Page:Federal Reporter, 1st Series, Volume 10.djvu/516

504 FEDERAL REPORTER. �that no such necessity exista, and asks tins court to so adjudge, and to restrain the defendant from resorting to other legal proceedings to eompel a right to make said crossing. And in argument of its coun- sel I am referred to cases in 43 and 66 New York Eeports, where the court determined that the property in those cases sought to be con- demned was not necessary to be devoted to the use of the companies seeking the condamnation. These cases repose on the language of the New York statute, and, besides this, are cases in the state courts, where, if at all, the right to enforce or refuse such claims to expro- priation muet, in my opinion, reside. When the right of way over private property, or the right of crossing an established public high- way, has been acquired and fixed by the acts of the competent parties, either voluntarily contracting or judicially constrained to consent, then certain common rights attach to this new acquisition of right, and these common rights may be considered by and protected and en- forced by this court in any case where the character of the parties brings the case within the juriadiction of this court. But until this right of way is thus fixed the claim to it is so far in derogation of common right as to require full compliance with all the regulations of the law under which it claimed, including a resort to the particular tribunals by that law set for passing upon such claims and fixing such rights. If the circuit court of the United States can restrain parties from attempting to secure a right of way by process of con- demnation under the state laws, could these courts not as well enter- tain and conduct the proceedings for such eondemnation wherever such a party as this complainant was seeking to condemn, and the the adverse party was a citizen of Texas ? �In accordanee with the foregoing views a temporary injunction will be ordered, but it will not restrain the defendant from attempting to compel by law a right to cross complainant' s tracks and right of way. �Note. For the purposes o£ juriscHction a corporation is conclasively con- sideree! a citizen of the state which created it, and under whose laws it was organized, and not of that state under whose laws it has entered to operate its Une of railway in connection with another line. Williams y. Missouri-, K. &• T. R. Co. 3 Dill. 267. See Baltimore & 0. R. Co. v. Cary, 28 Ohio St. 208; County of Allegheny v. Cleceland & P. R. Co. 51 Pa. St. 228. �If, however, the effect of the legislation be to adopt the corporation, it be- comes, for the purposes of jurisdiction, a corporation created by the state adopting it. Uphoff v. Chieago, St. L. & N. O. R. Co. 5 FED. Kep. 545. And see O. e W. I. R. Co. v. i. S. & M. S. R. Co. 5 Fed. Kep. 19, and Johnson v. PMladelpMa, W. & B. R. Co. 9 Fed. Rep. 6.— [Ed. ��� �