131 F. 115 | U.S. Circuit Court for the District of Northern West Virginia | 1904
The bill of Coster et al., trustees, was filed March 13, 1899, its purpose being the foreclosure of the underlying mortgage of the Parkersburg Branch Railroad Company, dated July 1, 1879. In accordance with the prayer of said bill John W. Davis was appointed receiver of all the property of said railroad company, and he duly qualified as such officer. Pending the proceedings in that case the Buckhannon & Northern Railroad Company, on the 27th day of October, 1903, filed its petition therein, asking permission to institute and prosecute in the circuit court of Taylor county, W. Va., certain condemnation proceedings against the said receiver, the object of which was to secure a crossing for the Buckhannon & Northern Railroad Company over the railroad and right of way of the Parkersburg Branch Railroad Company at a point within the corporate limits of the city of Grafton, in Taylor county, W. Va. It was set out in the petition that the Buckhannon & Northern Railroad Company is a corporation .organized under the laws of the state of West Virginia for the purpose of constructing and operating a railroad for public use from the town of Buckhannon, in Upshur county, to Fairmont, in Marion county, W. Va., and thence on to the boundary line between the states of West Virginia and Pennsylvania; and that in constructing its railroad it is necessary for the petitioner to cross at grade the right of way and roadbed of the Parkersburg Branch Railroad at the point desired to be condemned for that purpose, and that such crossing was necessary in connection with the construction of petitioner’s railroad; that said petitioner and the Parkersburg Branch Railroad Company could not agree upon the amount of compensation to be paid for such crossing, nor upon the point at which it was to be made, nor the manner of making the same. This court, on consideration of such application, granted permission to the Buckhannon & Northern Railroad Company to institute and maintain a suit against John W. Davis, receiver of the Parkersburg Branch Railroad Company, relative to such crossing; the
This court, by its order appointing John W. Davis receiver, assumed the administration of the assets of the Parkersburg Branch Railroad Company; all of which the court took into its possession for the benefit of those it might thereafter find entitled to the same. It is the duty of this court to see that the receiver not only properly and faithfully performs his duties, but also that every reasonable facility is afforded him to do so, and that the property with which he is intrusted, and for which he is responsible, is duly protected by its orders and its officers. Would it be fair to the receiver and to those he represents for this court to transfer to another jurisdiction the control of any portion of the property for which such officer is responsible? If the court submitted to such other jurisdiction the questions relating to the condemnation of the property, would the receiver’s liability therefor cease, and, if so, would he be accountable for the same? Would it be just to those entitled to the property, or to the funds arising from its sale — parties who, under the law, have the privilege of entering this jurisdiction, and who having entered it insist on their right to remain therein — for this court to require them to litigate in another tribunal matters which, as stated by the party presenting them, will necessarily have a direct and important bearing on the property and the funds involved in this suit ? I am not favorably impressed with the contention of counsel for the petitioner that the Buckhannon & Northern Railroad Company could have maintained its suit against this receiver in the circuit court of Taylor county, W. Va., without first having obtained the permission of this court so to sue him. The act of Congress relating to such suits au
I do not think it would be just to the interests involved in this suit for this court at this time, under the pleadings as they now exist, to pass upon the questions argued by counsel relating to the method of proceeding to condemn the crossing described in the petition of the Buckhannon & Northern Railroad Compaq, nor would it, in my judgment, be proper for the court to now construe the sections of the Code of West Virginia under which it is claimed that such proceedings may be prosecuted. The order heretofore entered, granting permission to sue, will be so enlarged as to permit the petitioner to institute in this court and in this cause such proceedings as it may deem proper, having for their object the securing of the crossing referred to in the petition mentioned. To such proceedings the receiver can set up by plea, answer, or demurrer such defense as he may conclude to be proper, and the matter can then come on for hearing and disposition in the regular manner.
The injunction heretofore granted, restraining the Buckhannon & Northern Railroad Company from prosecuting its proceedings for cor demnation in the circuit court of Taylor county, will be continued in force.