Eureka & K. R. R. v. California & N. Ry. Co.

109 F. 509 | 9th Cir. | 1901

GILBERT, Circuit Judge,

after stating the facts as above, delivered the opinion of the court.

Did the circuit court err in sustaining the demurrer to the hill? The appellant contends that a case of equitable cognizance is presented, for the reason that it appears from the bill that the appellee, unless enjoined from prosecuting its condemnation suits, will invade the vested rights of the appellant; and it invokes the doctrine that where a railway company locates its line of route, and proceeds with due diligence in the construction of its road, it acquires a vested and exclusive right to place and operate its road upon the line so located, and another company will he enjoined from interfering therewith. The hill, however, does not show that the appellant has acquired title to the right of way of the road which is in construction, nor that the appellee is trespassing thereon, or in any way actually interfering with the appellant’s occupation thereof. The substance of the averments of the bill is that the appellant has surveyed and located its right of way, and has filed three complaints for condemnation of a certain specified portion thereof, and that at a later date the appellee has commenced three actions for the condemnation of the same portions of the right of way, and that nothing further has been done in any of the actions. The Code of Civil Procedure of California (section 124(5) makes the following provisions in regard to such actions:

“All persons in occupation of, or having or claiming an interest in any of (lie property described in the complaint, or in the damages for the taking thereof, though not named, may appear, plead, and defend, each in respect to ids own property or interest, or that claimed by him, in like maimer as if named in the complaint.”

It is clear from this provision that the appellant has the right to intervene in the actions brought by the appellee, and therein assert all its rights and secure all the protection which could he afforded by the present suit. The remedy at law, therefore, is adequate and complete. It extends to every question which is presented in the bill.

It is earnestly contended by the appellant that a ground of equitable jurisdiction is presented in the hill, in that, according to its allegations, a multiplicity of suits will be avoided. The suits which are sought to he enjoined have already been begun by the appellee. The bill does not state whether or not the appellant has been made a party thereto. If it he not yet a party, it lias the right to intervene and he made a party. Equity in certain cases will entertain a suit brought by a single party plaintiff against a single party defendant, where the sole ground of equitable jurisdiction is the prevention of a multiplicity of suits, but it will do so only upon allegations of the hill which show that in such single suit the rights of all the parties involved in the subject-matter of the controversies may he determined as fully and completely as if the several suits had been prosecuted to their conclusion. Pom. Eq. Jur. § 254. The bill in the present case makes no such showing. It is a suit by one corporation to enjoin another from prosecuting three several actions which have been begun by the latter, not against the complainant in the bill, but against parties none of whom are brought into the present suit. It is evident at the first glance that upon the case made in the bill the court may not be able to do full and complete justice in the premises, and in the one suit determine all the matters which may be at issue in the three actions. The sole object of the bill is to enjoin the appellee from proceeding with the actions at Jaw. It presents reasons not for drawing into one suit in equity all the matters that are involved in those actions, but reasons for denying the right of the appellee to prosecute the actions. If, upon issue joined and proofs taken, the appellant should fail to sustain his allegations, the substantial rights of both parties to this suit, and of all the parties defendant to the condemnation suits, would still remain to be adjudicated in the several actions which are pending. It is in the very inconclusiveness of the result that may be attained in a suit such as this that the objection to the jurisdiction of a court of equity on the ground of preventing a multiplicity of suits consists. The court cannot see with certainty that the suit will end the litigation. The condemnation of a tract of land for a right of way by a railroad under the statutes of California does not necessarily exclude another company from obtaining rights in the same tract. In section 1240 of the Code of Civil Procedure it is said that all rights of way so taken shall be subject to be connected with, crossed, or intersected by any other right of way. “They shall be also subject to a limited use in common with the owner thereof when necessary.” While the appellant may have the prior right of condemnation, the appellee may possibly, nevertheless, acquire rights in the same premises, or a portion thereof. Southern Pac. R. Co. v. Southern Cal. Ry. Co., 111 Cal. 222, 43 Pac. 602. We think the demurrer to the bill was properly sustained. The decree will be affirmed.