LADEW et al. v. TENNESSEE COPPER CO. et al.

(Circuit Court, S. D. Tennessee, E D. February 15, 1910.)

No. 1,012.

1. DISMISSAL AND NONSUIT (§ 55*)-FEDERAL COURTS-DeterminaTION OF QUESTION OF JURISDICTION.

Want of jurisdiction of a federal court, apparent on the face of a bill, may be taken advantage of by a motion to dismiss.

[Ed. Note. For other cases, see Dismissal and Nonsuit, Cent. Dig. § 116; Dec. Dig. § 55.*]

2. COURTS (§ 269*)-JURISDICTION OF FEDERAL COURTS-LOCAL ACTIONS. When the requisite diversity of citizenship between the parties exists to give a federal court jurisdiction, a suit to establish a lien or claim on property within the provisions of section 8 of the judiciary act (Act March 3, 1875, c. 137, 18 Stat. 472 [U. S. Comp. St. 1901, p. 513]), may be maintained in the district where the property is situated although neither the plaintiff nor defendant is a resident of such district.

[Ed. Note. For other cases, see Courts, Cent. Dig. § 809; Dec. Dig. § 269.*]

3. COURTS (269*)—JURISDICTION OF FEDERAL COURTS-LOCAL ACTIONS.

Section 8 of the federal judiciary act (Act March 3, 1875, c. 137, 18 Stat. 472 [U. S. Comp. St. 1901, p. 513]), which authorizes suits "to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property" to be brought in the district where the property is situated, does not extend to all suits of a local nature nor to all local actions in rem but is definitely limited to suits brought to enforce the rights specified, and cannot be extended beyond them by construction.

[Ed. Note. For other cases, see Courts, Cent. Dig. § 809; Dec. Dig. § 269.*]

4. COURTS (§ 269*)—JurisdictION OF FEDERAL COURTS CONSTRUCTION STATUTE "CLAIM TO PROPERTY."

OF

The words "claim to * property" as used in section 8 of the judiciary act (Act March 3, 1875, c. 137, 18 Stat. 472 [U. S. Comp. St. 1901, p. 513]), authorizing suits to enforce such claims to be brought in the district where the property is situated, relate only to claims made to the property in the nature of an assertion of ownership or proprietary interest or other direct right or claim to the property itself, and do not include a suit which merely seeks to enforce a restriction which the law imposes upon the owner of the property in reference to its proper use to avoid injury to other property, as one to abate or enjoin a nuisance.

[Ed. Note. For other cases, see Courts, Cent. Dig. § 809; Dec. Dig. § 269.*]

5. STATUTES (§§ 174, 175*)—RULES OF CONSTRUCTION.

The construction and interpretation of statutes cannot extend to amendment or legislation, nor can considerations of apparent hardship justify a strained construction of the law as written.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 254; Dec. Dig. §§ 174, 175.*]

6. COURTS (§ 269*)-FEDERAL COURTS-SUITS FOR ABATEMENT OR INJUNCTION -VENUE.

While an action to abate or restrain a nuisance is of a local nature, and can only be maintained in a court having the proper territorial jurisFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

diction, the venue of such action is in the district where the nuisance itself is located.

[Ed. Note. For other cases, see Courts, Cent. Dig. § 809; Dec. Dig. § 269.*]

7. NUISANCE (8 84*)-SUITS TO ENJOIN-PARTIES.

In a suit to abate or restrain a nuisance, as distinguished from an action for damages, all persons maintaining structures or carrying on operations, whose effect mingles and combines in contributing to the injury to the plaintiff's property, may properly be joined as defendants, although each transacts his own business separately and independently from the others.

[Ed. Note. For other cases, see Nuisance, Dec. Dig. § 84.*]

8. COURTS (§ 318*)—JURISDICTION OF FEDERAL COURTS-EFFECT OF DISMISSAL AS TO ONE DEFENDANT.

The dismissal without prejudice of a suit in a federal court as to one of several defendants who might be sued either separately or jointly, either on his objection to the local jurisdiction on the ground that neither he nor plaintiff is a resident of the district, or on the ground that he and plaintiff are both residents of the same state, where he is not an indispensable party, does not necessitate a dismissal as to other defendants properly before the court.

[Ed. Note. For other cases, see Courts, Cent. Dig. § 863; Dec. Dig. § 318.*]

9. COURTS (§ 307*)—JURISDICTION OF FEDERAL COURTS-SUIT AGAINST CITIZEN AND ALIEN.

A suit brought by a citizen of one state against a citizen of another state and an alien, as defendants, involving the requisite jurisdictional amount, is within the jurisdiction of a Circuit Court of the United States. [Ed. Note. For other cases, see Courts, Dec. Dig. § 307.*

Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]

In Equity. Suit by J. Harvey Ladew and others against the Tennessee Copper Company and the Ducktown Sulphur, Copper & Iron Company, Limited. On separate motions by defendants to dismiss. Sustained as to the Tennessee Copper Company, and overruled as to the Ducktown Sulphur, Copper & Iron Company, Limited.

