Citations
- 9 F.2d 213
Full opinion text
VAN VALKENBURGH, Circuit Judge.
Appellant, since May 15, 1915, has been and now is the owner in fee simple of parts of lots 490 and 491 in block No. 37 of McGee’s addition to Kansas City., Mo., at the southeast corner of Main and Nineteenth streets in said city. Said tract has a frontage of 57 feet and 8 inches on the east line of Main street and of 62 feet on the south lino of Nineteenth street.
The Kansas City Railways Company is now, and since September 9, 1920, has been, in the hands of receivers duly appointed by the District Court for the Western District of Missouri, and said receivers have and maintain upon the surface of said streets and in front of appellant’s said tract of land street railway tracks, and a switch to and from each of the four street railway tracks in said streets, and the intersection thereof, which said switch connects these tracks with the other street railway tracks of the Kansas City Railways Company in and beyond said city.
March 28, 1923, appellant filed in the District Court of the United States for the Western District of Missouri, in which said receivership is pending, an application for leave to sue the Railways Company and its receivers in the circuit court of Jackson county, Mo., upon any or all of the following stated causes of action:
“(1) A cause of action under section 1970 of the 1919 Revised Missouri Statutes, to have judicially ascertained and determined the right, title, interest and estate of petitioner and said Railways Company and receivers, respectively, in, to, and upon the said parts of Main street, Nineteenth street, and the intersection of said streets, and also to have the court define and adjudge by its judgment or decree the right, title, interest, and estate, and all claims of petitioner and said Railways Company and receivers in, to, or upon the said parts of said streets, and also to an award of full relief thereon;
“(2) A cause of action for damages sustained by petitioner from said alleged trespasses of said Railway Company and said receivers upon said parts of said streets and the intersection of said streets; and
“(3) A cause of action for 'a suit in ejectment against said Railways Company and said receivers for possession of said parts of said Main street and Nineteenth street and the intersection thereof.”
Appellant, in his application aforesaid, alleges that the Railways Company and its receivers have had, and now have, no right, titlp, interest, or estate in, to, and upon the above-described parts of Nineteenth and Main streets, or of the intersection thereof, and that they are trespassers thereon; that, by maintaining the^ switch connecting said tracks and the poles and wires necessary to operation, they have deprived petitioner of ingress to and egress from his ellant has a just claim, whether in the nature of lien or otherwise, it may be judicially determined in the hearing which has been tendered, and which alone is appropriate in the situation presented.
But appellant insists that section 66 of the Judicial Code (Comp. St. § 1048) allows him to bring his action in the slate court without such permission first being- sought and obtained. That section reads as follows:
“Every receiver or manager of any property appointed by any court of the United States may be sued in respect .of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such manager or receiver was appointed so far as the same may be necessary to the ends of justice.”
It is evident that appellant misconceives the scope and purpose of that act as interpreted and applied uniformly by the courts. As said in Dickinson v. Willis (D. C.) 239 F. 171;
“The line must be drawn between those cases which seek to recover a judgment against the receiver in the nature of damages and those cases which involve the possession of the property in the hands of the receiver, or the use of such property or the management thereof — the administration of the property in his hands. . As to questions of possession, use, and management, I am satisfied that the appointing court, whether it be state or federal, has exclusive jurisdiction.”
And in the former appeal this court said that section 66 of the Judicial Code “is not applicable to suits brought to establish adverse right, title, or interest to property in custody of receiver.” The statute was not intended to embrace within its terms suits which seek to establish such rights to property in such custody, and which go to the jurisdiction and title of the court which appointed that receiver, but only to such rights of action as arise from acts of the receiver himself, or'may be imputed to Mm after his custody has attached. Of the latter class actions for personal injuries against receivers operating common carriers are familiar examples. Buckhannon & N. R. Co. v. Davis, 135 F. 707, 68 C. C. A. 345; White v. Ewing, 159 U. S. 36, 15 S. Ct. 1018, 40 L. Ed. 67; Investment Registry v. C. & M. Electric Ry. Co. (D. C.) 204 F. 500.
Mere continuous administration of property unden order of court does not constitute an “act” or “transaction” on the part of the receiver within the meaning of section 66 of the Judicial Code. TMs, as well as other points advanced, were so thoroughly considered and determined in the former appeal that further elaboration would be superfluous. The order of the court below was issued in the exercise of a sound discretion, in harmony with established principles of equity, and preserves'to appellant all rights to which he is entitled.
It is accordingly affirmed