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as may be;" or at least out far enough to give sufficient time and space for No. 2 to observe and maneuver. Had No. 8 been at that distance out, the ordinary rule of the starboard hand would have controlled the case. But here the situation, as above stated, was critical from the moment the two vessels were discovered to each other, and critical by the fault of No. 8 in going so near shore. Seen around the bend, No. 8 would naturally appear to No. 2 to be nearer the shore than she really was. Having no proper time and opportunity for observation, No. 2 could only act on what was seen at the moment and according to what seemed to be best. She was only bound to do the best she could, (The Rose Culkin, 52 Fed. Rep. 328, 330;) and having been put in a critical situation through the fault of No. 8, even if No. 2's pilot made any error of judgment as to what was best, such an error of judgment would not be a legal fault. The Blue Jacket, 144 U. S. 371, 392, 12 Sup. Ct. Rep. 711; The Elizabeth Jones, 112 U. S. 514, 526, 5 Sup. Ct. Rep. 468. No. 2 could not reverse, because in the ebb tide, if she had backed, she would have drifted down upon the vessels lying at the end of pier 4; and it would have been extremely rash, in my judgment, for her to attempt to turn nearly half a circle under a signal of one whistle, so as to go between the shore and No. 8, when No. 8 appeared already to be so near the docks.
No. 8 in going so near the shore took all the risk of being able to stop before running into any other boat around the bend that was navigated without fault, and with reasonable skill in the endeavor to keep out of the way as soon as the danger was discoverable. The Amos C. Barstow, supra; The Columbia, 8 Fed. Rep. 716, 718.
The present case differs from all those cited in behalf of No. 8 in the fact that the two boats when first visible were not a sufficient distance from each other to give No. 2 the necessary time and space to make proper observations and keep out of the way. No. 2 was heavily incumbered. She could move but slowly and maneuver with difficulty. The Garfield in the case of The Amos C. Barstow, supra, and the Devoe in the case of The Senff, 53 Fed. Rep. 669, which in other respects presented somewhat analogous facts, were quite the opposite, in the circumstances above named, being both unincumbered, easily and quickly handled, and, therefore, found to have been able to keep out of the way, notwithstanding the fault of the Barstow and the Senff. Had No. 2, in the present case, been a light tug unincumbered, I should have held No. 2 in fault, upon a collision like this, because she would have been able by ordinary skill to have avoided collision, notwithstanding the fault of No. 8. The situation of No. 2 with her heavy tow was wholly different. I am satisfied that she was managed with as much good judgment and skill as there was time to command, and that she is, therefore, without fault.
Decree for the libelant against No. 8, and exempting No. 2.
CITY OF WASHINGTON V. COLUMBUS & C. M. R. CO.
(Circuit Court, S. D. Ohio, E. D. January 25, 1893.) REMOVAL OF CAUSES--SEPARABLE CONTROVERSY.
In a suit by a city to condemn land occupied by a railroad corporation of another state as lessee of a railroad corporation of the same state, when the main issue is as to the right to condemn, the controversy as to the foreign corporation is not separate, so as to give it a right to remove the cause to a federal court, although the home corporation files a disclaimer alleging that the lease is for 99 years, renewable forever, and that the foreign corporation is practically the owner of the property, and will suffer all the damage that may be inflicted; for the home corporation, as reversioner, still has an interest in the property City of Bellaire v. Baltimore & O. R. Co., 13 Sup. Ct. Rep. 16, followed. Proceeding in the probate court of Fayette county, Ohio, by the city of Washington against the Columbus & Cincinnati Midland Railroad Company for the appropriation of a right of way for a street. From the verdict assessing the damages, defendant appealed to the court of common pleas of Fayette county. Subsequently the Baltimore & Ohio Railroad Company and the Central Ohio Railroad Com. pany were made parties defendant, and the former petitioned for a removal to this court, which was granted. Heard on motion to remand. Granted.
Joseph Hidy and Willis & Pine, for plaintiff.
