and claims to recover both the title and possession from his trustee, he should not pay the value of the improvements which that trustee has placed upon it. It is further to be observed that the option is given to complainant to take these improvements with the land, or to reject the improvements, and take the land without them; in which latter case he is merely required to give the owners of the improvements access to the land, for the purpose of removing them. If he desires the improvements, he can keep them, by paying for them. Hiles paid for the land when he got the title; and we see nothing unjust or inequitable in his receiving compensation for improvements made in good faith upon the land which he is now willing to convey to the company, if the company chooses to take them at their appraised value.

Retention of

property fraudulently

acquired.

We are urged to consider that if this decree is affirmed, dismissing the bill of the railroad company, the defendants will be left in the possession of property fraudulently acquired, of considerable value, for which they gave no consideration. The answer to this is that such question cannot be raised by the plaintiff in this case, because, having no right to take the property, it is not injured by a decree of the court which fails to grant such right. The other questions must be between the defendants in this case and those from whom they took deeds of conveyance, or such other parties, public or private, as may show that they have an interest in the controversy. The decree of the circuit court is affirmed.

Mr. Chief Justice FULLER did not hear this case, and took no part in its decision.

NORTHERN PACIFIC R. Co.

ย.

AUSTIN.

(135 U. S. 315.)

Removal of Cause-Amendment of Complaint at Trial-Jurisdictional Amount.-Where a complaint asks judgment for damages in a sum less than $500, and is, after the evidence has been introduced at the trial, amended by leave of the court so as to claim judgment for a sum exceeding $500, thereby bringing the claim within the amount necessary to sebe reversed on writ of error from the United States supreme court on the cure a removal to the federal courts, a judgment for the plaintiff will not ground that the defendant was thereby deprived of his right of removing the cause to the federal courts, when it appears that he only excepted to the action of the court in permitting the amendment, and did not make any application for the removal of the cause.

ERROR to the Supreme Court of the State of Minnesota. Austin brought his action in the district court of Otter Tail county, Minn., to recover damages for the burning of certain growing trees on his land by fire set by an engine of the Northern Pacific Railroad Company, his complaint alleging the trees to have been of the value of $475, and that he was damaged in that sum, and demanding judgment for that amount, with costs and disbursements. The defendant put in a general denial. The cause coming on for trial, the record states that "after the jury had been duly impaneled and sworn, and before the commencement of the trial, the plaintiff asked to amend his complaint by increasing the ad damnum clause therein from the sum of $475, the amouut originally stated and claimed in said complaint, to the sum of $1,000. To this amendment the defendant objected, upon the ground that to allow the same would be an abuse of discretion, and prevented defendant from securing the removal of said action from the above named court to the circuit court of the United States, where it would be entitled to have the same tried had such amendment been moved for at the proper time, and granted. The court took under consideration the matter of allowing such amendment." The trial was then proceeded with, and the evidence tended to show that the damages sustained were much greater than $500. Upon the conclusion of the plaintiff's case, he renewed his motion "to amend his complaint to make the same conform to the testimony. Whereupon the amendment was granted by the court allowing the plaintiff to claim damages in the sum of one thousand dollars, and to which amendment the defendant duly accepted. Plaintiff also renewed his motion to amend the ad damnum clause of the complaint. The motion was granted; defendant excepting." The jury found a verdict for the plaintiff, and assessed his damages at $750, and judgment was rendered accordingly. The defendant appealed to the supreme court of Minnessota, by which the judgment was affirmed, and thereupon a writ of error was sued out from this

*

*

court.

*

James McNaught, W. P. Clough, A. H. Garland and H. J. May, for plaintiff in error.

M. D. Grover, for defendant in error.

FULLER, C. J.-The contention of plaintiff in error seems to be that the right to remove the suit into the circuit court of the United States for the district of Minnesota, under the act of March 3, 1875, was specially set up or claimed by it; that the decision was against the right so set up or claimed; and that, therefore, this court has jurisdiction. But the difficulty with that view

Contention of plaintiff in

error.

is that when the amendment was permitted to be made, after the evidence had satisfied the trial court that its allowance was proper, the defendant filed no petition and made no application to remove the cause. It is true that, when the plaintiff first applied to amend, the defendant objected, upon the ground that it would be an abuse of discretion, because the defendant would be obliged to submit to a trial when the amount actually involved would have entitled it to a removal, if that fact had appeared when the suit was commenced, or if the amendment had been made at an earlier stage of the case. This was by way of argument, and upon the theory that the plaintiff had purposely laid his damages in the first instance at a sum which did not permit a removal, and then sought to increase the ad damnum after the trial commenced, and when it was assumed to be too late to remove.

Opinion of

Minnesota

Supreme

Court.

