HARTFORD &: O. W. R. CO. 1'. MONTAGUE.

227

HARTFORD & C. W. R. CO. v. MONTAGUE. (Circuit Court, D. Connecticut. May 9, 1899.)

1.

REMOVAL OF CAUSES-MoTION TO REMAND-TIME FOR FILING

It .Is the settled practice in the circuit courts or the United States In the Second circuit to allow a motion to remand to be made at once on the removal of a cause from a stAte court, without waiting for the next term, and, unless the record is filed by the removing defendant within a reasonable time, to permit it to be filed by the plaintilf.

2.

8UE-NATURE O. SUIT-STATUTORY PROCEEDING TO CONDEMN PROPERTY.

Under the statutes of Connecticut relating to the condemnation of property under the power of eminent domain, which delegate to a judge or a state court the power toflrst determine the right to tAke the property, and then to appoint a commission to fix the compensation, such a proceeding is not a suit at common law or in equity, of which a federal court would have original jurisdiction under the judiciary act of 1888, and hence ls not removable under such act.

Gross, Hyde & Shipman, for complainant. Edward D. Robbins, for defendant. TOWNSEND, District Judge. Motion to remand. The plaintiff. herein originally applied to a judge of the superior court of the state of Connecticut for the appointment of appraisers to estimate damages for the taking and occupation of certain real estate for railroad purposes, belonging to the defendant, in accordance with the provisions of section 3464 of the General Statutes of the state of Connecticut. Said judge having fixed a date for a hearing thereon, defendant seasonably removed the case into this court upon the ground that the controversy was between citizens of different states, and that the amount in dispute exceeded, exclusive of costs, the sum of $2,000. The plaintiff now moves to remand for want of juriBdiction, alleging that such proceeding is not a suit of a civil nature at common law or in equity, of which the circuit courts·of the United States are given original jurisdiction. It is claimed that, even if, prior to the act of March 3, 1887, as amended by the act of August 13, 1888, such a case could be removed into the federal courts, such right of removal was taken away by said acts, the effect of which is to provide that only such suits can be removed as might have been originally brought in the United States circuit courts. Railroad Co. v. Davidson, 157 U. S. 201, 15 Sup. Ct. 563. The preliminary question was raised by counsel for defendant that the motion to remand could not be heard before the beginning of the next term of the circuit court after removal. It appears that there has been much conflict upon this question between the different circuits. Hamilton v. Fowler, 83 Fed. 321; Kansas City & T. R. Co. v. Interstate Lumber 00., 36 Fed. 9. It has been the settled practice in this circuit for many years to allow the removing defendant a reasonable time in which to file the record, and, upon his failure 80 to do, to thereafter permit the plaintiff to file the record, and in either event to allow the plaintiff to move instanter to remand. The sole remaining question is whether this is a suit of which ilii.

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court would have original cognizance. provides:

The act of 1887, as amended,

"Any other suit ofa civil,nature at law or In equity of which the circuit courts of the United States are given jurisdiction by the preceding section * * * may be remo;ved Into the circuit court," etc.

The preceding section provides as follows:
"That the circuit court 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, when the .matter In dispute exceeds. exclusive of interest and costs, the sum or vaJue of two thousand dollars, * · · in which there shall be a controversy between citizens of different states."

Even if. this proceeding is a suit at law, within the interpretation of the earlier removal statute by the supreme court of the United States in Searl v. School Dist., 124U. S. 200, 8 Sup. Ct. 460, it does not necessarily follow that it is a suit of which the circuit court would have had original cognizance. It is purely a statutory proceeding, whereby the legislature of the state has conferred upon a judge of one of its courts the power to make the original order authorizing the taking of property within the state by the exercise uf the power of eminent domain. The act of 1887 was "mainly designed for the purposes of l'estricting the jl1risdiction of the circuit courts of the United States." Smith v. Lyon, 133 U. S. 315, 320. 10 Sup. Ct. 303; In re Pennsylvania Co., 137 U. S. 451, 454, 11 Sup. ct. 141; RailroadCo.v. Davidson, 157 U. 8. 201, 208,15 Sup. Ct. 563. In Patterson v. Boom Co., 3, Dill. 465, Fed. Cas. No. 10,829, Id., 98 U. 8" 405, where the cause was removed prior tothe act of 1887, the defendant landowner had appealed to the state court from au award of damages by comm.issioners for the taking of his land by the boom company.. Mr. Justice Field there said as follows:
"The position of tlle company on this' head of jurisdiction Is this: that the proceeding to take privatep,roperty for public use is au exercise by the state of Its sovereign right of eI1\lnent domain, and with its exercise the United States, a separlj-te sovereignty, has no right to Interfere by any of it.'l departments. This position is undoubtedly a sound one, so far as the act of appropriating the property is concerned. The right of eminent domain,-that is, the right to take private property for public uses,-appertains to every independent governmep,t. It requires no constitutional recognition; It is an attribute of sovereignty. The clause found in the constitutions of the several states providing for just compensation for property taken is a mere limitation upon the exercise of the right. When the use is pUblic, the necessity or expediency of appropriating any particular propertJ- is not a subject of judicial cognizance. The property may be appropriated by an act of the legislature, or the power of It may be delegated to private corporations, to be exercised by them in the execution of works in which the pUblic is interested. ... * · The proceeding In the present case before the commissioners appointed to appraise the land was in the nature of an inquest to ascertain Its value, and not a suit at law, in the ordinary sense of those terms. But when it was transferred to the district court by appeal from the award of the commissioners, it took, under the statute of the state, the form of a suit at law, and was thenceforth subject to its ordinary rules and incidents."