SAGE, District Judge. The proceeding in this case in the probate court of Fayette county, Ohio, of which the plaintiff is the county seat, was for the appropriation of a right of way for a street within the incorporated limits of the plaintiff, and across the premises and tracks of the defendant. The defendant having demurred to the application, and, after the overruling of its demurrer, filed its answer, making sundry defenses to the application, and also setting up that the land sought to be taken was reasonably worth $100 per front foot, and that the residue of defendant's lands would be made less valuable, by reason of the appropriation, in the sum of $10,000, the application was heard before the probate court and a jury, which assessed the compensation for the lands taken at $264.79, and the damages to the residue of the defendant's lands at $125. The court having confirmed the verdict of the jury, and its assessment, the defendant filed written notice of an appeal to the court of common pleas of Fayette county, and on the 1st of February, 1892, filed the appeal bond, in due form, and the same was approved by the probate court, and a transcript of the proceedings in the cause sent to the court of common pleas. On the 30th of April, 1892, the defendant filed in the court of common pleas an additional answer, setting up that it had not then, nor had it had since the commencement of the proceedings, any interest whatever in the lands sought to be appropriated; that previous to the commencement of the proceedings it had leased its entire railway track, yards, and all other property of every description, to the Central Ohio Railroad Company, as reorganized, and that
that company thereupon assigned and transferred said lease to the Baltimore & Ohio Railroad Company; that said lease, by its terms, tool effect on the 1st day of January, A. D. 1890, and was for the term of 99 years, renewable forever, “so that," the answer proceeds to set forth, “whatever damage is done to the track by reason of these condemnation proceedings will be done to the property of the Baltimore & Ohio Railroad Company, and not to this defendant herein, and that by virtue of said lease the said Baltimore & Ohio Railroad Company became practically the owner of the property sought to be taken, and whatever compensation is awarded therefor should be awarded to that company, and not to this defendant; this defendant hereby and herein disclaiming all interest in said property, in any form or manner, at the time of the commencement of this suit, nor since, and, having answered, asks to be discharged.” On the 23d of April, 1892, upon a showing that the Baltimore & Ohio Railroad Company and the Central Ohio Railroad Company claimed some interest in the real estate sought to be appropriated, the court of common pleas made both those companies parties defendant, and ordered process issued against them. On the 30th of April, 1892, the Baltimore & Ohio Railroad Company (having been duly served with process on the 23d day of April, 1892, notifying it that the cause on appeal would be for hearing before said court of common pleas on the 21st of May, 1892, and requiring it to appear at that time, and set up any claim which it might have to said premises, or to compensation and damages which might be awarded) filed its petition for the removal of the cause to this court, setting forth that it was a citizen of the state of Maryland, and had a separable controversy with the plaintiff. The Central Ohio Railroad Company was also served with summons on the day of April, and thereby required to appear at the same time as the Baltimore & Ohio Railroad Company. On the 7th day of May, 1892, the court of common pleas made an entry granting the petition for removal.
The motion to remand must be granted, upon the authority of City of Bellaire v. Baltimore & 0. R. Co., decided by the supreme court of the United States, November 14, 1892, (see 13 Sup. Ct. Rep. 16,) and holding that in a suit by a city to condemn land occupied by a railroad corporation of another state as lessee of a railroad corporation of the same state, when the main issue is as to the right to condemn, the controversy as to the foreign corporation is not separate, so as to give it a right to remove the cause to a federal court, although the interests of the two defendants, and their separate awards of damages, must be determined as incidents to the principal controversy; unless the filing of a disclaimer of all interest by the Cincinnati Midland Company, which is an Ohio corporation, is a circumstance sufficient to distinguish this case from that. I do not think it is. The disclaimer is expressly, by the amended answer of the Midland Company, based upon the fact that it had made a lease of the property sought to be appropriated to the Baltimore & Ohio Railroad Company, for 99 years, renewable forever. But the assignment of that lease did not transfer to the Baltimore & Ohio Railroad Company all the interest of the Midland Company in the premises. It still holds the reversion, and upon a surrender or forfeiture of the lease would be reinstated in full ownership. The plaintiff, therefore, was not bound to accept the disclaimer, or, if it did, was entitled to a judgment respecting the costs, and passing upon the effect of the disclaimer. Moreover, in the same entry by which the Baltimore & Ohio Railroad Company was made a party defendant, the Central Ohio Railroad Company, another Ohio corporation, was also made a party defendant, as claiming to have some interest in the property sought to be appropriated. Although it is set up in the amended answer of the Midland Company that the Central Ohio Company was the lessee in the lease granted by the Midland Company, and the assignor to the Baltimore & Ohio Company, that amendment cannot be taken as establishing the fact, nor as authorizing the court to decide that the Ohio Central Company has no interest in the property. The decision in City of Bellaire v. Baltimore & 0. R. Co., above cited, would apply and make an order remanding the case necessary, even if the disclaimer of the Midland Company, if it were the only other party defendant, would sustain the removal by the Baltimore & Ohio Railroad Company to this court. The motion to remand will be granted, with all costs attending the removal, and in this court, to be taxed against the Baltimore & Ohio Railroad Company.
