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The board states in its return that duty was assessed on the sandalwood as "wood in the log, unmanufactured." The only witness in this court testified that the sample produced fairly represented the logs comprised in the importation in question. This sample is a log, and nothing has been done to it except to take off the bark and saw it into logs of a convenient length for importation. It is not of the character of woods provided for in paragraph 198, including "sawed boards," "veneers," and similar unmanufactured woods, but is merely a log, and, as such, is entitled to free entry under paragraph 699 of said act. The decision of the Board of General Appraisers is reversed.
UNITED STATES v. AMERICAN EXPRESS CO.
(Circuit Court, S. D. New York. May 26, 1904.)
1. CUSTOMS DUTIES-CLASSIFICATION-SOAP PENCILS-UNENUMERATED ARTICLES.
So-called soap pencils, composed of wood and soap, soap being the component material of chief value, are dutiable as unenumerated manufactured articles, under Tariff Act July 24, 1897, c. 11, § 6, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693].
On Application for Review of a Decision of the Board of United States General Appraisers.
The decision in question (G. A. 5,528, T. D. 24,881) reversed the assessment of duty by the collector of customs at the port of New York. Charles Duane Baker, Asst. U. S. Atty. Howard T. Walden, for the importer.
TOWNSEND, Circuit Judge. The merchandise in question consists of soap pencils, so called, on which duty was assessed at the rate of 35 per cent. ad valorem, under the provisions of paragraph 208 of the tariff act of July 24, 1897 (Act July 24, 1897, c. 11, § 1, Schedule D, 30 Stat. 168 [U. S. Comp. St. 1901, p. 1646]), as manufactures in chief value of wood. The importer claims that the articles are properly dutiable at the rate of 20 per cent. ad valorem, as a nonenumerated manufactured article, under the provisions of section 6 of said act (30 Stat. 205 [U. S. Comp. St. 1901, p. 1693]). The Board of General Appraisers sustained the claim of the importer.
It appears from the reports of the local appraiser and of the United States chemist that soap is the component material of chief value in these pencils. Inasmuch as there is no provision in the act of 1897 for manufactures of which soap is the component material of chief value, the articles are properly dutiable as nonenumerated manufactured articles, under section 6 of said act, and the decision of the Board of General Appraisers is therefore affirmed.
ATLANTA, K. & N. RY. CO. v. SOUTHERN RY. CO.
(Circuit Court of Appeals, Sixth Circuit. August 2, 1904.)
1. REMOVAL OF CAUSES-WAIVER OF RIGHT-FILING ANSWER AND MOTION TO DISSOLVE INJUNCTION.
The filing by a defendant in a state court of an answer and a motion, supported by affidavits, for the dissolution of a preliminary injunction or restraining order which had been granted ex parte, and the hearing of such motion on ex parte affidavits by the judge in chambers, where he had no power to determine any question on the merits, do not preclude the defendant from removing the cause where his petition therefor was presented before the time when, by the laws of the state or the rules of the court, he was required to plead.
2. EMINENT DOMAIN-CONDEMNATION PROCEEDINGS-EFFECT OF UNAUTHORIZED ENTRY.
Shannon's Code Tenn. §§ 1844-1867, providing for the condemnation of right of way by railroad companies, do not authorize an entry on the land without consent of the owner until his compensation has been ascertained and either paid or secured, unless, perhaps, for the purpose of making a survey; and a company can acquire no rights by going upon the land and commencing construction work without the owner's consent after it has filed a petition for condemnation.
3. SAME PRIORITY OF RIGHT-UNRECORDED CONVEYANCE.
A statutory proceeding for the condemnation of right of way for railroad purposes is but a substitute for its acquisition by contract, and the filing of a petition for condemnation by a railroad company gives it no right as against another company, which previously obtained a deed from the owner for the same purpose, although such deed was not recorded, and especially where, as by the Tennessee statute, it is expressly provided that such proceedings shall affect only the interests of the parties thereto and unborn remaindermen, and the grantee company is not a party.
4. SAME PRELIMINARY SURVEY.
There being no statute in Tennessee requiring a survey before the institution of proceedings to condemn right of way for railroad purposes, or authorizing the recording of surveys, such a survey gives no priority of right as against another company which subsequently acquires right of way over the land by conveyance from the owner.
EXECUTORY CONTRACT-STATUTE OF FRAUDS.