Chas. Seymour, for complainants.

Cornick, Wright & Frantz and W. B. Miller, for defendants.

SANFORD, District Judge. This bill was filed by the complainants, citizens and residents of the states of New York and West Virginia, against the Tennessee Copper Company, a corporation of the state of New Jersey, and the Ducktown Sulphur, Copper & Iron Company, Limited, a corporation of the kingdom of Great Britain, each having its main office and business in Polk county, Tenn., within this judicial district.

The bill alleges that the complainants are the joint owners of certain tracts of forest lands and timber rights in the state of Georgia containing altogether 24,000 acres, and timber aggregating in value many thousands of dollars; that the defendants are engaged in mining, and manufacturing sulphur and copper ores in Polk county,

•For other cases see same topic & § NUMBER in Dec. & Am, Digs. 1907 to date, & Rep'r Indexes

Tenn., near the Georgia state line, within a short distance of complainants' property, and have erected and are operating furnaces, smelters, and ovens for roasting and reducing such ores, in close proximity to one another, upon lands in Polk county, Tenn., owned or leased by them, respectively; that, "by reason of their ownership of the lands, and forests aforesaid," complainants "both in law and equity are possessed of a right and claim in, to, and against the lands and tenements of the defendants in the nature of an easement thereupon that same shall not be used in a manner to injure or destroy the said lands and forests of your orators adjacent thereto as aforesaid"; that the defendants by means of said furnaces, smelters, and ovens, and in other ways generate vast quantities of smoke and fumes which inextricably mingle a short distance from their works and are together discharged upon complainants' lands and forests, and have destroyed much of complainants' forests and inflicted great damage; that the zone of destruction is constantly increasing, and the defendants' operations, if permitted to continue, will destroy all of complainants' forests and timber, and all other forms of plant and tree life, and render their lands barren, unfit for occupation, and valueless; that it is impossible to calculate or approximate the damage threatened, and the complainants are without remedy in a court of law, and unless relief is granted, will suffer irreparable injury; and that "an injunction to prevent the perpetration of said wrongs is the only adequate relief that complainants can secure." And "to the end that" the aforesaid right and claim of complainants to and upon the properties of the defendants, that the same shall not be used in a manner to destroy or injure the lands and forests of complainants, may be declared and enforced, and that the nuisance maintained upon said properties may be abated by and under the direction of the court, through its own officers or otherwise, and that such changes be made by and under its direction in and to the defendants' properties as shall prevent the discharge there from upon complainants' lands and forests of the aforesaid deleterious substances, and that the defendants may be restrained by injunction from doing or causing the acts complained of, or their continuance, the complainants pray that writs of injunction be granted restraining and enjoining the defendants, their officers, agents, and servants, from maintaining or operating upon their premises any oven, furnace, or appliance giving forth any of the smoke and fumes complained of, or otherwise producing or causing any noxious or injurious smoke or fumes upon the complainants' lands, and commanding them to desist and refrain from using, maintaining, or operating, any furnace or other appliance or copper reducing method giving off or discharging any noxious smoke or fumes upon the complainants' lands; and they further pray for general relief.

By an amendment to the bill, made by leave of the court, complainants further allege that the properties and operations of each defendant constituting the nuisance sought to be abated are of greater value than $5,000; that the injury which will be done to complainants' lands by each of the defendants unless the nuisance is abated, exceeds in value $5,000; and that the matter in controversy exclusive of interest and cost exceeds $5,000. Subpoenas to answer were issued, a's

prayed in the bill, and served upon the highest officer of each of the defendants to be found within this district.

Motion of the Tennessee Copper Company.

The Tennessee Copper Company, having entered a special appearance for the sole purpose of objecting to the jurisdiction of the court, moved to dismiss the bill on the ground that as it appears upon its face that the complainants are citizens and residents of New York and West Virginia, and said defendant a citizen and resident of New Jersey, and that neither the complainants nor said defendant are citizens or residents of the Eastern District of Tennessee, this court has no jurisdiction.

It is well settled that a want of jurisdiction apparent on the face of the bill may be taken advantage of by motion to dismiss. Coal Company v. Blatchford, 11 Wall. 172, 20 L. Ed. 179; Central Trust Co. v. McGeorge, 151 U. S. 129, 132, 14 Sup. Ct. 286, 38 L. Ed. 98; Connor v. Vicksburg & M. R. Co. (C. C.) 36 Fed. 273, 1 L. R. A. 331; Municipal Inv. Co. v. Gardiner (C. C.) 62 Fed. 954; Stichtenoth v. Central Exchange (C. C.) 99 Fed. 1.