EGAN V. CHICAGO, M. & ST. P. RY. CO.
(Circuit Court, N. D. Iowa, E. D. January 21, 1893.)
1. REMOVAL OF CAUSES-TIME OF REMOVAL-Filing PLEADINGS IN-STATE COURT.
It is not necessary, in order to the removal of a cause, that any pleading on behalf of defendant should first be filed in the state court; and decisions by a state court that such filing is necessary are not binding upon
the federal courts. 2. SAME-SUFFICIENCY OF PETITION.
In an action in a state court, plaintiff claimed damages in the sum of $27,000 for a death by wrongful act. Defendant, being a citizen of another state, filed in the state court a petition for the removal of the cause to a federal court, averring that the "matter and amount in dispute" exceeded $2,000. The state court accepted this petition and the bond tiled therewith, and the transcript was filed in the federal court. Held, on a motion to remand, that it sufficiently appeared that a “controversy” existed between the parties, although the petition did not directly allege the same. At Law. Action brought by Julia Egan, administratrix of the estate of John J. Egan, in an Iowa state court, against the Chicago, Milwaukee & St. Paul Railway Company, to recover damages for the alleged wrongful death of the said John J. Egan. The cause was removed by the defendant to the United States circuit court, and is now heard on a motion to remand. Denied.
Hubert O'Donnell and Henderson, Hurd, Daniels & Kiesel, for the motion,
W. J. Knight, opposed.
SHIRAS, District Judge. This action was brought originally in the district court of Dubuque county, Iowa, from which it was removed to this court upon the application of the defendant company The plaintiff is, and was when the suit was brought, a citizen of Iowa, and the railway company was and is a corporation created under the laws of the state of Wisconsin. The action is to recover damages in the sum of $27,000, alleged to have been caused to the estate of John J. Egan, the plaintiff's decedent, in that it is alleged that he was killed while in the employ of the company, and that his death was caused by negligence on part of the company. The state court granted the prayer of the petition for removal, which was filed in that court in due season, and the transcript was thereupon filed in this court.
In support of the motion to remand, now made on behalf of the plaintiff, two grounds are relied on; the first being that when the order of removal was made, and the transcript was filed in this court, no pleading had been filed in the state court on behalf of the de fendant, and therefore it did not appear that there was a controversy between the parties justifying a removal. It has been the settled rule in this .circuit for years, that the filing of a demurrer or answer to the petition of the plaintiff is not a prerequisite to the removal of a case which otherwise comes within the provisions of the removal acts. The supreme court of Iowa has in several cases held that the right of removal cannot be exercised until a pleading making an issue has been duly filed; but, as the question is one arising upon the proper construction of the statutes of the United States, these decisions are not binding upon this court, as would be the case if the question was one arising under the statutes of Iowa, in which event we would cheerfully follow the ruling of the state court. The statute of the United States requires the petition for removal on the ground of diverse citizenship to be filed before or at the time the defendant is required to plead in the state court. To avoid, as far as possible, the evils of the delay necessarily attendant on the change of forum, it has been the policy of the federal courts to require, as far as possible, prompt action on part of those who seek to remove a case from the state to the United States. It has been uniformly ruled that if the time for filing an answer, by consent of the parties, or by order of the court, has been extended beyond the time when the pleading would be due under the statute of the state or by the general rules of the court, such extension of time for pleading will not avail to extend the time for applying for a removal; and it has been likewise held that a party cannot be permitted to experiment in the state court touching the merits of his case, and then, if the results are not to his liking, remove the case into the federal court. Under the removal section of the act of 1888, a defendant may apply for a removal before the time for pleading in the state court has arrived. If it had been the intent of congress, in passing the act, not to permit a removal to be taken until after the issue had been joined in the state court, it would have been very easy to make such intent plain upon the face of the statute; but, instead of so declaring, the act grants the