аfter stating the case: The record presents •two questions for decision: 1. Is the defendant Coast Line Railroad Company, of Virginia, a foreign corporation ? 2. Is the controversy, set out in the complaint, separable as between the plaintiff ,and the two corporations? It will be convenient to dispose of the second question first. The Removal Act of 1887, sec. 2, provides that only those suits may be removed, by reason of diverse citizenship, when the controversy is wholly between citizens of different States. A large number of decisions are to be fоund in the State and Federal Reports in which the term “separable controversy” is discussed. It is not always easy to say upon which side of the line dividing those cases, in which for this cause suits may be or may not be removed, any given case falls. The tendency of the courts has been to narrow the line of cases which are removable under the act. The petitioner is required to comply strictly with the provisions of the statute, and bring the case clearly within its terms. Hughes on Fed. Proc., 302.
T'o constitute a separable controversy “the action must be one in which thе whole subject-matter of the suit can be determined between the parties to the separable controversy, without the presence of the other parties to the suit. Moon on Removal of Causes, sec. 140. The question in respect to *141 tbe separability of the controversy must be determined upon an examination of the plaintiffs complaint. Allegations in the petition respecting the defenses of the several defendants are not to be considered.
In
C. & C. Ry. Co. v. Dixon,
Bellaire v. B. & O. Railroad Co.,
In
Torrence v.
Shedd,
The controversy which the plaintiff, according to his complaint, has with the defendants grows out of his alleged easement or rights in the streets upon which his dwelling is located, and the town common in front of his dwelling, by virtue of the trusts declared in the deed from ITowell to Moir and others, and subsequent acts of the General Assembly, and the alleged trespass upon or wrongful interference with such rights for which he claims damages. In addition to this cause of action, he says that the interference is continuous ; that other and further acts are' threatened by said corporations, for the prevention of which he asks injunctive relief. While he sets out, at length, the acts and conduct of the several defendants, he alleges that they are operating and maintaining their roads, in the matter of which he complains, pursuant to an existing agreement between them, and that the defendant the East Carolina Railroad Company is *144 owned or controlled by tbe other defendant, the Atlantic Coast Line Railroad Company.
It is manifest that the alleged wrongs of which he complains, and the continuance of which he seeks to prevent, are inflicted by the acts of both defendants, and for the purpose of this discussion pursuant to an agreement between them. It requires neither argument nor authority to show that if two railroad companies, by agreement, but each using separate tracks and cars, entered upon and occupied plaintiff’s premises, without legal right or authority, he would have a right of action against them jointly. If A and B, by an agreement so to do> drive their horses and wagons-upon my land, can there be any question that I may join them in one action for damages, and certainly before they have done so, I may maintain a bill, assuming that I have a right to invoke injunctive relief against them jointly to restrain the threatened trespass. It will be no answer to my action to say that they may have been sued separately. I am entitled to so join them that at the end of the litigation I am compensated in damages or protected against further interference аgainst both the joint wrong-doers.
We express no opinion upon the merits of the controversy. Assuming the truth to be as alleged, and that the complaint states either an actionable injury or threatened illegal interference with plaintiff’s rights, Ave are., of the opinion that he is entitled to prosecute his action against the defendants jointly, and that, .therefore, the controversy is not, for the purpose of removal, separable. The second question raised by the record is of more difficulty because of the allegations in the complaint and сondition of the record.
It is alleged that 'the petitioning defendant, called in the pleadings “the Atlantic Coast Line Railroad Company, of Virginia,” is “a corporation organized and existing under
*145
and by virtue of the laws of the State of Virginia.” We note that the words “of Virginia” are separated from the word “Company” by a comma. We supposed that the plaintiff referred to and was prosecuting his action against the corporation created by chapter 71, Public Laws 1899, under the corporate name of “The Atlantic Coast Line Company of Virginia,” but upon close inspection of the record it appears that the words “of Virginia” are intended to be descriptive of the domicile of the defendant corporation, “the Atlantic Coast Line Company.” This construction is sustained by reference to the petition, in which the corporation describes itself as “the Atlantic Coast Line Railroad Company.” The report made to the Corporation Commission, a public record of which we must take judicial notice,
State v. Railroad,
*148 It is elementary that a corporation is to be deemed a resident, or citizen, of the State in which it is created — its domicile of origin or creation. Clark on Corp., sec. 14. “The residence of a corporation is in the sovereignty by which it was сreated. It must dwell in the place of its creation and cannot migrate to another sovereignty.” • 7 Am. "and Eng. Enc., 694. This is plain enough, but when, by permission of the sovereignty of its creation, it consolidates with a corporation of another sovereignty, difficult and sometimes perplexing questions regarding its relation to the two sovereignties .arise.