In Upshur Co, v. Rich, 135 U. S. 475, 10 Sup. Ct. 651, the court, referring to Boom Co. v. Patterson, supra, Pacific Railroad Removal Cases, 5 Sup. Ct. 1113, and Searl v. School Dist., supra, said as fo1-

HARTFORD &

c.

W. R. CO. V. MO;\lTAGCE.

229

"The general rule with regard to of this sort Is that the initial proceeding of appraisement by commissioners is an administrative proceeding, and not a suit; but that if an appeal is taken to a court, and a iitigation is there instituted between parties, then it becomes a suit, within the meaning of this act of congress. In Boom Co. v. Patterson, the company was authorized by the state laws of Minnesota to take land for the purpose of its business, and to have commissioners appointed to appraise Its value. If their award was not satisfactory, either to the company or to the owner of the land, an appeal lay to the district court, where it was to be entered by the clerk 'as a case upon the docket'; the landowner being designatl'd as 'plaintiff' and the company as 'defendant.' The court was then required to proceed to hear and determine the case in the same manner that other cases were heard and determined. Issues of fact were to be tried by a jury, unless a jury was waived. The value of the land being assessed by the jury or the court. as the case might be, the amount of the assessment was to be entered as a judg·· ment against the company, subject to review by the supreme court of thp state on writ of error. This mooe of procl'eding was followed. The boom eompany and the landowner both appealed from the award of the commissioners. 'When the case was brought before the district court, the owner, lwin;:: a citizen of another state, applied for and obtained its removal to the circuit court of the United States, where it was tried before a jury, and a judgment was rendered upon their award. 'We held that the appeal in that case was a suit, within the meaning of the act of congress authorizing the removal of causes to the federal courts."

In Searl v. School Dist., supra, especially relied on by counsel for defendant, the condemnation proceedings under the Colorado law were held to be adversary judicial proceedings, because the defendant therein was entitled to a jury to ascertain, determine, and apprai8 damages, presided over by a court whieh should pass upon the evidence offered according to the rules of law, and further to a motion for a new trial and an appeal to the supreme court, and a writ of error therefrom. And the court implies that, if there was nothing mOre than an appeal to the commissioners to ascertain compensation, the proceedings, even under the prior removal act, would not be a suit at law. It seems clear that the proceedings in these cases could not have been originally begun in the cireuit court of the United States. They were either originated by a board of eommissioners who should be freeholders, or were brought before a county eourt, which had the power to exercise various functions, but not those of a judicial nature, as in Upshur Co. v. Rieh, supl'a. Mr. Justice Bradley there said that the assessment made by such a court could not be called a suit, and could not thus be removed, and "the appeal from the assessment * * * was not a suit, within the meaning of the removal aet, though approaehing very near the line of demarkation." The statute of Connecticut under which these proeeedings were taken provides that the railroad company "may apply to any judge of the superior eoud for the appointment of appraisers to estimate all damages that Illay arise to any person from the taking and oecupation of such real estate for raih'oad purposes, and after reasonable notice * * * such judge shall appoint three appraisers who shall * * * view the premises and estimate 8ueh damages, and * * * return an appraisal of such damages in writing, under their hands, to the clerk of the superior eourt in the taunt,\' where the estate lies, who shall record it; and when so retul'lled and recorded, such ap-

