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was not of the essence, and any objection for failure to remove within the time required by the statute must be made promptly, or the right to object for that reason is lost. Newman v. Schwerin, 61 Fed. 865, 10 C. C. A. 129; Martin v. B. & O. R. Co., 151 U. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 311. Upon the same line of reasoning a defendant should not be deprived of his constitutional and statutory right to a trial in a court of the United States upon the ground of waiver unless a clear case of intent to submit and have a hearing in the state court is made to appear. The mere filing of any answer or plea or any other defense before it is due under the law or rule of the state court is not inconsistent with the subsequent removal of the case. The premature filing of a defense is in no sense a trial or hearing, and is not conduct establishing a waiver of the right to remove. The statute does not require the petition to be filed before any defense is filed, but only before the time when the first defense is required to be filed. Gavin v. Vance (C. C.) 33 Fed. 84; Conner v. Coal Co. (C. C.) 45 Fed. 802; Duncan v. Associated Press (C. C.) 81 Fed. 417-422; Champlain Const. Co. v. O'Brien (C. C.) 104 Fed. 930.

This brings us to the question as to whether the hearing in the state court upon the motion to discharge the ex parte preliminary injunction should operate to defeat the right to remove, although the petition was filed within the time prescribed by the statute. In view of the fact that the law requires the petition to remove to be filed on or before the time when the first reading by the defendants may be required, it may be inferred that Congress did not intend to allow a removal after the trial of the case, or any question in the case, even though such trial should occur before the time when the first defense was due under the law. Under Act March 3, 1875, c. 137, § 3, 18 Stat. 470 [U. S. Comp. St. 1901, p. 510], which allowed a removal at or before the time at which the case could be first tried, "and before the trial," it was held that a hearing upon a demurrer was a trial of the action within the meaning of that act. Alley v. Nott, 111 U. S. 472, 4 Sup. Ct. 495, 28 L. Ed. 491. In Removal Cases, 100 U. S. 457, 473, 25 L. Ed. 593, it was held that, if the trial had actually begun before the application to remove, the right of removal was gone, though there had been no judgment. The court in that case said that Congress did not intend by the expression "before trial" to allow a party to experiment on his case in the state court, and, if he met with unexpected difficulties, stop the proceedings, and take his suit to another tribunal. If there was any hearing of the appellant's case, or if any hearing was begun, though no judgment had been rendered, before the filing of the petition to remove, the right to remove may well be regarded as waived, the hearing concluded or begun being inconsistent with the clear purpose of the act that the removal shall occur before any such experimenting with the state court. The question, then, to be decided is whether by the filing of an answer and by the hearing which did occur before the petition to remove was filed the right of removal was waived or lost. This hearing, which was had before the removal, was upon a motion to dissolve a preliminary injunction which had been granted without notice. In effect, it was neither more nor less than a motion for an injunction pendente lite, for the injunction allowed was without notice, and nothing more than a restrain

ing order to stand until there could be a hearing upon notice of the question of the allowance of an injunction to preserve the status until a final hearing. The question to be decided was whether there was a probable right which might be jeopardized unless an injunction should preserve the status until a final hearing. It is a question which largely appeals to the discretion of the chancellor, regulated by the balance of inconvenience or danger to the parties. Flippen v. Knaffle, 2 Tenn. Ch. 238; Blount v. Societe, etc., 53 Fed. 98, 3 C. C. A. 455, 457; Glascott v. Lang, 3 Mylne & C. 451, 455; Grt. Western Ry. Co. v. Birmingham & O. J. Ry. Co., 2 Phil. Ch. 602; Allison v. Corson, 88 Fed. 581, 32 C. C. A. 12.

In Blount v. Societe, etc., cited above, Jackson, Circuit Judge, speaking for this court, said:

"The object and purpose of a preliminary injunction is to preserve the existing state of things until the rights of the parties can be fairly and fully investigated and determined upon strictly legal proofs and according to the course and principles of courts of equity."

In Grt. Western R. Co. v. Birmingham R. Co., cited above, Lord Cottenham said:

"It is certain that the court will in many cases interfere and preserve property in statu quo during the pendency of a suit in which the rights to it are to be decided, and that without expressing, and often without having the means of forming, any opinion as to such rights. It is true that the court will not so interfere if it thinks there is no real question between the parties; but, seeing that there is a substantial question to be decided, it will preserve the property until such question can be regularly disposed of. In order to support an injunction for such purpose, it is not necessary for the court to decide upon the merits."

