the construction of the railroad was not progressing in good faith at the date of the approval of the act, leaves-two important questions to be decided before the forfeiture is to take effect. But these questions so suggested are questions of fact of the nature of those which are to be determined in any case where the inquiry is whether particular rights under a grant have beeen forfeited under the provisions of a forfeiture act. The act itself takes the place of the adjudication of forfeiture and of the inquest of office. It is the “legislative assertion of ownership of the property for breach of condition.” It is itself the entry of the grantor for condition broken.
The provisions of the act of forfeiture involved in the case differ in no essential feature from those which were construed in United States v. Tennessee & Coosa R., 176 U. S. 242, 20 Sup. Ct. 370, 44 L. Ed. 452, and Farnsworth v. Minn. & Pac. R. R. Co., 92 U. S. 49, 23 L. Ed. 530, cited below. In Schulenburg v. Harriman, 21 Wall. 44, the court, in discussing the manner in which the reserved right of a
In Farnsworth et al. v. Minn. & Pac. R. R. Co., 98 U. S. 49-66, 23 L. Ed. 530, the court, after discussing the mode of ascertainment and determination of forfeiture by judicial proceedings, and its advantages in the prevention of consequent litigation, said:
“But that mode is not essential to the divestiture of the interest where the grant is for the accomplishment of an object in which the public is concerned, and is made b.v a law which expressly provides for the forfeiture where that object is not accomplished. Where land and franchises are thus held, any public assertion by legislative act of the ownership of the state, after default of the grantee — such as an act resuming control of them, and appropriating them to particular uses, or granting them to others to carry out the original object — will be equally effectual and operative.”
In United States v. Northern Pacific Railroad Company, 177 U. S. 435, 20 Sup. Ct. 706, 44 L. Ed. 836, the court held that the failure to complete the railroad within the time limited in a congressional grant of a right of way over the public lands was a condition subsequent not operating as a revocation of the grant, “but as authorizing the government itself to take advantage of it and forfeit the grant by judicial proceedings or by an act of Congress resuming title to the land.”
In a similar case (Atlantic & Pacific Railroad v. Mingus, 165 U. S. 413-433, 17 Sup. Ct. 348, 41 L. Ed. 770), the court approved the language above quoted from the opinion in Farnsworth v. Minn. & Pac. R. R. Co., and applied it to the forfeiting act of July 6, 1886 (24- Stat. 123, c. 637), which declared all lands adjacent to and coterminous with the uncompleted portions of the main line of the road to be “forfeited and restored to the public domain.”
The appellant cites the case of United States v. Tennessee & Coosa Railroad, 176 U. S. 242, 20 Sup. Ct. 370, 44 L. Ed. 452; but, as we understand it, the decision is directly against the appellant’s contention. The court in that case considered Act Sept. 29, 1890, c. 1040, 26 Stat. 496 (U. S. Comp. St. 1901, p. 1598), which provided that:
“There is hereby forfeited to the United States, and the United States hereby assumes the title thereto, all lauds hereinbefore granted to any state or to any corporation to aid in Hie construction of a railroad opposite to and co-terminuous with the portion of any such railroad not now completed and in operation, for the construction and benefit of which such lands were granted and all such lands are declared to be a part of the public domain.”
And it held that it did not affect lands opposite a completed road, and that such lands were not thereby forfeited or resumed, but the ourport of the decision was that lands opposite uncompleted portions of the road were forfeited.
But the appellant contends that the act of June 26, 1906, is not to be considered on the demurrer to the second amended bill, for the reasoti
The forfeiture act excepts from its operation all cases in which, at the date of its approval, the construction of a railroad is progressing in good faith. The appellant contends that in the second amended bill there are two averments which show that its road is within the terms of this proviso. These averments are, first, the allegation, in paragraph 12, that at all time since its incorporation the appellant “has been and now is actively engaged in prosecuting the said enterprise.” But this is clearly insufficient. The appellant may have been actively engaged in prosecuting the enterprise, and at the same time it may have done no act of construction of a railroad.
The other averment is in paragraph 13. It is that the appellant “is now, and has been for some time prior hereto, actually and actively engaged in the building and construction of a grade for its railroad therefor and thereon, and is now expending, and has heretofore expended, large sums of money in and for said construction and has completed the grade upon some portion thereof.” The question is: At what time does this averment speak? The original bill had been filed on February 2, 1906. The second amended bill was filed on September 17, 1906. In neither the original bill nor the amended bill was there any allegation of any act done in the direction of the actual construction of a railroad. It first appears in the second amended bill that the appellant “is now, and for some time prior hereto” has been, engaged, etc. The appellant invokes the general rule that amendments germane to the bill relate back to the time when the bill was
The decree of the Circuit Court is affirmed.
ROTH. — The following is 1lio memorandum decision of Hanford, District Judge, on application for injunction and on demurrer to amended bill of complaint, filed September 5, :1900.
