#### TOWN OF WAYNESVILLE v. FRANK SMATHERS.

(Filed 25 June, 1927.)

Removal of Causes — Federal Courts — Municipal Corporations — Cities and Towns — Condemnation of Lands — Actions at Law — Court’s Jurisdiction.

Proceedings by the commissioners of an incorporated town to take the property of a nonresident respondent for a public use are administrative and not judicial until the amount of compensation has been awarded, and the cause regularly transferred to the trial docket upon the respondent’s *132exception to tixe amount of damages so assessed, and upon a proper petition and bond of tbe respondent for the removal of the cause to the Federal Court for the appropriate district, filed in apt time before the clerk, without any act amounting to a waiver of his right, showing his nonresidence, the diversity of citizenship and his claim that the amount of his damages comes within the jurisdictional amount required by the Federal Removal Statute, the cause is accordingly properly removed.

Appeal by plaintiff from order of *Harding, J.,*at September Term, 1926, of Haywood, allowing defendant’s motion for removal of this proceeding from said court to tbe District Court of tbe United States for tbe Western District of North Carolina.

Affirmed.

Tbis is a proceeding for tbe condemnation of land owned by defendant, and situate witbin tbe corporate limits of tbe town of Waynesville, Haywood County, North Carolina, for street improvements. Tbe jury appointed by tbe board of aldermen of said town, in accordance with provisions of its charter, to assess damages to be paid by plaintiff to defendant, resulting from tbe taking of bis land, filed its report with said board on 2 September, 1926. In said report, defendant’s damages were assessed at $500. In apt time defendant excepted to said report, on tbe ground that bis damages should have been assessed at not less than $5,900. He appealed to tbe Superior Court of Haywood County, as authorized by statute. Tbe next term of said court at which tbe appeal could be beard began on 20 September, 1926.

In response to defendant’s notice of appeal, a transcript of tbe record in tbe proceedings was docketed in tbe office of tbe clerk of tbe Superior Court of said county on 11 September, 1926. On 14 September, 1926, defendant filed bis petition before tbe clerk of said court for tbe removal of tbe proceeding to tbe District Court of tbe United States for tbe Western District of North Carolina. In said petition be alleges that be is a nonresident of tbe State of North Carolina, and that tbe amount involved in tbe suit, exclusive of interest and costs, exceeds tbe sum of $3,000. Tbe bond required by statute accompanied tbe petition. Tbe clerk of tbe Superior Court beard defendant’s motion, in accordance with bis petition and allowed same.

Upon plaintiff’s appeal from tbe order of tbe clerk, tbe judge presiding at tbe September Term, 1926, affirmed tbe order of tbe clerk and directed that the cause be removed in accordance with tbe prayer of tbe petition. From tbe order of tbe judge plaintiff appealed to tbe Supreme Court.

*Morgan & Ward for plaintiff.*

*Alley <& Alley for defendant.*

*133ConNoe, J.

Prior to tbe docketing of tbis proceeding in tbe Superior Court of Haywood County, upon defendant’s appeal from tbe report of tbe jury, assessing tbe amount wbicb defendant was entitled to receive as compensation for bis land, and as damages for tbe taking of tbe same by plaintiff, for street improvements, under tbe right of eminent domain, conferred upon plaintiff by statute, it was an administrative, and not a judicial proceeding. Upon sucb docketing, it became a judicial proceeding, or “suit of a civil nature” witbin tbe meaning of U. S. Comp. Stat., sec. 1010, Jud. Code, sec. 28, as amended. It involves a controversy between a citizen of tbe State of North Carolina, in wbicb tbe suit was brought, and a citizen of another State; tbe amount involved exceeds tbe sum or value of $3,000, exclusive of interest and costs. It was, therefore, removable from tbe Superior Court of Haywood County to tbe District Court of tbe United States for tbe Western District of North Carolina, provided tbe petition and bond were filed in apt time as required by act of Congress. It is so held in *Comrs. of Road Imp. Dist. No. 2 v. St. Louis S. W. R. Co.,*257 U. S., 547, 66 L. Ed., 364.

*Chief Justice Taft,*in bis opinion in that case, after reviewing tbe provisions of tbe statute, under wbicb tbe proceeding was begun, says: “Tbis review shows that tbe proceedings for tbe making of tbis road improvement are, in tbe main, legislative and administrative. There is, however, one step in them that fulfils tbe definition of a judicial inquiry if made by a court. That is tbe determination of tbe issue between tbe road district, on tbe Qne part, and tbe landowners on tbe other, as to tbe respective benefits wbicb tbe improvement confers on their lands, and tbe damages they each suffer from rights of way taken and other injury.”

“A judicial proceeding to take land by eminent domain, and ascertain compensation therefor, is.a suit at common law witbin tbe meaning of tbe Federal Judiciary Act; and when tbe requisite diversity of citizenship exists, sucb suit may be brought in or transferred to tbe Federal District Court of tbe district in wbicb tbe land lies. Such diversity of citizenship arises when a private or municipal corporation seeks to condemn land witbin tbe State of its origin, when sucb land belongs to a citizen of another State; and whether condemnation be effected by judicial proceedings or other statutory processes, tbe Federal Court must necessarily follow tbe procedure prescribed by tbe State statutes.” 10 R. C. L., 207, see. 177, and cases cited.

Immediately upon tbe docketing of tbis proceeding in tbe Superior Court of Haywood County, at wbicb time tbe proceeding first became a “suit of a civil nature,” removable from tbe State to tbe Federal Court, defendant filed his petition and bond, as required by act of Congress. *134No answer or other pleading was required of him by statute or rule of court to raise tbe issue to be tried at tbe next term of tbe court. He had not waived bis right to a removal by filing exceptions to tbe report of tbe jury appointed by tbe board of aldermen to assess bis damages; tbe filing of these exceptions was required by tbe statute in order to have tbe proceedings transferred to tbe Superior Court. Tbe petition for removal, filed before tbe convening of tbe court at which tbe issue between plaintiff and defendant stood for trial, was filed in apt time. He bad not theretofore subjected himself or bis cause to tbe jurisdiction of tbe State court by filing an answer or other pleading. In *Comrs. of Road Imp. Dist. No. 2 v. St. Louis S. W. R. Co., supra,,*it is held that where tbe petition for removal was filed before tbe day set for tbe bearing and determination of tbe issue, tbe requisites of the removal statute were fulfilled.

Tbe order of removal in tbe instant ease, upon tbe authority of *Comrs. of Road Imp. Dist. No. 2*v. *St. Louis S. W. R. Co., supra,*is

Affirmed.