FEDERAL REPORTER.
vol. 44.
The demurrer assigns several grounds, among others want of jmisdiction in the court, for the reason that it does not appear that the matter to exceeds the sum or value of in dispute between the $2,000. In my opinion this objection to the jurisdiction is well taken, and fatal to the case, and therefore it will be unnecessary to consider by an of the bill either of the other q,uestions raised, the particular defect m{mtioned shall be cured.'Byt-he statute defining the jurisdiction of the circuit courts of the United States it is made essential to the jurisdiction of the court that, except in certain specified dispute must exceed the sum or :value of $2,000, cases, aqd costs. .25 U. S. St. 433.' invoking aid or protection from a circuit court of the United States must show affirmatively all the facts necessary to entitle him to the relief prayed for, and to authorize the court to grant it; and the sum or value of the matter in dispute, like every other jurisdictional fact, must be distinctly Co., 18 Fed. alleged in the biU.Fost.Fed. Pr.. §108,; U. S. Rep. 708. The case has been argued· the part of the plaintiffs as if the railway (which is allege,d to be Qf.the value of $6,00Q) were the matter in dispute; but I cannot agree that it is so. The suit is brought of a railway,' simply to restrain the use, by 'a party not the and the computirig the value of the matter in di$pute is not the same as in a suit to abate a nuisance, RS, for example, to remove an obmentioned by destruction .0£, this ,rail- . struction ,to tpe way. Tbe.',OQui't cannot by any process cause a destruction of the rail'way, or impair its value; because it appears upon the faceofthebill that parties not within the jurisdiction of this court have rights respecting it, which rights, of course, cannot be affected by any decree the court can lawfully make. The matter in dispute between these plaintiffs and shows, is the right of the defendant to operthis defendant, as the ate the railway mentioned. From· the allegations of the bill itCllnnot be ascerta,ined what the value of that right is, or whether it is of any value. .For. this rea$on only the demurrer' will be
on
,f
,UNITED
STATES v.TAYLOB.
: (OircuU Cowrt, D. Washington,S. D. November '1, 1890.)
Where a territorial c.ourt, by its final decree in a case, granted an lnJunction for the protection of a continuing right, the 'ease is after such deoree still a "pending" case, wit4in, tJ;1emeaning. oJ:" the twenty.tl;lird. section !>f· the alit providing for the creation of 'state governments for Washfngton an? other'territories, (25 St. U, S. 676.) and is traIisferable to the court which 'by sald act is made the successor of . saillterritorlal,l'0urt..,. . ' . . . . . 9. SAME.:.-J'URISDICTION-CON'l'EMPT-JUDGMlllNT. . . , ThejudgmeDtof a teri'i.tol1al courtin a case which, after the territory became a state, was lawfully to· a United States circuit court, is to be regarded: as having, by adoption,become a judgment of the circuit court, whioh QOurt has
I., ,
A
·
.uNITED STATES '/).' TAYLOR, .
3
the same power to judgment andpullish as ·.contempt any willful disDbedience of its mandate as it would have if the judgment were.originally its own. ' . '.' . .. (S1lZzabuB by the OOurt.)
