Bluefield Waterworks & Imp. Co. v. Sanders , 11 C.C.A. 232 ( 1894 )

HUGHES, District Judge.

The question which presented itself at the threshold of this litigation was the vital one whether the circuit court of Tazewell county had jurisdiction of the suit, and especially of the defendants -to the bill of complaint that was ex-MTbiied in the cause. The defendants were nonresidents of ¡.lie county of Tazewell and of the state of Virginia. They were residents of the adjoining county of Mercer, in the state of West Virginia, and citizens of that state. The original motion against them was made ex parte, and without notice. The process served on them was issued out of the office of the clerk of Tazewell county, and was served by a deputy of the sheriff of that county. It was served, as they believed and contended, on the territory of West: Virginia, and beyond the limits of Tazewell county and of Virginia. They deny their liability to be sued in Virginia for the cause of action mentioned in the bill of injunction originating this suit. They deny the validity of the process which was issued against them, and which it was their first act in the suit to move to quash. They deny the validity of the service which was made upon them of this process. At every stage of the suit below, they made constant protest against the jurisdiction of the courts before whom they were brought to entertain jurisdiction against them in a state and county in which they were not residents.

It is a high privilege of the citizen of the United States to he sued in the jurisdiction in which he resides, in personal actions. He may, by his own act, waive this privilege. He may enter into a contract, or do an act, in another jurisdiction, which, if it constitute a cause of action against him, will render him liable to- be sued where the cause of action arose, if he go voluntarily there, and process be served upon him while there. In special cases, if he own lands or property or dioses in action in another jurisdiction, and be under obligation to a citizen there, he may he sued there in respect to that property on that obligation, whether he go there; or not; but in such case's the manner of notifying him of the suit and bringing Mm into court is carefully defined by statute, ihe provisions of which are required to be strictly and fully complied with. If a nonresident be unwittingly in a jurisdiction in which he; is nonresident, and be served with process while; ignorantly anel unintentionally there, the courts will severely scrutinize ihe; process itself and the circumstances under which it was issued and served in contravention of his natural right to be sued at home. Applicable' to such a case is the remark of the e-hie'f justice of the; United States in Fitzgerald & Mallory Const. Co. v. Fitzgerald, 137 U.S 105, 11 Sup. Ct.36:

“If a person is induced by false representations pie might have added “by erroneous belief”] to come within the jurisdiction of a court, for the purpose of obtaining service of a process upon him, and process is there served, it is such an abuse that the court will, on motion, set the process aside.”

Of course, this remark applies to nonresident corporations as fully as to natural persons. In the same case as the one quoted, the chief justice said:

“Nor are we impressed with the tenability of plaintiff's position in relation to the service [of process] in any view. Whore a foreign corporation is not doing business in a state, and the president or any officer is not there transacting business for the corporation, and representing it in the state, it cannot be said that the corporation is within the state, so that service can be made upon it.” ,

In the case at bar, a corporation of West Virginia was laying pipes and constructing waterworks on ground most of which was concededly in West Virginia, and all of which the corporation and its agents believed to be so. Only a few feet of this ground were claimed by the plaintiff to be in Virginia, and this claim was denied by the appellant company and its agents. But, . on the chance that some of the agents of the company might be caught on this diminutive space of territory when process should be served upon them, and on the contention that, if any work were done on this small area by the agents of the appellant company, it would bring the company within the meaning of the law of Virginia permitting corporations “doing business” in Virginia to be sued in the courts of the state, the appellee brought this suit in the Virginia court, instead of doing so in West Virginia. Certainly will the law, under circumstances like these, hesitate to violate the privilege which the citizen has of being sued in the jurisdiction of his residence, and be disposed to look with earnest scrutiny into the steps taken jn the institution of a suit invading this privilege.