A contract for the sale or conveyance by a landowner of right of way to a railroad company, although in parol and executory, is good as against another company which subsequently institutes proceedings for condemnation of the same land, with notice that such an agreement had been made, such company not being an innocent purchaser protected by the statute of frauds.
Appeal from the Circuit Court of the United States for the Eastern District of Tennessee.
John B. Keeble (Chas. N. Burch, of counsel), for appellant.
R. H. Sansom, Leon Jourolmon, Henry Hudson (W. A. Henderson, Alex P. Humphrey, and Jourolmon, Welcker & Hudson, of counsel), for appellee.
Before LURTON and SEVERENS, Circuit Judges, and EVANS, District Judge.
1. See Removal of Causes, vol. 42, Cent. Dig. § 10.
LURTON, Circuit Judge. This is an appeal under the seventh section of the Court of Appeals Act March 3, 1891, c. 517, 26 Stat. 828 [U. S. Comp. St. 1901, p. 550], from an interlocutory decree granting an injunction pendente lite. The controversy is between two antagonistic railway companies over a right of way across the same property, desired by each for the purpose of constructing and operating a spur track to reach certain manufacturing industries upon the south bank of the Tennessee river, in the vicinity of Knoxville, Tenn. For some time before this litigation these industries had been endeavoring to secure such a spur track, and had been negotiating with both companies. to that end. The evidence tends to show that the only practicable approach for either company was over a narrow strip of land lying between the river and the base of a bluff, the property of one S. B. Luttrell. This narrow strip between the bluff and the river is insufficient for two independent railway approaches, even if it had been desirable and profitable for each company to own and operate a spur for its own
Negotiations were proceeding upon the basis that the right of way across Luttrell's land, as well as for other parts of the route, would be secured by the industries to be served and donated to the railway company with whom an agreement should be finally concluded. The evidence tends to show, however, that the appellant company was understood as also requiring that the expense of grading should be borne by these industries. Preliminary surveys were made by each company, but the Southern Railway Company first came to an agreement, and first made a location definite and final. This agreement seems to have been concluded, though possibly not fully executed until a day or two later, on June 29, 1903. By the terms of this agreement the industries agreed to procure the necessary rights of way and the railroad company to grade, construct, and operate the desired spur. Upon the next dayJune 30th several rights of way were secured, including the right of way over the Luttrell property, now in dispute. As early as this dateJune 30th-if not earlier, the appellant company heard disquieting reports that the Southern Railway Company had come to an agreement under which it was to construct the spur in question. Its own plans and purposes do not seem to have been definite prior to this, for only on this day did the company's engineer file in the office of Mr. Ellis, the company's general manager, the plans and estimates upon which a final conclusion could be reached and a proposal made to or accepted from the manufacturing companies to be accommodated. On the next day -July 1st-Mr. Ellis began inquiries with a view of ascertaining the truth of the reported agreement with the Southern Railway. As this matter of notice to the appellant of the steps taken by the Southern Railway to acquire a right of way from Luttrell may be of importance, we quote from the ex parte affidavit of Mr. Ellis, who, after stating that on June 30th, and while absent from the city of Knoxville, the company's engineer had filed in his office the completed survey and estimates for a spur track, says:
"On the following day (July 1st) I began the preparation of a report and letter to President Smith, but, having various outside intimations that there might be some truth in the reported negotiations with the Southern Railway Company, on the first day of July I called upon Mr. Gaut, and asked if he ow
what the facts were, and inquiry by him developed the fact that an agreement had been reached, although perhaps not executed, by the parties with the Southern Railway Company. I then addressed a letter to President Smith, setting out the facts, and received telegraphic authority to proceed.
