Opinion
No. 205.
April 15, 1929.
Appeal from the District Court of the United States for the Southern District of New York.
Suit by the Knickerbocker Ice Company against Ernest W. Hofstatter and others. From a decree dismissing the action, plaintiff appeals. Reversed.
The plaintiff, a New Jersey corporation, brought its bill in equity in the District Court for the Southern District of New York against 12 defendants, to secure a temporary and perpetual injunction restraining them from committing threatened repeated trespasses upon a narrow strip of land lying in the town of Clarkstown, county of Rockland, New York. The suit originally was against part of them as officials, some of the town and some of the county above named, but by stipulation, dated July 19, 1927, it was discontinued as to all sued in their official capacity, and thereafter was prosecuted against the defendants as individuals only.
The bill alleged that the plaintiff owned the fee of the land, together with that of a larger parcel of which it was a part, and that it had, with its predecessors in title, been in continuous peaceable possession of the strip for more than 50 years; that the defendants were all residents of the Southern district of New York; that the jurisdictional amount was involved; that the land was bounded on the southerly side by a public highway, laid out and established in 1845; that the defendants, or some of them, entered upon said land on the 27th day of April, 1927, and damaged and tore down, under the claim that it was in a public highway, parts of an iron fence being built thereon; that the defendants threatened to commit repeated trespasses on the land, to exclude the plaintiff from it, to prevent further construction of the fence, to tear down the remaining portions of it, and to throw the land open to the public.
The defendants answered, admitting the acts done and threatened to be done as alleged by the plaintiff, except that they denied that such acts were, or would be, trespasses. They alleged that the land was, and for more than 50 years had been, within the limits of a public highway, known as Highland avenue, authorized by chapter 670 of the Laws of New York of 1871, and laid out and constructed by virtue of that and subsequent legislative authority; that all the requirements of law to establish said highway had been complied with; that in addition to this the public, by long use over a period of more than 50 years, had gained by prescription the right to have access to the waters of Rockland Lake at the point where the fence was being erected; and that the fence was a nuisance and an obstruction to this right and to the highway. The defendants asked that the rights of the public in the land be determined and decreed, and that the plaintiff be perpetually enjoined from erecting the fence or any other obstruction within the highway limits.
At the hearing the defendants conceded that the plaintiff held the record title in fee to the disputed land. It appeared that Highland avenue, as authorized, covered the land, but that, as it was actually constructed, it covered no part of it, for the highway of 1845 was left at its original width at this place. There was no direct evidence that any damages had been awarded or paid for the land. It further appeared that the public, for many years, while horse-drawn vehicles were more common, had been accustomed to drive across the strip at will to water horses and wet wagon wheels in the lake, all without protest on the part of the plaintiff or its predecessors in title. The last such public use of the land shown with any certainty whatever was some time in the year 1894, and there was undisputed evidence that a very old cedar or chestnut fence has been standing for a long time at the southerly side of the strip bordering the road.
It also appeared that, before the acts of the defendants which gave rise to this suit, the plaintiff had had some correspondence with one Rabenold, a resident of New York, looking toward the purchase by Rabenold of a large tract of land around Rockland Lake, including the disputed strip, and that, although no formal contract of purchase had been executed, these negotiations had progressed to the point where the purchase price had been agreed upon, subject to the ability of the plaintiff to give a satisfactory title; that part of the purchase price had been paid, and that, with the consent of the plaintiff, Rabenold, or persons acting under him, had taken possession of the disputed strip and were engaged in erecting the fence, when some parts of it were taken down.
The defendants did not plead to the jurisdiction. Instead, they moved to dismiss for want of jurisdiction, on the grounds (1) that Rabenold was a necessary party plaintiff, whose joinder would destroy diversity of citizenship; and (2) that the amount in controversy was insufficient. The motion was denied on both grounds. After hearing the evidence of both parties, the court, being of the opinion that neither had shown title to the property sufficient to warrant the relief sought, dismissed without prejudice both the bill and the answer, in so far as it amounted to a cross-bill. The plaintiff appealed.