This cause has been argued and submitted upon the complainant’s application Cor a preliminary injunction and upon a demur • rer to the amended bill of complaint, which alleges as the sole ground of demurrer that this court has not jurisdiction of the subject-matter of the suit. The parties are both corporations of the state of Washington, both proposing to build a railroad on the north side of the Columbia river, and the complainant claims title to a right of way crossing public land of the United States, acquired by compliance with the act of Congress granting to railroads the right of way through public lands, approved March 3, 1875 (18 Stat. 482, c. 152 [U. S. Comp. St. 1901, p. 1568]). The fourth section of the act provides that in case of nonuser for a period of live years the right of way granted shall be forfeited, and the bill shows affirmatively that the complainant has not commenced the construction of its proposed railroad, and that the proceed
I am convinced that the amended bill sets forth a controversy involving questions of federal law, and that this court would have jurisdiction of the case if grounds for equitable relief existed. Viewed in the light most favorable to complainant, the prayer of the bill is unrighteous; that is to say, it is contrary to natural justice for the complainant to hold all of the right of way, 200 feet wide, which it has not earned, and be permitted to obstruct another railroad company having the ability and will to render the public service which is the consideration for the grant. Manifestly the purpose of the grant was to facilitate the building of railroads, and the provisions of the third section of the act plainly show a legislative intention to guard against the possibility of the grant being perverted so as to create a monopoly.
There is a different reason, however, for holding that the suit is not cognizable in a United States Circuit Court, viz.: (a) The suit is in equity, (b) The principles of equity, and section 723, Rev. St. U. S. (U. S. Comp. St. 1001, p. 583), positively prohibit the maintenance of suits in equity where a plain, adequate, and complete remedy may be bad at law. (e) The object of the suit is to protect a dry, legal title to real estate by a party out of possession, which title is disputed, and an adverse claim of title is asserted by the defendant in possession, so that the complainant has a plain, adequate, and complete remedy at law in the form of an action to recover possession, which is maintainable at law, and the recognized appropriate form of proceeding to obtain en adjudication of a controversy with respect to the legal title to real estate.
The complainant is not in court asking protection in the actual prosecution of the building of a railroad upon a right of way of which it has taken actual possession. On the contrary, it appears affirmatively by the complainant’s pleadings that construction has not been commenced, and that the defendant is in possession of the right of way. These facts differentiate the case from Denner & R. G. R. Co. v. Alling, 99 U. S. 463, 25 L. Ed. 438. Only a dry, legal title is claimed, and that title is disputed by the defendant, it claiming the same property by a title adverse to the complainant; and there is another suit pending, brought by defendant, to secure, an adjudication of the adverse claims of the respective parties, and it is not pretended that irremediable mischief, going to the destruction of the substance of the estate, is being done. Hence 1here is no ground for an injunction, which is the principal relief prayed for. Erhardt v. Boaro, 113 U. S. 537, 5 Sup. Ct. 563, 28 L. Ed. 1116. The defendant being in possession, if the complainaut has the legal title, as it claims, an action of ejectment, in which the parties would have a right to a jury trial, is the proper form of procedure, and affords an adequate and complete remedy. Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276. 34 L. Ed. 873; M., K & T. Ry. Co. v. Roberts, 152 U. S. 114, 14 Sup. Ct. 490. 38 L. Ed. 377; New Mexico v. U. S. Trust Co., 172 U. S. 171, 19 Sup. Ct. 128, 43 U. Ed. 407.
I can conceive of a case in which an injunction might be properly issued to restrain a competitor from vexatiously interfering in proceedings to acquire a right of way for a projected railroad, and I concede that controversies involving only equitable or inchoate rights of rival companies with respect to right of way franchises may he cognizable in equity. An instance which X have in mind is the case of Sioux City & D. M. Ry. Co. v. Chicago. M. & St. P. Ry. Co. (C. C.) 27 Fed. 770. In the statement of that case Judge Sliiras said: ‘‘There is but one controversy in the cause, and that is: Which company has the prior, and therefore better, right to the occupancy of the premises in dispute, for the purposes of constructing and operating its line of railway?” And I agree fully with that part of the opinion of the learned judge, in which he said: “It is certaiuly equitable that a company, which in good faith surveys
When only equitable rights constitute the subject of a lawsuit, the parties have recourse only to a court of equity, and courts of equity are established for the express purpose of adjudicating such rights. The case last cited has a resemblance to the case at bar in this: that the matter in dispute was the right of way for a projected line of railway; but the two cases are in contrast, because in this case the complainant has invoked the jurisdiction of a court of equity, as I have before stated, to protect a dry, legal title to real estate, when it was unnecessary to appeal to a court of equity, there being no obstacle in the way of obtaining adequate relief, and substantially the same relief, by an action in a court of law. In deciding- ilio question submitted, the court cannot assume that there are equitable rights (o be adjusted, but is bound, in rendering a decision, to treat the averments of the bill of complaint with respect to the complainant’s title and the defendant’s possession as true.
The amended bill suggests that it is necessary to sue in equity to avoid a multiplicity of suits; but the facts pleaded do not support that conclusion. The agents and servants of the defendant engaged in constructing its railroad would not be necessary parties to an action at law to recover possession. By reason of privity, a judgment against the defendant would be as conclusive upon them as a decree in this case in which they are not parties. 2 Ballinger’s Aim. Codes & St. § 5518 (Pierce’s Code, § 1154). All of the rig-lit of way situated within this judicial district is a unit, and there need be but one action to secure a complete adjudication of the whole controversy between the parties to this ease. If detached sections of the right of way should be deemed subjects of separate causes of action, cognizable in different counties, still only one action would be necessary, because the Code of Civil Procedure of this state provides that an action may be prosecuted in the county in which the subject, or some part thereof, is situated, and that several distinct causes of action may be joined in one complaint. 2 Ballinger’s Ann. Codes & St. §§ 4852-4942; Stevens v. Perry (C. C.) 48 Fed. 7.
The complainant’s application for an injunction is denied, and the demurrer to the amended bill of complaint is sustained.