This is a motion to remand. The action was brought in the state court by the plaintiff, a railroad corporation of this state, against the California Pacific Railroad Company, also alleged to be a corporation organized and existing under the laws of this state, the Southern Pacific Company, a corporation having its creation and existence under the laws of Kentucky, and other defendants, sued by fictitious names, to condemn property for use as a right of way for plaintiff's railroad-- the complaint alleging that 'the owners and claimants of the property herein sought to be condemned and herein described, so far as the same are known to the plaintiff, are: California Pacific Railroad Company, a corporation, Southern Pacific Company, a corporation,' and the fictitious defendants; and after a description of the property sought to be taken it is alleged 'that the defendant California Pacific Railroad Company claims to own said real property hereinbefore described, and required by plaintiff, being the entire parcels or tracts of land, of which the real property sought to be taken is the whole.' Mastick & Partridge, of San Francisco, Cal., for the motion.

Devlin & Devlin, of Sacramento, Cal., opposed.

VAN FLEET, District Judge (after stating the facts as above).

The facts set forth in the plaintiff's motion to remand and the accompanying affidavit in their support, as to the present state of the title to the premises, must be laid out of view and disregarded in determining the removability of the case, since that question must depend upon the state of the record in the state court when the cause was removed here. Louisville, etc., R.R. co. v. Wangelin, 132 U.S. 599, 10 Sup.Ct. 203, 33 L.Ed. 474; Alabama G.S. Ry. v. Thompson, 200 U.S. 206, 26 Sup.Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147.

As appears from the facts stated the removal was sought on the two grounds of diversity of citizenship and the existence of a separable controversy as between the removing defendant and the plaintiff. Upon the first ground where there are several defendants joined, a removal cannot be had, unless it appear from the record that the defendant seeking it is the sole, proper, or necessary party defendant in the action.

Under the law of California (section 1244, subd. 2, Code of Civil Procedure) all owners or claimants of property sought to be condemned are necessary parties to the action. In this respect the complaint (ignoring the nominal or fictitious defendants) proceeds upon the theory, and alleges, that both the Southern Pacific Company, the defendant bringing the cause here, and the California Pacific Railroad Company, alleged to be a corporation organized and existing under the laws of this state, are claimants of the property sought to be condemned. For present purposes, these allegations of the complaint are conclusive on the court; there being no averment in the petition for removal that the local corporation was wrongfully joined as a defendant for the purpose of preventing a removal. The averments in the petition that the latter corporation is 'defunct and extinct,' and 'has no right, title, or interest in the property,' and that the Southern Pacific Company 'is the only proper party defendant appearing on the face of said complaint,' are unavailing to change the aspects of the case, as those averments only tend to raise issues which may not be competently inquired into on this motion. Whether the alleged local corporation defendant is now in existence, and, if so, has title to the property, are questions involved in the merits of the cause of action stated, and upon which the plaintiff is entitled to have issue joined in the formal pleadings and regularly tried with the other issues in the case by a jury. Louisville, etc., R.R. Co. v. Wangelin, supra, 132 U.S. 603, 10 Sup.Ct. 203, 33 L.Ed. 474. Upon the record, therefore, the case is not one subject to removal upon the ground of diversity of citizenship.

Does the record disclose the existence of a separable controversy? In this regard the averments of the petition are very general and meager. In effect, the bald averment above stated that a separable controversy exists is no more than the averment of a conclusion of law. On the requirements of the petition in this respect, Mr. Moon says:

'Although the plaintiff's complaint must be looked to as the evidence from which to determine whether a suit contains a separable controversy, a petition for removal on such ground should itself 'distinctly show and point out the separable controversy, name the parties to it, and state all the grounds upon which the petitioner relies.' ' Removal of Causes, Sec. 159.

As plaintiff, however, makes no point based on the paucity of the petition in this respect, the court will examine the allegations of the complaint to see if such ground is disclosed.

The complaint, as we have seen, alleges, and, so far as appears, in perfect good faith, that ownership in the premises involved is asserted by both of the two corporations named as defendants, the California Pacific Railroad Company and the Southern Pacific Company. The specific character of the ownership of each is not attempted to be stated, and it was not necessary that it should be, that being more properly subject-matter for an answer. The pleading is therefore to be taken, notwithstanding it describes the property as consisting of separate lots, as proceeding upon the theory that each of these two defendants makes claim of ownership in the entire property sought to be condemned treated as a single parcel, and that the pleading is so understood by the removing defendant is disclosed by the allegations in its petition that the California Pacific Railroad Company 'has no right, title, or interest in or to the property therein sought to be condemned,' and that the defendant Southern Pacific Company 'has a substantial and material interest in the property described in the complaint. ' It is not a case, then, of two defendants claiming separate and distinct interests in different parcels of property, but where the two defendants are asserting title to one and the same property. This being so, no separable controversy is made to appear.

Upon the theory upon which the action proceeds, each of the two defendants named is under the statute of the state a necessary party to the proceedings; and, as stated by Mr. Moon, in an action against several defendants

'to appropriate a single tract of land the controversy between the plaintiff and one defendant is not separable from that between the plaintiff and any other defendant. ' Removal of Causes, Sec. 144.

In this respect it can make no difference that the action may turn out to have been brought upon an erroneous theory and that plaintiff may on the trial fail to sustain his cause of action as laid. The truth of the facts as above stated cannot be tried in this proceeding. The court is circumscribed by the record before it, and the plaintiff has the right to proceed upon the theory outlined in his complaint, notwithstanding that theory may prove erroneous.

In Alabama G.S. Ry. Co. v. Thompson, supra, where plaintiff had sued two defendants jointly upon what was contended to be an erroneous theory, the court, after a review of all the authorities on the subject, say:

Page 335.

'Does this become a separable controversy within the meaning of the act of Congress because the plaintiff has misconceived his cause of action and had no right to prosecute the defendants jointly? We think, in the light of the adjudications above cited from this court, it does not. Upon the face of the complaint, the only pleading filed in the case, the action is joint. It may be that the state court will hold it not to be so. It may be, which we are not called upon to decide now, that this court would so determine if the matter shall be presented in a case of which it has jurisdiction. But this does not change the character of the action which the plaintiff has seen fit to bring, nor change an alleged joint cause of action into a separable controversy for the purpose of removal. The case cannot be removed, unless it is one which presents a separable controversy wholly between citizens of different states. In determining this question the law looks to the case made in the pleadings, and determines whether the state court shall be required to surrender its jurisdiction to the federal court.'

Under the principles thus obtaining it can make no difference to the rights of the parties on this motion if it be true, as asserted at the argument, that since the action was commenced the entire title to this property has passed by deed from the successor of the California Pacific Railroad Company to the defendant Southern Pacific Company. That fact may affect the eventual rights of the parties to the action, but it adds nothing to the record which may be considered here.

It may be added that, should the case upon going back assume a different aspect by amendment of the pleadings or otherwise, so as to present for the first time a cause for removal by the defendant now seeking it, it will not then be too late to assert that right. Bagenas v. Southern Pacific Co. (C.C.) 180 F. 887, and cases there cited. As the case now stands, the right of removal does not exist.

The motion to remand will be granted.