The Mr. Gaut referred to above had, on some former occasions, endeavored to bring about an agreement between the appellant railroad and these industries. In a brief affidavit Mr. Gaut says that on July 1, 1903, Mr. Ellis called on him "to ascertain whether the newspaper reports that a contract had been signed between these companies and the Southern Railway Company were correct or not. I made inquiries concerning the matter at once, and learned that, while the conveyances for right of way had not been executed, the agreements had been reached whereby they were to be executed." After receiving authority to construct a spur according to this survey, and without further effort to come to any agreement with the enterprises to be served, and wholly independent of any assistance from or agreement with the parties desiring the spur, the appellant company, on the night of July 2, 1903, began operations to secure priority of right over the Luttrell property, knowing at the time that at least a parol agreement had been already concluded by the defendant company for the rights of way essential to the construction of a spur over the same route. The supposition that possibly the right of way over Luttrell's land had not been conveyed by an instrument in writing proved to be erroneous, for the evidence tends to show quite satisfactorily that on June 30th Mr. Luttrell executed and delivered his deed, though it was not placed on record until July 3d. To secure priority of right over the Luttrell land, notwithstanding the situation as confessedly known, and to obtain what advantage there might be, in view of the possibility that deeds for the right of way had not been executed, the complainant company, on the night of July 2d, filed a petition in the state circuit court for Knox county, Tenn., against S. B. Luttrell, seeking to condemn the right of way now involved, and being the same previously conveyed by the unrecorded deed of the owner. On the same night, and before service of process or notice or knowledge of either Luttrell or the Southern Railway Company, a civil engineer in appellant's service, with a small force, went upon the proposed right of way for the alleged purpose of taking possession and beginning the construction of the proposed track. Knowledge of this latter step was obtained by the Southern Railway Company, and very early in the morning of the 3d of July it also sent a force of men upon the Luttrell property, and began at once the construction of a track, claiming a right to do so under Luttrell's grant and conveyance. On the same morning, and after this movement in the interest of the Southern Railway Company, the appellant company filed the present bill in the Chancery Court of the state, and obtained an ex parte injunction restraining the defendant company from interfering with its alleged prior right and prior possession. Upon the same day, but at a later hour, the defendant filed a similar bill in the same court, and was also granted an ex parte injunction. Thus both companies were forbidden to proceed with the construction of the said spur across the land of said Luttrell until the court should determine which had the better right. Answers were at once filed to each bill, and ex parte affidavits taken
and filed, under consent and agreement, to be used upon motions to dissolve the injunctions granted. The two cases, on July 11, 1903, were heard at the same time, upon motions to dissolve. The chancellor denied the motion to dissolve the injunction granted under the bill of appellant, and sustained the motion to dissolve the injunction granted under the bill filed by the appellee company. On August 1st the Southern Railway Company dismissed its said bill without prejudice, and removed the case of the appellant company into the court below. A motion to remand to the state court was seasonably made by the appellant company, and denied. The defendant, under leave, filed a cross-bill, seeking affirmative relief against the occupation of the right of way in question by the Atlanta, Knoxville & Northern Railway Company, and asserted its own exclusive rights under the deed of Luttrell. Subsequently the cause was heard upon a motion to dissolve the preliminary injunction granted by the state chancellor, and to allow a pendente litem injunction under the cross-bill. Both these motions were granted, and from the order allowing an injunction upon the said cross-bill this appeal has been taken.
1. It is first insisted that, although this suit was one which might have been removed by the Southern Railway Company into the circuit court, the right to remove was waived by the proceedings which occurred in the state court before the petition to remove was filed. The question is one which goes, in a sense, to the jurisdiction of the court below, and, although this is only an appeal from an interlocutory injunction, should be decided before considering the merits. Bissell Co. v. Goshen Co., 19 C. C. A. 25, 72 Fed. 545; Smith v. Vulcan Iron Works, 165 U. S. 518, 17 Sup. Ct. 407, 41 L. Ed. 810; In re Tampa R. Co., 168 U. S. 583, 18 Sup. Ct. 177, 42 L. Ed. 589. The provision of Act March 3, 1887, c. 373, § 1, 24 Stat. 552 [U. S. Comp. St. 1901, p. 510], as amended by Act Aug. 13, 1888, c. 866, § 3, 25 Stat. 433 [U. S. Comp. St. 1901, p. 510], in respect to the time for the removal of a cause, is that the party entitled to remove shall file his petition in such suit in the state court "at the time, or any time before, the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff." This means that a petition for removal must be filed as soon as the defendant is called upon by the local law to make any defense, either to the jurisdiction or merits. Martin v. B. & O. R. Co., 151 U. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 311. But under the state law the earliest day at which the Southern Railway Company was obliged to make any defense whatever to the bill of the Atlanta, Knoxville & Northern Railroad Company was upon the first rule day in August, which was Monday, August 3d. The petition to remove was filed August 1st. It therefore follows that the petition for removal was filed within the time required by law. But it is said that, although the petition was filed. before any defense was due, and therefore within time, the right to remove had been waived by the filing of an answer and by the hearing had in the state court upon the question of the dissolution of the ex parte preliminary injunction granted upon the filing of the bill. The citizenship of the parties was such as to bring the case within the constitutional jurisdiction of a United States court. The time of removal