The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1912-04-19
petition and for affirmative relief al

linen 1OllOW TeCltdiS W tue chSSl
that the Power Company Is naked
trespasser on the bed of the river, the
lands of the state Of Iowa, erecting a
Golfer dam; that 1t is mere private
corporation for profit, impeding navi-
cation. beyond legal control, and is
continuing trespasser.
The paragraph concludes in this Ian
guage:
And this plaintiff therefore prays
that the defendant be enjoined and re.
strained from taking and appropriat.
ing the property of this plaintiff for It's
said Illegal use and unwarranted pur
poses, and that said Injunction be
made permanent and perpetual, and
that this plaintiff have all such other
and further relief as in equity and good
conscience he is entitled
/ Thereupon the Power Company fled |
its Petition and Bond for removal to
this Court
The state court ordered the removal.
A motion by Hagerla to remand is
now for decision
There are some matters relating to
removals, not longer subject to de-
lbate.
| Under the act of 1887 (1sSs) and the
present Judiciary Act. whether by
treason of diversity of citizenship, or
! iby reason of Federal question, no one
put a defendant can obtain a removal.
4 Another proposition equally clear is
that in mere naked proceeding to ap-
propriate land and ascertain the in
demnity, under eminent domain pro-
ceedings, the land owner is the de-
PENDANT and the corporation is the
plaintiff. R.sR. VS.. Boynton, 204 U. >.
$40.
The designation by the Iowa sta
tute of the land owner as plaintiff, and
! 1.-The corporation as defendant, Is with
: out effect as to removal proceedings,
. and the self-designation by the parties
= to the record is OF no importance. Ano
it is equally clear that such proceed
! ings is an action of civil nature. and
in this case the requisite amount is
: involved.
= That there is no other phase OF
= American Jurisprudence with SO many
:, ref1nements and subtleties, as relate
= to removal proceedings, is known by
= all who have to deal with them.
y Those who doubt this statement
~ should but read my opinion In Kirby
= vs.. r. r., LOG Fed. Rep. 551. followed
- on the same record in Myers vs.. r. r..
Fills Iowa 312, citing my decision with
10 approval Then there is my decision
~ in the Boynton case, in which ! re-
'e versed my own decision In the Kirby
~ case And then the affirmation Of my
Boynton decision GOA U. s. SID. Then
~ turn to the Wisner case, 203 U. S. 449
US followed by the criticism and partia
~ overruling in In re Moore, 200 U. S. 49(
!. and in In re VIM, 213 u. s. 45S. Ane
ms then see Elk parte Harding, 219 U. S
~ ~ 363, overruling the Wisner and VIM
~, cases.
Ne / call attention to those cases, no
~ by way of criticism, but to show tn
~ late decisions, and to show the vexin
=, questions Judges on the circuit hav
- had to consider.
!. ~ Here is case which presents re
'ee moval questions relating both to d
a. versity of citizenship, and Fedora
i !, presented by the pleading filed b
-ne Hagerla and the removal petition file
~ by the Power Company. The latte
1u specifically recites Federal questions
~ ny and the pleading of Hagerla recite
a. a. facts, coupled with facts of which tn
'no Court takes judicial notice, such a
~, the navigability of the river, and tn
~ ownership of the bed of the rive
.n and the supervision and control owe
!, the same by the general government
I. which present Federal questions equa
! s ly clear. So that, both phases al
u kept in mind as reach conclusion
10 And another proposition must NJ
be overlooked. Under the Iowa pra
- tice acts, both legal and equitable d
lenses can be pleaded; even contradi
o90 tory defenses can be pleaded But II
. United States procedure forbids SUI
q practice.
AS defendant only can remove
case, the great question here Is as
whether Hagerla or the Power Co
pany Is the real defendant. That Ha
~ erla is the defendant as to the TAXI
. of his property in the proceedings
law, and the assessment Of his da
4 ages, is net longer questioned. by RI
son Of the Boynton case. But this
our not all of the case. He says in effe
YER that the building OF the dam, and til
get the dam is an enterprise of privs
lII nature for private gain. That Is
Hill question of fact coupled with matte
Hin judicially noticed. But it is not
lin question for jury 1t is a questi
l|Ii to be heard either in certiorari or q
l||I warranto, of doubtful efficiency. E
YQE even with such proceedings tbs
Nf would have to be an auxiliary writ
d|II injunction to protect Hagerla, If in
IlIg right. His counsel recognize this b,
[l|lI distinct prayer for the writ, coup