The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-07-03
JUDGE PURNELL
DENIES MOTION
Won't Remand Peabody.
to State Courts.
LOCAL PREJUDICE SET UP
The Southern Railway, the Judge Claims, i
The Only Party Now Directly
Interested in The
Case.
LOCAL PREJUDICE SET UP


Judge Thomas R. Purnel yesterday
handed down his opinion denying the mo-
tion to remand to the State courts the
famous Peabody street right -of-way suit in
Durham.
The moGion was made by the Sea
board Air Line Railway and was argued
Judge r. w. Winston and Messrs. Man
ning and Foushee. for the motion, and
Mr.. r. H. Busbee against it.
The main points in the opinion are as
follows:
The Seaboard Air Line Railway, fled
a petition in the State court under the
State statute asking for a condemnation
OF a strip of land fifteen feet wide of
the right-of-way of the North Carolina
Railroad Company, Southern Railway
Company, lessee. and what is known as
Peabody street in the city of Durham.
"0n verified petition of the Southern
Railway Company the cause account
OF local prejudice and inability to get
Justice In the State court, as set out,
was removed to the United States Circuit
now moves to remand the cause, alleging
the same was improperly removed because
there are other defendants than the
Southern Railway Company admitted to
be a nonresident corporation) VINO are
residents of the State, that this is not
searable controversy and there Is no
local prejudice against the Southern Rail
way Company, but it is growing in favor
In Durham.
Is this a separable controversy? w 40
is Interested In its settlement? To determ-
inc this question the court, if necessary.
may arrange the parties, and this court
cannot be deprived of jurisdiction by an
arbitrary arrangement ef parties, plaintiff
aud defendant. If the real party in in
terest Is entitled to remove and have
his rights passed upon in the courts of
the United States ne may remove though
d nominal party mas no such right.
1T may be here noted, that at the
time the former decision referred to was
rendered, a proceeding for a similar pur
pose, the same relief, a condemnation OF
a part of the right-of-way on what is
known as Peabody street, was pending
In this court. entitled, the Durham and
Northern Railroad Company VS.. North
Carolina Railroad Company, ct. al Soon
after the decision the plaintiff took a
non-suit and this proceeding was institu-
ted in the name of the Seaboard Air
Line Railway to part of the locus in
quo for right-of-way for that corpora
tion. Under such circumstances where
mere nominal parties are Joined, It will
be held to have been done to prevent
removal.
"The North Carolina Railroad Company
has Leased III ifc r.rnnarfv fro oI;c.,., ato
for term of ninety-nine years to the
Southern Railway Company, and this lease
has been held to be valid The North
Carolina Railroad Company. could not.
therefore. under any circumstances, ex-
cept upon an abandonment, or surrender
or the lease. have any interest in the con-
troVersy, until the expiration of the lease
in 1894.
1T would seem, therefore. that the
Southern Railway Company is at present
alone interested in the controversy. and
II the other defendants are interested.
which interest has not been manifested BY
an appearance, as to the Southern Rail-
way Company, it is a separable contro-
yersy.
"As already decided in the case of
City of Durham VS. Southern Railway
Company, by this court, the city of Dur
ham, joined as party defendant, has no
title or interest in the subject matter
of this proceeding.
Several Of the alleged heirs of the
original owners of the fee are joined as
defendants Referring to the former de-
cision it will be seen they can have no
interest in common with the North Car
olina or Southern Railway Companies
.,but if they have any interest at all it is
In IN hnld ar nloivsa
ling the easment on and over the realty.
saThe o. and c. r. r. as will be seen
from the facts found in the former case
has been sold and bought by the Southern
Railway Company.
Applying these principles, re-arrangng
the parties or regarding them as nominal
parties, necessary perhaps) it appears
the nonresident defendant, is the only
real party interested in the controversy.
1t is a separable controversy and may be
removed
This cause was removed under Section
4. OF the Act OF 1888, which provides
Any defendant may for local prejudice
have his cause removed into the courts OF
the United States and this section seems
to broaden instead of restricting the law.
The Supreme court has not settled the
question discussed, but the decisions of
the other courts of the United States are
numerous. The cases cited in Moon on
Removal Section 1863, states the law to
be that for the purposes of removal ali
the parties on one side must be citizens
oi the State where the sul. is brought
and all the parties on the other side citi-
zens OF another or other States
The most recent published decision ON