WILLSON et al. v. WINCHESTER & P. R. CO. et al., 99 F. 642

WADDILL, District Judge, after stating the facts as above, delivered the opinion of the court. The assignments of error are that the court erred in refusing to, remand the cause to the state court, because the application for removal was not made in time; and .also because the Winchester & Potomac Railroad Company, against which relief was asked, was a corporation of West Virginia, in which'state appellants,resided, and removal ought not, therefore, to have been made; and, third, because the court sustained the demurrer to the bill and dismissed the same.

The removal from the state to the federal court seems to have been seasonably and properly made, and it is unnecessary, with the view we take of the case, to determine whether the Winchester & Potomac Railroad Company, a corporation chartered by the legislature of Virginia, has been made a West Virginia corporation by the laws of the latter state, or merely licensed to do business therein.

The Baltimore & Ohio Railroad Company, as lessee of the Winchester & Potomac Railroad Company, is the defendant against whom relief is substantially asked, and that corporation has frequently been held to be a citizen of the state .of Maryland,- and not of the state of West Virginia. Hence the case was one properly removable into the federal court. Railroad Co. v. Harris, 12 Wall. 65, 20 L. Ed. 354; Martin v. Railroad Co., 151 U. S. 684, 14 Sup. Ct. 533, 38 L. Ed. 311, and cases there cited.

Upon the merits of the case, it will be observed that the decree of the lower court dismisses the appellants’ bill without prejudice to them to enforce any demand they might have against the appellees by action at law. The questions involved in considering the demurrer to the appellants’ bill in this cause, and in determining the rights of the appellants under the contract or deed aforesaid, set out in their bill, have recently been under review both by the supreme court of the United States and by the circuit court of appeals for the Fifth circuit. Railway Co. v. Marshall, 136 U. S. 393, 10 Sup. Ct. 846, 34 L.

Ed. 385; Same v. Scott, 41 U. S. App. 624, 23 C. C. A. 424, 77 Fed. 726, subsequently reported, on second appeal, in 36 C. C. A. 282, 94 Fed. 341.

The principles enunciated in these two cases are in effect that, under a contract like the one under- consideration; the obligation to build and maintain the depot is discharged by its being once built and used and operated for the purposes for which it was intended, and that there is no continuing liability to keep and maintain the same, or any right of recovery for failure to do soi We do not feel called upon, however, to decide in this case whether the appellants will be denied all remedy under their contract or not, as it seems quite clear that the relief asked cannot he afforded in a court of equity, and that their remedy, if any they have, is in a court of law.

This specific question was determined in the case of Railway Co. v. Marshall, supra. In that case,, under a contract more favorable to appellants’ view than the one sued on here, for there the word “permanent” was used in connection with the establishment of the terminus and shops of the railroad company at the city of Marshall, Tex., Mr.

Justice Miller, in speaking for thq court, held that it could not be supposed that the parties intended to covenant to build and rebuild, and never to change, any of its, offices or the place of manufacturing cars or other machinery for the use of the company, nor that it would forever keep up for the town of Marshall this establishment when once organized; and, in discussing the question of the right to proceed in equity, the learned justice said: “But we are further of opinion that, if the contract is to be construed as appellant insists it should be construed, it is not one to be enforced in equity.” Page 405, 186 U.

S., page 849, 10 Sup. Ct., and page 890, 34 L. Ed. And, after a review of the authorities at page 407, further stated: “Without more minute examination of the authorities on this subject, we are of opinion that the plaintiff is not entitled to any relief in a court of equity.” The circuit court of appeals for the Fifth circuit, in Railway Co. v. Scott, supra, following Same v. Marshall, supra, reached the same conclusion, and held that the defendant company was not liable in damages for removal of its depot to some other place.

The facts in this latter case are substantially the same as in this case. ] The fact that under the contract sued on the appellants claim the right to receive certain commissions and depot charges, and that in their bill they ask for an account, showing the revenues, from the depot, does not materially affect this case, as it is admitted that no depot has been maintained under their contract at the place therein provided for, during- the period covered by this suit, and it does not follow that an accounting of the revenues at another depot, at some other place maintained by the company, would throw any material light upon the damages claimed for breach of this contract, and which damages can be more readily determined in a court of law by a jury than in this forum.

It may be further remarked that no sufficient reason is given for. the great lapse of time that took place between thebreach of this contract and the institution of this suit. From March, 3875, until the institution of this suit, on the 27th of October, 1893, covers a period of nearly 19 years; and if it be contended that the time covered by the common-law suit, which is*still pending, should not be computed in this estimate, then some 13 years have elapsed during which time this suit could have been instituted.

Under the familiar principle of equity, this suit for the specific performance of the contract sued on cannot be maintained, and the decree of the lower court dismissing the appellants’ bill, without prejudice to maintain any appropriate action at law of which they may be advised, is hereby affirmed.