In Equity. ,-,J i
P.B. Winston, U. S. Atty·. W. Lair Hill, for respondent. HANFOR'D,
Motion to discharge
J. This is'a proceeding growing ()ut of a suit in equitJ' broughtb'ytha.United States to prott'ct certain Indians in the enjoyment of fishery pl'ivileges' guarantied to them by the government in a treaty made with them. The original case was commenced July 7, 1884, in the district court of the fourth judicial distrlct of the territory of Washington, holding terms atYakima. Thefirlal decree in the case was rendered by that court in theyear1887,by which decreethe court granted a perpetual injunction against,the defendant, Frank Taylor, forbidding the doing by him ofcertain acts, among others, the obstructing ofa way across premises of which he was owner,and which he has since conveyed to O. D. Taylor, who is accused in the present proceeding of violating the injunction by obstructingsaid way. To a cause why he should not be punished for Cdntempt, the respondent has interposed a motion by ,,'hich he asserts that,' as' to said case, this court is not successor to the court which granted the injunction, and denies that this court has any power to punish him fora: contempt of court committed by disobeying an order of the territorial district court l or to execute the decree of that court. It is conceded that the case is one of which this court might have had diction under the laws of the United States had it (the court) existed at the time of the commencement of the suit. But it is contended that, because a final decree had been previously rendered, the case had terminated, and was not 'a: pending case at the time the territorial court passed out of existence uppn the admission of the state of Washington info the Union; and, therefore, in respect to this case, this court is not the successor of the territorial court. The decision upon this point involves a definition of the as used in the twenty-third section of what is commonly called the "Enabling Act." 25 St. U. S. 676. . In my opinion this act, when all its provisions are considered, manifestly shows that congress intended to fully protect and preserve not merely the rights of parties in a few select and especially favored ones of the cases commenced in the territorial courts, but every right of every party in every case which at any time had been or should be commenced in those courts during their existence; and the words "all cases, proceedings,. and matters * * * pending," usedin theact, must be construed to embrace all cases, proceedings, and matters initiated in the territorial courts, and in which at the time of the actual transformation of the territorial judicial l!ystem into the state and national systems there should be yet any vitality, force, or virtue. I have heretofore decided, in a case which had proC'leded to judgment in a territorial court, that thecciurt,
FEDERAL REPORTER,
ceed with it" from the precise point to which it had already progressed, exactly as if the case had been commenced and proceeded with to the same point in that court. This view is supported by the court of appeals of New York in the case of Wegman v. Childs, 41 N. Y. 159. and in that case other decisions are cited and followed. Certainly rights established by a final jUdgment ought not to be held to have heen forfeited or sacrificed by this statute, if by any reasonable or fair construction ofits terms a different conclusion can be arrived at. The construction I have given to the act dqes lead to a different and more satisfactQry conclusion.' The construction contended for by counsel for the respondent does not, for the word "pending" is used in the clause descriptive of the class of cases and proceedings to be transferred to the state courts, and bears exactly the same"relation to those cases that it does to the cases and proceedings which,are transferable to the national courts, and it is not possible to exclude this court from taking jurisdiction of a case on the ground that because it had proceeded to judgment in a territorial court it then ceased to be a pending case, and yet hold that by virtue of this act of congress the courts of this state could take cognizance of the same case. I hold, therefore, that the case has been lawfully transferred to this court, and also that, being so transferred this court, of necessity, must adopt as its own all the proceedings and orders of its predecessor in the case, including the judgment, and must exercise the same powers which that court would now have if it had continued to be, including the power to punish a violation of the injunction. The motion to discharge the rule is therefore denied. " HAMII,TON
which,as to that case, was successor to the territorial court, should pro-
v.
THE WALLA WALLA.
(District Court, D. Washington, N. D. August 26,1890.)
1.
SUCCESSOR OF TERRITORI.L COURTS-,ADMIRALTY-ApPEAL.
An admiralty cause having been to the supreme court of Washington Territorr. but not docketed in that court prior to the admission of the state into the Union, must necessarily be tl'l1,nsferred from the the territorial district court, which rendereil. the decree, to this court, which is as to all admiralty causes successor to the territorial court of original jurisdiction. Failure of the appellant to cause the transoript to be sent up and have the cause docketed in the circuit court before the beginning of the term is not such laches as to be deelDed an abandonment of thjl appeal, there having been heretofore no opportunity for trial of the cause in the circuit court, and no actual delay.
'
J.
The court will deny a motion for leave to issue an execution made after an appeal taken,and a considerable delay in causing a transcript of the record to be sent up, lind based on an assumption that the appeal has been abandoned, when it appears that a hearing of the cause in the appellate court has been actUally delayed by laches'on;the part of theappellan1i. I. · (SIlU4buB lYU th.6 Oourt.)
EXECUTION-IssUE AFTIIR ApPEAJ,-LA,ClIES.
.In' Admiralty. Richard Osborn, for libelant. J. C.Haines, for c.laimant.