The statutes and public records show that the Wilmington and Weldon Railroad Company, a' domestic corporation, has by permission of the Legislature become one of “the constituent roads” in a line of consolidated railways extending through six States. In the consolidation are a large number of other “constituent roads.” To say that each of these roads, chartered in six different States from Virginia to Alabama, have, by the consolidation, become citizens of the State of Virginia, is rather startling. If this result, so far as the Wilmington and Weldon Railroad Company is concerned, has been accomplished by virtue of the power conferred by the Act of 1899, ch. 105, in defiance of the express provision in the statute that it should continue a domestic corporation, it wоuld indicate an absence of power in the Legislature to guard the sovereign rights of the State in respect to corporations of its own creation. It would seem perfectly clear that a railroad corporation has no power to change its domicile. While the Legislature may permit a Virginia corporation to come into this State and consolidate with one of her own corporations, we cannot perceive how, in availing itself of such permission, the Virginia corporation may take the North Carolina сorporation out of *149 this State into Virginia and so adopt it that the State, by virtue of whose laws it came into existence .and continues to exist, loses jurisdiction, of it for the purpose of bringing it into her courts to answer for wrongs done her own citizens. While we do not concede that such would be the result of permission to consolidate, in the absence of restrictive words, certainly where,'in the statute conferring the power to consolidate, it is expressly provided that the corporation, together with any corporations with which it should consоlidate, should remain a domestic corporation, it would seem that such restriction would place the question beyond controversy.
The question involved in this appeal is essentially different from that presented in
Southern Ry. Co. v. Allison,
The conclusion to which all the authorities come, being founded upon the case of
Ohio and Miss. Railroad Co. v.
Wheeler, 1 Black (66 U. S.), 286, is thus stated by Judge Thompson in his valuable and exhaustive article on Corporations, 10 Oyc., 296: “If the consolidated corporation is sued in a State in which one of the constituent corporations is creаted, defendant cannot have the cause removed from the State Court to the Circuit Court of the "United States,
*152
because within, that State the corporation is a domestic corporation, and hence a citizen of that 'State; so that both plaintiff and defendant are in theory of the law citizens of the same State.”
Muller v. Downs,
The General Assembly of this State by Act of 1899, ch. *153 77, ratified 13 February, 1899, chartered tbe Atlantic Coast Line Eailroad Company of Virginia. Tbe preamble of tbe act recites tbe reasons wbicb induced tbe Lеgislature to grant tbe charter, and in section 2 enacts: “The said Atlantic Coast Line Eailroad Company of Virginia is hereby authorized and empowered to maintain and operate tbe railroad wbicb formerly belonged to tbe Petersburg Eailroad Company in this State,” etc. It will be observed by reference to this act that tbe only purpose of granting tbe charter was to enable tbe corporation, in connection with a corporation of tbe same name created by tbe Legislature of Virginia, to operate tbe portion of tbe Petersburg Eailroad located in this State. Tbe Virginia corporation of tbe same name is not “domesticated” under tbe “Craig Act,” Laws of 1899, cb. 62, but a new corporation was created in this State. Without entering into any discussion of tbe status of a’corporation created in this way, it is sufficient to say that while tbe defendant is described in tbe complaint as the “Atlantic Coast Line Eailroad Company, of Virginia,” tbe summons is served upon tbe agent of tbe “Atlantic Coast Line Eail-road Company,” who, in verifying tbe petition, so describes himself. Tbe petition is filed by tbe “Atlantic Coast Line Eailroad Company,” and in this name tbe corporation makes its reports to tbe State Corporation Commission and is referred to in “Poor’s Manual,” 1899, p. 397, and 1902, p. 199. We do not find that tbe “Atlantic Coast Line Eail-road Company, of Virginia,” makes any report to tbe Commission. It is probably one of tbe “constituent roads” of tbe defendant “Atlantic Coast Line Eailroad Company,” although it does not so appear in tbe reports, nor is any reference made to chapter 77, Laws of 1899. We notice further that no power is conferred upon tbe сorporation created by that act to consolidate, unless it be found in tbe charter of *154 the Petersburg Railroad Company of 1830 and chapter 149, Acts 1893, extending the charter of said corporation. It is true that the complaint alleges that the defendant corporation is a Virginia corporation, operating a railroad in this State. As we have seen, there is no statute which has been called to our attention, or which a diligent examination on our part discovers, authorizing the Atlantic Coast Line Railroad Company to operаte in this State otherwise than by consolidation with domestic corporations, nor is any such claim made by the corporation in its reports to the Corporation Commission. As a matter of law, the plaintiff is in error' in averring the contrary. The question involved is of far-reaching importance to the corporation and the citizens of the State. We are of opinion that the defendant Atlantic Coast Line Railroad Company, in respect to its “constituent roads,” domestic corporations, is a domestic corporation, and that, as between the plaintiff and itself, there is no diverse citizenship entitling it to remove the cause’ into the Federal Court. t
Affirmed.