
    OLD COLONY TRUST CO. v. ATLANTA RY. CO. et al.
    (Circuit Court, N. D. Georgia.
    January 6, 1899.)
    No. 1,061.
    Jurisdiction op Federal Courts — Diversity op Citizenship — Rearrangement op Parties.
    To a suit by a mortgagee of a street-railroad company to enjoin another street-railroad company from condemning the right to use a portion of the mortgagor’s track, the mortgagor company is an indispensable party, and, as its interests necessarily range it on the side of the complainant, it will be so placed by the court for jurisdictional purposes, although it is made a defendant by the pleadings; and, where it is a corporation of the same state as its co-defondant, a. federal court is without jurisdiction on the ground of diversity of citizenship.
    
    In Equity.
    Suit for injunction.
    N. ,1. & T. A. Hammond, for Old Colony Trust Oo.
    Goodwin, Westmoreland & Hallman, for Atlanta Consol. St. Ry. Co.
    King & Spalding, for Atlanta Ry. Oo.
    
      
       As to diverse citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249, and Mason v. Dullagham, 27 C. C. A. 298.
    
   KEWMAK, District Judge (orally).

In 'this case my opinion is so well settled, and my convictions are so positive, on one phase of it, that, in view of the public interests involved, it will not be well for me to delay the case by taking the papers and going further into it. It will he unnecessary, because there is no probability of any change in my views. Under the act of 1875, as adopted by the act of 1887 and 1888, the court was required for itself, notwithstanding the arbitrary arrangement 'of the parties by the pleader in suits brought in this court, to rearrange the parties as to their respective interests, and to fix them on the side of the controversy on which they belong. If all of the parties in this arrangement on one side are not citizens of different states from all the parties on the other side, the jurisdiction fails. This suit is brought by the Old Colony Trust Company against the Atlanta Railway Company and the Consolidated Street-Railway Company to enjoin the former company from enforcing a right which it sa'ys it obtained by an ordinance of the city to condemn a certain portion of the track of the Consolidated Street-Railway Company, which the city had authorized it under a certain reservation to do; that is, to allow the new company to nse a certain part of the track of the old company under certain circumstances. The hill seeks to prevent the new company from proceeding to condemn the track of the old company,' — -to obtain the right to use it. How, upon the filing of the bill against the two street-railway companies, the Consolidated Street-Railway Company came into court by cross bill, but adopted all of the allegations of the hill of the Old Colony Trust Company, and arranged itself by all the pleadings on the side of the litigation with the trust company. The pleadings put it there necessarily; its interests are there very clearly; the whole countenance of ike case puls the Consolida twl Street-Bail way Company on the same .side with the trust company in this litigation, as to tlie right of the Atlanta Railway Company (the new company) to use the part of the Consolidated’s tracks in.question. So I think there can he no question here that it is not only the duty of the court, hut it is its imperative duty, under the law, to put the Consolidated Street-Railway Company on the side witli the complainant; and it being a citizen of Georgia, and the defendant the Atlanta Railway Company being a, citizen of Georgia, necessarily the jurisdiction fails. There can be no escape from this conclusion.

It. is well understood that this court, however, will not oust its own jurisdiction- — will not defeat its own jurisdiction — unless it is met squarely with a state of facts which requires ii; that is, where litigation is brought into court, the court will not seek to rid itself of hearing the case, if ii finds that, by dispensing with certain parties, it can relieve the existing situation, and have only proper parties before the court on (he question of diverse citizenship. The question then arises here, on the suggestion of counsel, whether or not the (’onsolidated Company is an indispensable parly to this litigation. If it is not, of course the court, under the rule and practice just suggested, would dismiss It from the litigation, and leave the case cognizable in the circuit court. Xow, the subject-matter of this controversy — the real controversy in the case — is the right of the new company (the Atlanta Railway Company) to use a certain part of the track of the old company'. That is a right which the new company is asserting against the old company, and tlie trust company comes in and say's: “We ask the court to enjoin the new company from asserting this right, on the ground that there is no legislative authority for such a right; that the city of Atlanta cannot exercise it, and the Atlanta Railway Company cannot exercise it.” The question is whether the new company has this right against the old company, — the right to use the track of the old company, the Consolidated Street-Railway' Company. Now, can this litigation be settled without the presence of the old,company? Will the court undertake to decree that A. has a right against 15. at the instance of C., without having I». before it? That- is what: it is asked to do here. It is asked to say that the Atlanta Railway Company can go upon the tracks of {lie Consolidated Company, and use its tracks in certain important respects, which have been discussed, in certain ways, and to do certain things,.-¡and we are asked to determine that issue as against (lie Consolidated Company without "having the Consolidated Company before tlie court. I think that, even under the authorities read by distinguished counsel for the trust: company and the rule announced in those cases, the old company' is an indispensable party. 15y the case of Shields v. Barrow, 17 How. 130, 15 L. Ed. 158, referred to (one of the first cases on the subject), I think the Consolidated would be a necessary party in order to dispose of the issue — the controversy — here. In my judgment, it is absolutely necessary to have the Consolidated before the court in order to determine and fully dispose of the issues presented in this case, in that view, there is but one course for tlie court to pursue, and that is to dismiss this litigation from the court for want of jurisdiction on account of the citizenship of the parties; this without prejudice to the rights of the parties in the case.  