168 F. 128 | U.S. Circuit Court for the District of New Jersey | 1909
The question presented by this case is whether the municipal authorities of Jersey City shall be enjoined from interfering with the construction by the complainant, its contractors and agents, of a water main on the complainant’s right of way across West Side avenue in Jersey City. The complainant’s railroad crosses
The complainant is the Delaware, Lackawanna & Western Railroad Company only. By an arrangement between it and the Hudson County Water Company the complainant undertook, with its own force of men, but at the expense of the water company, to lay the portions of the pipe line crossing the public streets of Jersey City. In attempt
The defendant insists that the Hudson County Water Company is an indispensable party to the suit. This defense is not expressly presented by the answer; but, if the alleged defect be vital to the relief sought, the objection may be good. The contract shows that the pipe line, when láid, will be the property of the water company, and not the railroad company; that the water company will supply the line with water and operate it; and that it may possibly continue to operate the line, on the railroad company's property, 25 years after the railroad company ceases' to take water from it. It further appears, as already stated, that the work which the railroad company is attempting to do in the laying of those parts of the line which cross the public streets of Jersey City is for and at the expense of the water company. It follows that the water company has a vital interest in the result of this suit, and might, except for a fact to be hereafter mentioned, have properly been joined as a party hereto.
But the test is whether it is an indispensable party. Can this court, upon the pleadings in their present form, decree such an injunction as is prayed for? To do so means that the water company, and not the railroad company, shall be permitted to continue to tear up the public streets of Jersey City without supervision by or regulation of the city authorities. Conceding, for the purposes of this case, as counsel for the complainant contend, that the railroad company may, under its chartered powers, construct its necessary works across the public streets without municipal consent, and conceding, further, that what it may itself directly do it may have another party do for it, such exemption from municipal control has relation only to its exercise of its own franchises. The franchise to build and operate the water system described in the record of this case, if there be any, is the franchise of the water company, and not the railroad company. The contract shows that the system is designed to be used by the water company-in supplying the general public, as well as the railroad company, with water; and after 25 years, if the railroad company then concludes to take its supply of water from some other party, the water company may still continue to use the system for 25 years longer in supplying the general public. These facts show that the railroad company is here asking for an injunction the effect of which, if granted, will be directly to further the interests of the water company and only indirectly to further its own interests.
Thp defendant insists that as against the water company it has defenses it may not be able successfully to invoke as against the railroad company. For example, as against the water company the defendant may have a control over its streets not possessed as against the railroad company, and may have a vested right to furnish water to the general public from its municipal waterworks to the exclusion of the water company. The defendant insists that it has such defenses. It seems to me clear that an injunction ought not to issue upon the present state of the pleadings. While the nonjoinder of the water company was not objected to in the defendant’s answer, the court cannot, upon any principles of equity jurisprudence, make a decree, primarily for the benefit
The contract between the railroad company and the water company is annexed to the bill of complaint and made a part thereof. The defect above mentioned was therefore apparent on the face of the bill, and was demurrable for want of a proper and indispensable party. The objection having been raised only at the argument, the court, if the case were a proper one for amendment, might afford the complainant an opportunity to amend its bill. But the jurisdiction of this court depends on proper diversity of citizenship of the parties. Tor the purpose of determining the question of jurisdiction, the alignment of the parties will be fixed by their actual relation to the controversy, without regard to their position on the record as complainants or defendants. If the water company be brought in as a party complainant or defendant, since its interest in the controversy is with that of the railroad company and is opposed to that of Jersey City, it must, under the provision of Act March 3, 1875, c. 137, § 1,18 Stat. 470 (U. S. Comp. St. 1901, p. 508), which gives this court jurisdiction of “a controversy between citizens of different states,” be aligned with the railroad company as a party complainant. Pacific R. R. v. Ketchum, 101 U. S. 289, 298, 25 L. Ed. 932; Groel v. United Electric Co. (C. C.) 132 Fed. 252. As the record would then show a citizen of the state of New Jersey as one of the complainants and a citizen of the same state as defendant, this court would be without jurisdiction to decide the cause.
The suggestion, made on the argument, that the court may ente.r a decree so restricted in its terms that the water company shall not be allowed to make service connections for the general public, or for any other party than the railroad company, and that the water company will consent to such a decree, does not answer the objection. By such a procedure the water company would virtually become a party to the suit. The court cannot thus acquire jurisdiction of the cause.
The bill must be dismissed, with costs.