Under the practice in the chancery courts of Tennessee, as stated by so eminent an equity judge as Chancellor Wm. F. Cooper, in Owen v. Brien, 2 Tenn. Ch. 295, the chancellor, though sitting in open court, will not ordinarily decide any matter upon its merits upon a motion to allow or dissolve a temporary injunction. But the hearing in this matter was not in open court, but at chambers, and the chancellor has at chambers no power to decide any cause upon its merits, unless it be a hearing by consent of some of the matters provided for by the Tennessee act of 1903, p. 577, c. 248; Shannon's Tenn. Code, 6220, 6223. A motion to dissolve or allow a mere temporary injunction is a matter which could always be heard at chambers, and the jurisdiction of a Tennessee chancellor at chambers in respect of such motions is not enlarged or regulated by the act cited. The hearing in this cause could not have been a hearing upon the facts, for the motion was heard only upon the bill, answer, and ex parte affidavits. Such affidavits are not legal proofs, and are admissible only for the purpose of guiding the discretion of the chancellor in allowing or disallowing a preliminary injunction. That the learned chancellor expressed opinions which bore upon the merits is of no moment, for he could do no more, and was called upon to do no more, than decide whether, upon such a prima facie showing, the complainant had a probable right which should be preserved until a hearing upon legal proofs and according to due course of equity could be had. To that extent the hearing before him at chambers went, and no further. The same motion might have been renewed

again and again, for the matter was not concluded by the disallowance of the motion made. Having regard to the fact that the hearing had was before a judge in chambers having no jurisdiction to hear the cause upon the facts, and upon ex parte affidavits, we conclude that the refusal of the court to discontinue the pending preliminary injunction was not a hearing upon the merits, nor the trial of the suit upon any question affecting the merits, and therefore not such a hearing as will defeat the right of removal. The question presented by the facts stated has not been authoritatively decided by the Supreme Court nor any of the Circuit Courts of Appeal. The decisions in the Circuit Courts are not altogether harmonious, but the decided weight of authority lends support to the conclusion we have reached. Gavin v. Vance (C. C.) 33 Fed. 84; Freeman v. Butler (C. C.) 39 Fed. 1; Garrard v. Silver Peak Mines Co. (C. C.) 76 Fed. 1; Duncan v. Associated Press (C. C.) 81 Fed. 417-422; Purdy v. Wallace Muller Co. (C. C.) 81 Fed. 513; Whitley v. Malleable Castings Co. (C. C.) 83 Fed. 853; Champlain Con. Co. v. O'Brien (C. C.) 104 Fed. 930; Sidway v. Missouri Land Co. (C. C.) 116 Fed. 382.

2. Did the district court abuse its discretion in denying a preliminary injunction to the Atlanta, Knoxville & Northern Railroad Company and awarding one to the Southern Railway Company upon its cross-bill? The contention is that the appellant, the Atlanta, Knoxville & Northern Railroad Company, acquired a priority of right to an easement of way across the land of said Luttrell by reason of the filing of its petition for a condemnation before the deed of Luttrell was put to record. It is true that the learned counsel have also laid some stress upon an alleged prior survey and location. But, as already indicated, we do not find, upon the present state of the record, that this claim is substantiated. Preliminary surveys were made by both companies, and it may be that the first preliminary reconnaissance was made by the appellant company. But the weight of evidence is that the Southern Railway Company completed its survey and location first, and first definitely determined upon the construction of the spur in question. It was only after the appellant company learned, through the press and by reports, that the Southern Railway Company had concluded an agreement with the establishments to be reached by the proposed spur that the complainant company definitely determined to build a spur, regardless of any agreement with the people with whom it had been negotiating. Neither do we attach any importance to the fact that on the night of July 2d, and after the filing of the condemnation proceedings, the appellant company placed a force of men at work upon the disputed premises. This it did without the consent or knowledge of either Mr. Luttrell or the Southern Railway Company, and without the slightest semblance of legal authority or moral right. The mere fact that it had theretofore surveyed a line across Mr. Luttrell's property, and had started condemnation proceedings, gave it no right to take possession without the consent of the owner, and in advance of a condemnation. The Tennessee statute regulating the taking of private property for public uses does not authorize an occupation before an assessment of damages, and no court of equity can afford to regard a bold act of trespass as a sound foundation for an equitable priority of right.

