| U.S. Circuit Court for the District of Western Pennsylvania | Jun 15, 1901
The petition of Mary C. Delafleld sets forth that she is a citizen of the state of New York; that under and by authority of the act of assembly of the commonwealth of Pennsylvania, approved the 25th day of May, 1887 (P. L. 267), the city of Pittsburg, a municipal corporation, and citizen of the state of Pennsylvania, located in the Western district thereof, by its duly constituted authorities passed an ordinance approved the first day of May, 1901, for the condemnation and taking of two pieces of land, particularly described in the ordinance, belonging to the petitioner, situate in the township of O’Hara, Allegheny county, and within the Western district of Pennsylvania, and has condemned, taken, and appropriated the same for the purpose of a filtration plant, and of improving the water supply of said city; that no settlement of the damages for the taking has been made with her, and no compensation has been paid to her; and that the matter in dispute between the city and the petitioner exceeds the sum of $2,000, exclusive of interest and costs, — the value of the lands so
“Under and in pursuánee of said act of assembly and of tbe laws and constitution of tbe United States, your petitioner presents tbis, ber petition, and prays your honorable court to appoint.five disinterested freeholders of said Allegheny county, tó serve as viewers to assess tbe damages proper to be paid to your petitioner for tbe property appropriated, and to fix a time for tbe meeting of said viewers.”
The city of Pittsburg has moved the court to dismiss the petition, and in support of the motion assigns the following reasons:
“First. The proceeding sought to be' instituted is a statutory one, under tbe authority of tbe act of assembly of tbe state of Pennsylvania, approved May 25, 1887, which provides that tbe petition for tbe appointment of viewers to assess tbe damages to be paid to tbe owners for tbe property or rights appropriated shall be presented tó tbe court of common pleas of tbe county in which tbe land is situated, and your honorable court has therefore no jurisdiction in the premises.
“Second. Tbe act of assembly approved May 25, 1887, under which' tbis proceeding is sought to, be brought, requires that a bond be filed in tbe court of common pleas of tbe county in which the land is situated before a petition can be presented for the appointment of viewers; and no bond having been filed covering the property described in the petition, your honorable court has no jurisdiction.”
The act of congress of March 3, 1887, as amended by the act of August 13, 1888, provides that “the circuit courts of the United States shall have’original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000,” in which there shall be a controversy between citizens of different states. In Weston v. City Council, 2 Pet. 449" court="SCOTUS" date_filed="1829-03-18" href="https://app.midpage.ai/document/weston-and-others-v-the-city-council-of-charleston-85642?utm_source=webapp" opinion_id="85642">2 Pet. 449, 464, 7 L. Ed. 481, 486, Chief Justice Marshall, discussing the scope of the term “suit,” said:
“The term is certainly a very comprehensive, one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords him. The modes of,proceeding may be various, but, if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought is a suit.”
Hence in Kohl v. U. S., 91 U.S. 367" court="SCOTUS" date_filed="1876-03-27" href="https://app.midpage.ai/document/kohl-v-united-states-89190?utm_source=webapp" opinion_id="89190">91 U. S. 367, 375, 23 L. Ed. 449, it was held that a proceeding by the United States to take land for public uses by condemnation was a suit at law, of which a circuit court of the United States had jurisdiction, 'under the judiciary act of 1789. In Gaines v. Fuentes, 92 U.S. 10" court="SCOTUS" date_filed="1876-03-20" href="https://app.midpage.ai/document/gaines-v-fuentes-89236?utm_source=webapp" opinion_id="89236">92 U. S. 10, 20, 23 L. Ed. 524, it was held that a controversy between citizens of different states, in the sense of the statute, is involved whenever any property or claim capable of pecuniary estimation is the subject of litigation, and presented by the pleadings for judicial determination. Here the petitioner is seeking compensation for the land taken from her. Her right to compensation does not depend upon the state statute. In lieu of the ancient remedy by action of trespass, the legislature has created a new form of procedure, but the statutory proceeding is nevertheless a suit of a civil nature. How the law of a state limiting the remedies of its citizens in its own courts cannot be applied to prevent the citizens of other states from suing in the courts
“The fact that the Colorado statute provides for the ascertainment of damages by a commission of three freeholder^, unless at the hearing a defendant shall demand a jury, does not make the proceeding from its commencement any less a suit at law, within the meaning of the constitution and acts of congress and the previous decisions of this court. The appointment of the commissioners is not, as in the case of Boom Co. v. Patterson, 98 U.S. 403" court="SCOTUS" date_filed="1879-03-18" href="https://app.midpage.ai/document/boom-co-v-patterson-89880?utm_source=webapp" opinion_id="89880">98 U. S. 403, 25 L. Ed. 206, and the Pacific Railroad Removal Cases, 115 U.S. 1" court="SCOTUS" date_filed="1885-05-04" href="https://app.midpage.ai/document/union-pacific-railway-company-v-myers-2477913?utm_source=webapp" opinion_id="2477913">115 U. S. 1, 5 Sup. Ct 1113, 29 L. Ed. 319" court="SCOTUS" date_filed="1885-05-04" href="https://app.midpage.ai/document/union-pacific-railway-company-v-myers-2477913?utm_source=webapp" opinion_id="2477913">29 L. Ed. 319, a step1 taken by the party seeking to make the appropriation ex parte, and antecedent to the actual commencement of the adversary proceeding inter partes, which constitutes a suit in which the controversy takes on the form of a judicial proceeding, because, under the Colorado law, the appointment of the commissioners is a step in the suit, after the filing of the petition and the service of summons upon the defendant. It is an adversary judicial proceeding from the beginning. The appointment of commissioners to ascertain the compensation is only one of the modes by which it is to be determined. The proceeding is, therefore, a suit at law from the time of the filing of the petition and the service of process upon the defendant.”
So, under the Pennsylvania act of 1887, the proceeding in court is an adversary judicial proceeding from the beginning. It is certain that if the city had filed in the state court a petition under the act of 1887 for the ascertainment of the compensation to be paid Mary G. Delafield, the cause would have been immediately removable to the circuit court of the United States by the landowner. Is there, then, any good reason why she might not institute the proceeding in the first instance in this court? I think not. This conclusion accords with the view expressed in 2 Lewis, Em. Dom. § 315, where it is said:
“It may be regarded as settled that a condemnation proceeding pending in the state courts, whether by appeal from commissioners or otherwise, may be removed to the federal court of the proper disti-ict when a proper case is made out. From these cases it would seem to follow that such proceedings, when instituted in a court in the first instance, may be brought in the federal court, provided the requisite conditions as to citizenship and value exist.”
The ordinance here declares and enacts that "the said city does hereby elect and resolve to take, use, and appropriate the said real