Dunnington, Walker Gregg, of New York City (Allan R. Campbell, of White Plains, N.Y., and Herbert Plaut, of New York City, of counsel), for appellant.
J. Du Pratt White, of New York City (White Case, of New York City, of counsel), for appellees.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
The trial court was right in denying the motion to dismiss for want of jurisdiction. Rabenold was not a vendee. What is said concerning a vendee in New Mexico v. Lane, 243 U.S. 52-58, 37 S. Ct. 348, 61 L. Ed. 588, does not apply here. At most, Rabenold was only a prospective vendee, who was affected by this suit only in that its decision might influence his decision to buy or not to buy. This action involves what rights Rabenold may be able to get from the plaintiff, rather than any he has now, except those of a tenant at will. It is not enough to require his joinder that he may be a proper party, or even what is known as a necessary party. Nelson v. Hebert (C.C.A.) 296 F. 445. He must be an indispensable party. Cameron v. M'Roberts, 3 Wheat. 591, 4 L. Ed. 467; Mallow et al. v. Hinde, 12 Wheat. 194-197, 6 L. Ed. 599; Shields et al. v. Barrow, 17 How. 130, 15 L. Ed. 158.
On the second ground of the motion we need only notice that the jurisdictional amount was alleged, and not attacked by the pleadings. A prima facie case for jurisdiction was thereby made out. Hill v. Walker (C.C.A.) 167 F. 241; Hunt v. New York Cotton Exchange, 205 U.S. 322, 27 S. Ct. 529, 51 L. Ed. 821; Auto Acetylene Co. v. Prest-O-Lite Co. (C.C.A.) 276 F. 537. It was, nevertheless, the duty of the court to dismiss, with or without motion, if the evidence showed to a legal certainty that the amount in controversy was not sufficient. Wetmore v. Rymer, 169 U.S. 115-128, 18 S. Ct. 293, 42 L. Ed. 682, Put-In-Bay Waterworks Co. v. Ryan, 181 U.S. 409-431, 21 S. Ct. 709, 45 L. Ed. 927. But the evidence did not show it.
On the merits the plaintiff, with its conceded title in fee and proof of continuous possession by itself and its predecessors for upwards of 50 years, was entitled to protection against the threatened repeated invasion of its land, unless the defendants were clothed with superior public rights, gained by eminent domain or by prescription, and not lost since acquired.
In view of the New York statute to which attention will be called, it seems idle to consider whether the public ever had the easement claimed. It is, perhaps, enough to say that the evidence relied upon was not very strong. However that may be, this intended addition to the existing highway was never opened and worked, and no crossing by the public since 1894 was shown.
Section 234 of the Highway Law of New York (Consol. Laws, c. 25) provides in part as follows:
"Sec. 234. Highways abandoned. Every highway that shall not have been opened and worked within six years from the time it shall have been dedicated to the use of the public, or laid out, shall cease to be a highway; * * * and every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway, and every public right of way that shall not have been used for said period shall be deemed abandoned as a right of way."
Under this statute, the claimed easement, whether acquired in one way or the other, if acquired at all, has been abandoned, and serves as no justification for the past and threatened acts of these defendants. It makes no difference in the application of the abandonment statute that the land trespassed upon lies adjacent to the public highway of 1845, and that its use to widen that road was once contemplated. In re City of New York, 164 App. Div. 839, 150 N.Y.S. 256. See, also, New York Cent. Hudson River R.R. Co. v. City of Buffalo, 200 N.Y. 113-119, 93 N.E. 520.
We are not dealing with an encroachment upon a highway once opened and worked, as in Mangam v. Village of Sing Sing, 26 App. Div. 464, 50 N.Y.S. 647. Nor have we the situation which obtained in Walker v. Caywood, 31 N.Y. 51, where a highway was opened and worked for its full length, but not in all places for its full width. Here, at most, there was never more than an after-acquired easement in additional land beside an existing highway.
Decree reversed.