The question is thus narrowed down to this: Can one railroad company acquire a priority by filing a petition for the appropriation of particular piece of property over a prior unrecorded acquisition of the same property by contract by another railroad company for an identical public use, with or without notice of the unrecorded prior conveyance? We pass, for the present, the effect of the notice of the prior rights of the Southern Railway Company heretofore set out. By an act of the Tennessee Legislature any railroad company is given authority to build. and operate "lateral roads not exceeding fifteen miles in length, extending from the main stem or branch to any mill, quarry, mine, manufacturing plant," etc. Acts Tenn. 1903, p. 461, c. 210. Whether, and under what circumstances, private property can be taken for the construction of a spur to accommodate a private enterprise exclusively may be a matter of some doubt. The authorities are, perhaps, not harmonious, and the cases are noticed in 10 Am. & Eng. Ency. of Law (2d Ed.) p. 1078 et seq. See, also, Clark v. White, 2 Swan, 540; Memphis, etc., Co. v. Memphis, 4 Cold. 406, 424; Chattanooga Terminal Co. v. Felton (C. C.) 69 Fed. 273. We pretermit any expression of opinion, and for the purposes of this case shall assume that the Tennessee Legislature has the constitutional power to authorize the condemnation of private property for the purposes indicated by the proceeding instituted by the appellant corporation. The provisions of law conferring and regulating the right to condemn land for works of public improvement are contained in sections 1844 to 1867, inclusive, of Shannon's Code of Tennessee. The proceeding is by petition and notice to the owner, and section 1848 provides that the proceeding shall only "cover and affect the interest of those who are actually made parties," except unborn remaindermen. An analysis of the sections referred to indicates a careful observance of the rights of property owners and a purpose to prevent the acquisition of any rights by a corporation seeking to make an appropriation until a judgment of condemnation and an actual payment of the damages assessed. Section 1864 is supposed to confer some right to go upon and survey a right of way against the will of the owner, and before condemnation. The section reads thus:

"A person or company actually intending to make application for the privileges herein contemplated, and entering upon the land of another for the purpose of making the requisite examinations and surveys, and doing no unnecessary injury, is liable only for the actual damage done, and if sued in such case, the plaintiff shall recover only as much costs as damages."

If this be construed as permitting an entry against the will of an owner, it is, at most, an entry solely for the purpose of making the requisite examination and survey preliminary to the filing of a condemnation suit, and does not authorize any dispossession of the owner or occupancy for purposes of construction. But to make it plain that this provision shall not be regarded as affecting the owners' rights any further, the next section (1865) provides:

"No person or company shall, however, enter upon such land for the purpose of actually occupying the right of way, until the damages assessed by the Jury of inquest and the costs have been actually paid; or, if an appeal has been taken, until the bond has been given to abide by the final judgment as before provided."

When, however, the damages have been assessed by a jury of inquest, and the defendant takes an appeal because dissatisfied, the railroad company may proceed with its construction, upon giving bond and security as provided by section 1864. No right of occupancy exists unless such bond is given. White v. Rd. Co., 7 Heisk. 518.

Section 1866 is supposed to recognize some right to take possession prior to an actual legal appropriation. This is a mistake. This section simply provides that an owner whose land has been taken may petition for a jury of inquest, and have the damages assessed as if upon a petition by the company for a condemnation, or "sue for damages in the ordinary way." Instead of authorizing by implication or otherwise an occupancy without the consent of the owner, the statute simply intends to enlarge the remedies of the owner in case possession is taken either with or without the consent of the owner so as to permit him to sue for an assessment of damages by a jury of inquest, or resort to any other common-law remedy. The section has been construed in Duck River R. Co. v. Cochrane, 3 Lea, 478, and Parker v. Railroad, 13 Lea, 669; and in the last-named case a bill was sustained which sought to enjoin further possession or occupancy taken against the owner's will.

It is not essential to the validity of a law authorizing an appropriation of land that provision shall be made for the payment of compensation before the actual appropriation, unless there is an express constitutional provision to that effect, provided adequate provision is made whereby compensation may be certainly obtained. Cooley's Constitutional Limitations, 6545 et seq.; White v. Railroad, 7 Heisk. 518. What we mean to be understood as holding is that the provisions of the existing law of Tennessee, as found in the Code sections referred to above, do not authorize an appropriation without a condemnation and the payment of compensation, save in the case provided for by section 1864, where there is an appeal after the damages have been assessed by a jury of inquest, in which latter case a bond in double the value of the damages assessed may be given conditioned to perform the final judgment. White v. Railroad, 7 Heisk. 518. But it is a sound and inflexible principle of constitutional law that private property cannot be taken and appropriated to a public purpose under the power of eminent domain except in accordance with legislative regulation and in strict pursuance of statutory authority. The corporation claiming the right to appropriate must follow the proceedings authorized by law, for in no other way can it deprive a citizen of his property right. Cooley's Constitutional Limitations, 653 et seq.; White v. Railroad, 7 Heisk. 518; 7 Ency. Pl. & Pr. 468. The cases of Simms v. Memphis & Charleston R. R., 12 Heisk. 621, and Railroad v. Telford, 89 Tenn. 293, 14 S. W. 776, have been cited as constructions of section 1866, and as holding that a railroad company may, without compensation or the consent of the owner, occupy land for railroad purposes; and that the provision of this statute for obtaining compensation obviates any constitutional objection. Neither case involved any application of this Code provision, and both cases involved the rights of the owner of lands appropriated or occupied by railroad companies under the terms of private or special railway charters. In the Simms Case the remedy of the own

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