The supreme court of Minnesota, in passing upon the action of the district court, (Austin v. Northern Pac. F. F. & B. H. R. Co., 34 Minn. 273), held that, “in respect to the propriety of allowing amendments, the court can make no distinction between cases exclusively triable in the state court, and those claimed to be removable to the United States courts. If the case is one in which an amendment might properly be made in the former class of cases, then it may be made in the latter, because the action of the court is authorized by law, and, while a case remains in the state court and under its jurisdiction, no party can legally complain of proceedings which are in conformity with the laws of the state. There being no complaint that the case was not in itself a proper one for the exercise of the discretion of the court in the allowance of the amendment, under the practice in this state, we think the objection was properly overruled. * * * But there is nothing upon the record in this case to show the plaintiff's course was a device to prevent a removal. According to the practice as understood and actually prevailing in the United States courts of this circuit when this action was tried, the defendant would not have been entitled to a removal if the complaint had been amended before the case came to trial. Myers. Union Pac. R. Co. 16 Fed. Rep. 292. But the supreme court of the United States subsequently held, by a divided court, that corporations like the defendant, created and organized under the laws of the United States, were entitled to remove suits against them to the United States courts. Pacific Railroad Removal Cases, 115 U. S. 1, 20 Am. & Eng. R. Cas 324. Under the circumstances, therefore, we are not warranted in concluding that the allowance of the amendment was an abuse of discretion. If the facts were such

as to warrant the inference that the plaintiff purposely brought the action for a smaller amount in order to prevent a removal, and afterwards secured the amendment, a different question would be presented.

Denial of right to re

move cause.

Nothing is better settled than that, to enable us to take jurisdiction on the ground of the denial by a state court of a right claimed under a statute of the United States, the record must show that the right was specially set up or claimed at the proper time and in the proper way, and that the decision was against the right so set up or claimed. Spies v. Illinois, 123 U. S. 131; Chappell v. Bradshaw, 128 U. S. 132. As the defendant did not apply for the removal of the cause, the right now claimed under the statute was not denied by the district court, nor by the supreme court in affirming the judgment. If the application had been made, the question would then have arisen whether it came too late, under the circumstances. The defendant was not entitled to remove the suit as originally brought "before or at the term at which such cause could be first tried, and before the trial thereof." But the objection to removal, depending upon the absence of the jurisdictional amount, was obviated by the amendment. As the time within which a removal must be applied for is not jurisdictional, but modal and formal, (Ayers . Watson, 113 Ü. S. 594, 598), it may, though obligatory to a certain extent, be waived; and as, where a removal is effected, the party who obtains it is estopped upon the question of the time, so, if the conduct of the plaintiff in a given case were merely a device to prevent a removal, it might be that the objection as to the time could not be raised by him. If, on the other hand, the motives of the plaintiff could not be inquired into, or, if admitted, would not affect the result, as in most cases of remittitur, (Thompson 2. Butler, 95 U. S. 694; Pacific Postal Tel. Cable Co. v. O'Connor, 128 U. S. 394), the defendant would simply suffer for want of comprehensiveness in the statute. The amendment here was held to have been properly allowed, and we have no power or disposition to interfere with the action of the court in regard to it. The only importance it has is in its bearing upon the charge of bad faith in respect to the right of removal, and that question cannot properly arise in the absence of an application to remove. The writ of error must be dismissed; and it is so ordered.

46

KOONTZ

V.

OREGON RAILWAY & NAVIGATION CO.

(Oregon Supreme Court, March 4, 1890.)

Fires-Pleading-Identification of Engine.-Where the language is that 'an engine" of the defendant company, at the time and place specified, etc., by reason of negligence, caused the destruction of the plaintiff's property, held, the allegation does not identify the particular engine which caused the mischief.

Same-Sufficiency of Complaint. It is the duty of the plaintiff, in an action of this character, to state as definitely as possible what train caused the injury, so that the company may be able to identify the engine, and investigate what its condition was, and the conduct of its agents and servants at that time.

Same-Escape of Fire-Presumption of Negligence. The escape of fire from a passing engine whereby property is destroyed, raises a presumption of negligence in the construction and management of such engine, and casts on the defendant the burden to rebut such presumption.

Same-Rebuttal of Presumption-Proof of Negligence. When the presumption raised is rebutted by proof of proper construction of the engine, and the use of proper appliances and careful management, the plaintiff cannot maintain the action without making proof of other negligence. Same-Evidence-Emission of Sparks by Engines at Other Times.-In such an action, where the objection was that the evidence of the emission of sparks by plaintiff's engine, prior and subsequent to the burning in question, was improperly admitted, held, not error; that such evidence

was admissible.

Same-Evidence as to Other Fires.-In consequence of the difficulty in identifying a passing engine, so as to make direct proof of negligence, and for the reason that the business of running railroads supposes a unity of management and a similarity in construction of the engines, the admission of evidence, as to other and distinct fires from the one alleged, is per

mitted.

APPEAL from Circuit Court, Umatilla County.

Rufus Mallory, for appellant.

Tustin & Crews and Bailey & Ballery, for respondent.

LORD, J.-This is an action to recover damages for the destruction of the plaintiff's mill by fire emitted from a locomotive operated by the agents of the defendant. It is enough that after issue was joined, and a trial had, the verdict and judgment were for the plaintiff. The appeal presents several assignments of error, but we shall only notice those which were chiefly relied upon at the argument to work a

to say

reversal.

It is insisted that the plaintiff, by the form of his pleading,