It is also clear, as is conceded by the complainants, that as Act March 3, 1875, c. 137, § 1, 18 Stat. 470, as amended by Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), provides that when the jurisdiction of the Circuit Court is founded only on the fact that the parties are citizens of different states, suit shall be brought only in the district where either the plaintiff or defendant resides, and as neither the complainants nor the Tennessee Copper Company, a New Jersey corporation, are residents of this district, if jurisdiction of this case depends upon diverse citizenship alone the Circuit Court of this particular district is without jurisdiction, and such want of local jurisdiction not having been waived by said defendant, the suit as to it must be dismissed. Shaw v. Quincy Min. Co., 145 Ü. S. 444, 12 Sup. Ct. 935, 36 L. Ed. 768; Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942; In re Keasbey & Mattison Co., 160 U. S. 221, 16 Sup. Ct. 273, 40 L. Ed. 402; Western Loan Co. v. Mining Co., 211 U. S. 368, 28 Sup. Ct. 720, 52 L. Ed. 1101.

The complainants contend, however, that jurisdiction of this suit does not depend upon diverse citizenship alone, but that it is an action. relating to property which may be brought against said defendant in this district under Act March 3, 1875, c. 137, § 8, 18 Stat. 472, which provides that "when in any suit commenced in any Circuit Court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to real and personal property within the district where such suit is brought," any of the defendants shall not be an inhabitant of, or found within said district, or voluntarily appear, an order directing such absent defendant to appear and make defense may be served on him personally, wherever found, or when this is impracticable, by publication, and that in default of such appearance, the court may "entertain jurisdiction, and proceed to the hearing and adjudication of such suit; * but said adjudication shall, as regards said absent defendant

without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district."

This section of the Act of 1875 was not repealed by the Act of 1888, and remains in full force. Mellen v. Moline Wks., 131 U. S. 352, 9 Sup. Ct. 781, 33 L. Ed. 178; Jellenik v. Huron Copper Co., 177 U. S. 1. 10, 20 Sup. Ct. 559, 44 L. Ed. 647; Citizens' Saving Co. v. Ill. C. R. Co., 205 U. S. 46, 54, 27 Sup. Ct. 425, 51 L. Ed. 703. And when the requisite diversity of citizenship exists to give the Circuit Court jurisdiction, a suit embraced within the provisions of this section may be brought within the district in which the property is situated, although neither the plaintiff nor defendant is a resident of such district. Greeley v. Lowe, 155 U. S. 58, 15 Sup. Ct. 24, 39 L. Ed. 69; Citizens' Saving Co. v. Ill. C. R. Co., supra; Single v. Paper Mfg. Co. (C. C.) 55 Fed. 553; Spencer v. Stockyards Co. (C. C.) 56 Fed. 741. The present suit does not, however, in my opinion come within the provisions of section 8 of the act of 1875.

First. It clearly cannot be held to be within the provisions of this section under the broad theory upon which complainants rely that it is purely a local action in rem to abate a nuisance, wherein relief may be given without a judgment in personam against the defendants, through process of the court, executed by its officers and operating directly on the res, and hence as such local action in rem is necessarily included within the provisions of said section 8.

In the first place, as the bill does not allege that either of the plants of the defendants, or any particular structures or appliances therein, constitutes a nuisance per se, which should be abated or destroyed under process of the court, but, in effect, merely complains generally of an unlawful use of the defendants' properties by methods of operating their plants, which generate and diffuse noxious fumes and smoke over the complainants' properties, and, while it contains an incidental reference to an abatement of the nuisance by officers of the court, on the other hand avers specifically that an injunction to prevent the perpetration of the wrongs is the only adequate relief that complainants can secure, and prays for no specific relief other than an injunction. operating upon the defendants in personam and restraining them from an improper use of their property, the suit, evidently, is not, under the pleadings, purely an action in rem to abate a nuisance, but is, on the contrary, primarily and essentially an action to restrain a nuisance by injunctive relief operating in personam upon the defendants. Thus considered, it would follow that if the doctrine of York County Savings Bank v. Abbot (C. C.) 139 Fed. 988, 994, a case upon which complainants rely, that no jurisdiction is conferred upon the Circuit Court under section 8 of the act of 1875 in an action where complete relief cannot be given according to the terms of the bill without a judgment in personam against an absent defendant, be correct, the court would clearly be without jurisdiction of the case.

And, if jurisdiction under section 8 of the act depended upon whether the proceedings were essentially in rem or in personam, it might well be doubted whether the specific prayer for injunctive relief