Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
ALSCHULER, Circuit Judge.
The appeal is from a decree of the District Court denying appellants' motion for a preliminary injunction and directing that the bill be "dismissed for want of jurisdiction and for noncompliance with equity rules of this court."
To the best of our understanding the bill charges that appellees, who are officials of the state of Illinois and of the city of Chicago, are threatening to fill up a navigable stream which is wholly within the limits of the city of Chicago, and bordering on which appellants have a piece of real estate which will thereby be injured.
What we term the "bill," is on its face termed the "Second Amendment of the Original Bill Filed on the 29th Day of June, 1927." But it is in fact an amended bill. Certain officers of the city filed a motion to dismiss the bill on the ground that it does not state a cause of action within the jurisdiction of the court.
In the absence of specification by the court of the rule or rules transgressed, we seek it in appellees' brief, and find it there stated to be Supreme Court Equity Rules 25, 21, and 28 (28 USCA § 723), and District Court Rules 13 and 19.
Rule 25 requires that bills in equity contain a short plain statement of the grounds of the court's jurisdiction, and short simple statement of the facts on which relief is sought, omitting statement of evidence. We shall hereinafter consider the matter of jurisdictional grounds, as stated in the bill. The facts of the bill do not appear to us to be stated with undue prolixity. Their sufficiency to support the prayer of the bill is another matter. Rule 21 provides that the court may on its own motion strike out redundant, impertinent, or scandalous matter. This has no bearing, as the court did not act on it. Rule 28 provides that plaintiff may amend his bill on leave of court, and it is complained that, while leave was given to amend the bill, plaintiffs filed an entirely new bill. This shows no violation of that rule. At any rate there was no motion to strike the new bill for that cause. Rule 13 of the District Court prescribes that amendments must be made on separate paper unless otherwise ordered by the court. This rule was not transgressed by embodying the amendments in an entirely separate instrument constituting a complete new bill. Rule 19 requires that chancery pleadings be printed before the cause is heard by the court. The record does not disclose whether or not this bill was printed, and we cannot assume that the rule was not observed.
It is quite unlikely that on any such grounds alone the court would have ordered dismissal of the bill without first giving opportunity for compliance with the rules, if transgressed.
The question of want of federal jurisdiction appearing on the face of the bill involves consideration of some details. Appellants contend that federal jurisdiction is shown, first, by the allegation of diversity of citizenship of the parties, and the controversy involving more than $3,000; second, irrespective of diversity of citizenship, through the controversy being one respecting navigable waters of the United States over which the United States has jurisdiction; and, third, transgression of appellants' federal constitutional rights in the alleged undertaking to deprive them of their property without just compensation.
As to the citizenship, it appears from the bill that of the two plaintiffs alleged to be the owners in fee simple of the property in question, one resides in California and the other in Illinois. Where jurisdiction depends on diversity of citizenship, it is the general rule that, where one or more of several plaintiffs resides in the same state with the defendants, the necessary diversity of citizenship for federal jurisdiction does not appear. Ouachita & M.R. Packett Co. v. Aiken et al. (C.C.) 16 F. 890, affirmed 121 U.S. 444, 7 S. Ct. 907, 30 L. Ed. 976; Danks v. Gordon et al., 272 F. 821 (2 C.C.A.); De Hanas et al. v. Cortez-King Brand Mines Co. et al., 26 F.2d 233 (8 C.C.A.).
While the bill does not disclose the precise nature of the several appellants' interest in the property, we will assume them to be tenants in common. It has been held that, where the interest of the nonresident plaintiffs is severable, so that they alone may maintain the action, the court may dismiss resident plaintiffs and thus preserve its jurisdiction in that respect. Whittle et al. v. Artis et al. (C.C.) 55 F. 919; Mason v. Dullagham, 82 F. 689 (7 C.C.A.). But this was not done. In face of the challenge of the court's jurisdiction, the cause proceeded to final order with both plaintiffs remaining in the action, and we do not perceive where the court erred in finding against its jurisdiction upon this ground alone.
Again, the bill nowhere alleges what is the amount in controversy. True, this may be shown by the pleadings and papers in the case other than the bill, or by the evidence itself. Robinson v. Suburban Brick Co. (C.C.A.) 127 F. 804; Lee Line Steamers v. Robinson (C.C.A.) 232 F. 417; United States v. Trans-Missouri Freight Association, 166 U.S. 290, 17 S. Ct. 540, 41 L. Ed 1007. But somewhere and somehow it must appear. In appellants' motion for preliminary injunction it was stated that the land is worth many times the jurisdictional amount of $3,000. This may well be true, and yet the value of the riparian rights, or the damage to the land by reason of filling up the stream, may be very little. Because of allegations in the bill that one time some boats ran on this water, and that railroads, stockyards, and factories are in the vicinity of the plaintiffs' land, we cannot judicially assume that plaintiffs' damage through the filling would be in excess of $3,000, nor indeed that the land will be damaged at all. From such allegations it cannot be assumed that the amount in controversy exceeds $3,000, any more than it may be concluded from statements of the opposing parties that this little stream, popularly known as "Bubbly creek," is a distinct detriment to the property abutting upon it, which would be greatly enhanced in value if the stream were filled.
Appellants contend that federal jurisdiction is found in the alleged fact that the stream is navigable water of the United ...