230

94 FEDERAL,

praisal shalJ.pave the effect of a judgwent, and execution may issue at the end of, s:ixty days,''':, etc. This: is a proceeding for the taking of land and, appraisal of damages, without any provision for a trial by a jury or by a court, and not based, necessarily. upon the introduction of any evidence, except that the appraisers "shall vil(w the pr-emis:es," and without any provision for an appeal by the party aggrieved. If the application to the judge in the case at bar is analogous to those in the foregoing cat'!es, as is claimed by counsel for defendant, and if it might have been removable under the earlier removal act, it cannot be claimed that it is a suit which could have been originally brought in the circuit court. It is only the first step in a proceeding which has not ilssumed the shape of a pending suit, and in which there is to be U() trial of questions of fact or of law, and no jury and no appeal. The interpretation of this statute by the court of last resort of this state is of great importance in the determination of its character. In Railroad Co. v. Long, 69. Conn. 424, 37 Atl. 1070, Chief Justice .Andrews, delivering the opinion of the court, said in reference to the provisions of this statute:
"Unlike' the adjudication of the necessity and the extent of the taking, the whole process by which the compensation is ascertained is judicial. The legislature may determine what private property is needed for puNic Durposes (that Is a question of political and legislative character); but, when the taking has been ordered, then the question of compensation is judicial. The landowner Is not entitled, us a matter of right, to a jury trial, because the con8titution has not so required; but he is entitled to have an impartial tribunal, with the usual rights and privileges which attend judicial investigations. It is a suit at law. Searl v. School Dist., 124 U. S. 197, 8 Sup. Ct. 460. Under our practice, the aDplicatioIi to the judge to appoint the appraisers is the first - step in tbe judicial And, as we have indicated, it was necessary for the judge to pass upon the questions presented in the statute and alleged in the application, before he had jurisdiction to appoint the appraisers. The DOwer to appoint implies the power to pass upon and decide the jurisdictional facts."

See, also, Williams v.- RaUroad Co., 13 Conn. 110; Clark v. Saybrook, 21 Conn. 313. The theory and practice.of the Connecticut condemnation proceedings are therefore radically ,differ,ent from those already considered. Here the determination of the constitutional right of property of the party is the preliminary step in the proceeding) and, when the right of taking is once decided 1:>Y the judge, there is no appeal therefrom. The exercise of the sovereign power of eminent domain has been delegated by the legislature to the judge of one of its courts, and to no other tribunal, and his decision thereon is final In the caSes already considered, arising under the laws of other states, the preliminary step is the assessment of damages, and thereafter the power is delegated to the court to pass upon all the rights of the pm-ties involved. In Connecticut the only judicial question before the judge is whether the land shall be taken. The decision of this question, the court held in Boom Co., .v. Patterson, supra, was the exercise of the sovereign right of eminent domain, and was one with which the' federal court had no right to interfere. Inasmuch, therefore, as the state has reserved to the judges of its courts the final determination of the right of appropriation of pro-pert.}' as the initial step in the

DICKEY V. DICIU;Y.

231

proceedings, it seems clear that this case is not one of which this court would have had original eognizance. In the absence of clear and express language, it will not be presumed that the legislature of this state intended to delegate to any other tribunal the exercise of the sovereign right of eminent domain. 'fhese considerations seem to be decisive. But there is another forcible suggestion as to the intention of the legislature in the provision that the "clerk of the superior court in the county where the estate lies shall record the appraisal of damages." The laws regulating transfers of real estate in the state of Connecticut provide for a record of all transactions affecting the title thereto, either in the probate courts or in the office of the town clerk, or in the files of the state courts. The whole record system in the state of Connecticut upDu the constructive notice to parties of title or incumbrances in accordance with these provisions. It could not be presumed that the legislature of the state of Connecticut, in passing this law, proposed to confer upon a clerk of a court of the United States the sole power to record proceedings of this character in his office, wherever that office might be situated. These conclusions dispense with the necessity of considering the further claim that proceedings of this character are in the nature of a proceeding in rem (Stevens v. Battell, 49 Conn. 162), and are therefore within the reasoning in Be Cilley, 58 Fed. 982. The motion to remand is allowed.

DICKEY v. DICKEY. (Circuit Court of Appeals, No. 1,072. 1.
A:SD EItROR-REVIEW OF FnmTNGS OF FACT.

Circuit.

April 3, 1899.)

While the findings of fact made 11y the court are not as conclusive as the findings of a jury, they are presnmptively correct, and will not be disturbed by the appellate comt, unless they are against the weight of evidence.
LE6ACy-DEPEKDEKT ON VALUE OF ESTATE.

'Vhere the amount of a legacy is dependent upon the amount of decedent's estate, at a fair valuation, at the time of his death, the value of the estate will he computed by deducting his debts, for which his estate is liable, from the fair value of the assets. 8.
SAME-INTEREST.

A refusal to pay a legacy is not willful and without reasonable cause, legatee to interest, where he claimed a larger sum than so as to entitled to, and, on suit, was allowed only half of the alllount claimed.

4.

SA].IE.

,If bear interest within the provisions of Mills' Ann. St. § 2252, aliowing creditors interest for all moneys after they become due, on any bond, bill, or promissory note or other instrument in writing, they do so only after an order of the court has been made directing their payment. Sanborn, Circuit Judge, dissenting.

.lppeal from the Circuit Court of the United States for the District of Colorado.