Sections 3225-3227 of the Code of Virginia relate to the manner in which suits may be commenced against corporations, defining the officers or persons on whom mesne process may be served in various circumstances and contingencies and the manner of service. Whatever may have been the contention of appellee's counsel in the court below in respect to the bearing of these sections upon the service of the process which was made in this suit, they now declare, in the brief presented to this court, that “these sections have not the slightest application to this case.” Whatever may have been the contention in the court below of the same counsel as to the effect in this case of the order of publication set out at page 10 of the record, they now declare in the brief filed in this court, that “it is not a legal process.” ' The mesne process which was taken out by appellee in this suit, and the service which was made of it, is valid, therefore, if valid at all, only by virtue of sections 1104 and 1105 of the Code of Virginia. Section 1104 requires every incorporated company doing business in the state to have an office within the state for the transaction of all its business; and, if it be a company incorporated by another state, to have also an agent in this state empowered 'to receive service in suits and to enter appearances for it in courts. Section 1105 declares that the “officers, agents, and employees of any such company doing business in this state without complying with the provisions of the preceding section, shall be personally liable to any resident of the state having a claim against the company, and, moreover, service of process upon either of said officers, agents, or employees, shall be deemed a sufficient service on the company.” Our inquiry, therefore, in this case, is limited to two questions, namely, whether the service of process which was made upon the persons of sundry agents of the appellant company as shown by the record was made in the county of Tazewell, and whether the appellant company was “doing business” in the state of Virginia. The return of the deputy sheriff of Tazewell coimty shows expressly ,as to some of the persons served and impliedly as to all, that the process was served on them “on the premises of the appellant company.” ' If these “premises,” therefore, were not in Tazewell county, the process was not legally served; and we are, in that case, relegated to the inquiry whether the premises were in Virginia or West Virginia. We have the same question to deal with in the inquiry whether the appellant company was “doing business” in Virginia, which is only another form of the question whether the “premises” on which it was operating were in Virginia or West Virginia.

An inspection of the plat of the three surveyors, Hall, Harman, and Hale, which has been described above in the statement of the facts of this case, shows that the Beaver Pond spring is hud down on it as one of the “'natural objects” which they were required by law to mark and designate on the plat. It is also obvious from (he plat that this spring is laid down on it as upon the Mercer side of the boundary line between Mercer and Tazewell counties; that, is to say, as upon the West Virginia side of the boundary line between Virginia and West Virginia. If, therefore, in the language of the act of 1845, the plat of the three county surveyors he “conclusive in all controversies which may arise touching said line,” then the question is closed. Under the law, this court and all courts are hound to hold that the Beaver Pond spring is in Mercer county and in West Virginia, and that any line run by any other person or persons than the surveyors of those counties throwing this spring into Virginia is illegal and spurious as to that spring. The court below, however,—that is to say, the circuit court of the United States for the western district of Virginia,—treated the plat as inconclusive, and early in the litigation under consideration made the decree which has been mentioned, directing W. M. Dunlap, a. civil engineer, to run and ascertain the line between the counties of Tazewell and Mercer as run and marked by the three surveyors, Hall, Hannan, and Hale, but directed it to be run “as shown by the report and plat of said late surveyors.” This engineer proceeded to act under the decree. Under the language of that mandate, he was charged simply with the task of processioning the line already run and marked by the three surveyors. He failed to do this. He mistook his errand. His report shows that he found the line which had been ran and marked by the original surveyors to be more or less crooked, and that he ran a line himself as a substitute for and improvement on the original one. He discarded the' devious, swerving line of the original surveyors, and made and reported a different and scientific one of his own running and marking. The language of Ms report shows that he misconceived the meaning and object of the decree under which he was acting, and that, in making a new line, he did the very thing which the court did not and could not order to be done. The law of the land made the line of Hall, Harman, and Hale, however crooked, the true line, and the plat marking and mapping it, with sundry adjacent natural objects, conclusive of its location, and of the location of the natural objects laid down upon it, the Beaver Pond spring among others. With interesting naiveté, Mr. Dunlap declares that he found this, official line to Tbe an awkward job of work. He therefore undertook to substitute in lieu of it another line, more satisfactory and comely, and strictly straight and scientific. The language of his report on this subject is. now given, the italics not being his. Beaver Pond spring lies in the space between East River mountain and Peery’s milldam. The engineer says:

“A large flag was placed at the corner on East Kiver mountain, high above the trees, andasír<r¿,<Jí¿&'»«was accurately run from Peery’s milldam to it. Along this line were found numerous line trees, marked as described in the report of the three surveyors, and which are shown on the plat. It will be observed that the marked line trees were not exactly on this straight line [made by himself 1 joining the two corners, which may readily be accounted for from the fact that the appliances and methods used then were inferior to the present instruments and practice. In fact, it would be impossible to run a straight line over such ground, seven miles long, with an ordinary surveyor’s compass, depending entirely upon the magnetic needle; and this long line of marked trees is about as most of the old lines through hilly, wooded country are found to be.” (He meant to say, “is about as crooked as most of the lines of the old surveyors are found to be. ”)

In tbe fact that, pursuing the old line marked by the numerous line trees mentioned by Mr. Dunlap, and laid down on tins old plat, there is found to exist a different line from the new, straight one run by this engineer with modern instruments, we have an explanation of the circumstance that the Beaver Pond spring is by the old plat in Mercer, and by the new plat in Tazewell, county.

The law declares that the plats made by the county surveyors, two or more in number, shall be conclusive in all controversies relating to them,—conclusive, not only as to the lines, but as to the natural objects laid down upon them. Mr. Dunlap’s line is more scientific than the swerving line, seven miles long, which it was “impossible” for the three old surveyors to make straight; but it is the line of science, and not the line of the law. The line of the law must prevail, even though, by swerving a greater or less number of rods, poles, or perches from a scientific course, it left the Beaver .Pond spring in West Virginia. All the surveys of county boundaries and private lands made in the centuries of our colonial and national history, including three-fourths of the present century, were made by surveyor’s compass, Jacob’s staff, and theodolite. The old surveyors possessed no long-visioned telescopes. They groped their way through forests, depending alone on the magnetic needle for their courses. In the language of Mr. Dunlap, it was “impossible” 'to make their lines straight with these imperfect instrumentalities. All their lines were more or less devious and rambling. But, such as they were, in order to prevent infinite disputes and ceaseless litigation, the law made the lines thus run by official surveyors, and the plats describing them by natural objects, “conclusive” evidence in all controversies relating to them. These lines are fixed and established, and cannot be changed. If now the scientific skill of modern engineers, and the highly-improved instruments now used by them, were applied to these old lines; if bright flags hoisted high above the tops of the trees on lofty mountain tops, and telescopes with range of 7 or 70 or 170 miles, were employed to straighten out the existing boundary lines of states, counties, and farms,—a uni versal babel of protest would be raised throughout the land against the injustice, the innovation, and the impertinence.

In the eye of the law, and by force of law, this Beaver Pond spring is in West Virginia; and the service made by the officers of Tazewell county upon agents “'on the premises” of the appellant company was null and void. This company, in laying pipes in Mercer county leading from Bluefield to this spring, and in erecting buildings and placing machinery at the Beaver Pond spring, was not “doing business” in the state of Virginia, and was not amenable to the provisions of section 1105 of the Code of Virginia, authorizing the process to he served on any of its agents. It is plain, llierefore, that the court below erred in disregarding the rule of evidence prescribed by the Virginia act of assembly of February Id, 1845; in treating the plat of Hall, Harman, and Hale as inconclusive; in allowing any line to be run by a civil engineer other than that of the three surveyors; in accepting the report and plat of that engineer', laying down a different line between East River mountain and Peery’s milldam in lieu of the line and plat already established by law; and in accepting this engineer’s line as proving that the Beaver-Pond spring was in Tazewell county, Va., and rejecting the line and plat of the three surveyors, which placed this spring in Mercer county, W. Va. In the course of political events, this line, formerly of counties only, has become the boundary line between two states; and it is incompetent for any court., in a suit between private persons. by the appointment of an engineer or otherwise, to change that line for any purpose, whether to affect the rights of citizens, or to enlarge or diminish the territorial jurisdiction of courts, or to augument the domain of one state at the expense of another slate.

The decree of the court’ below, from which this appeal is taken, must therefore be reversed for want of jurisdiction, and the suit dismissed, but without prejudice to ¡he plaintiff below in any suit; which he may institute in a court of competent jurisdiction to enforce any rights he may have as riparian owner of lands lying upon the stream supplied from the Beaver Pond spring, which has been the chief subject of the present litigation.