The Madisonville Traction Company, a Kentucky corporation, having by its charter authority to construct an electric railroad, filed its application in the county court of Hopkins county, in that commonwealth, to condemn for its use certain lands belonging to the Saint Bernard Mining Company, a Delaware corporation engaged in mining coal,-the traction company being styled in the application as plaintiff, and the mining company as defendant.
The application was made under the Kentucky statutes relating to the condemnation of lands. The nature of those proceedings, whether judicial or not, appears from certain provisions of those statutes, which may be summarized as follows:
Any company authorized to construct a railroad, if 'unable to contract with the owner of any land or material necessary for its use for the purpose thereof,' may file in the office of the clerk of the county court a description of such land or material, and have commissioners appointed to assess the damages which the owner is entitled to receive. Ky. Stat. § 835.
The commissioners are required to make their award of damages in writing, giving the names of the owners, and whether nonresidents of the state, infants, of unsound mind, or married women. Ky. Stat. § 836.
It is made the duty of the clerk of the court, upon application of the company, to issue process against the owners, to show cause why the report should not be confirmed, and make such orders as to nonresidents and persons under disability as are required by the Civil Code of Practice in actions against them in the circuit court. Ky. Stat. § 837.
At the first regular term, 'after the owners shall have been summoned the length of time prescribed by the Civil Code of Practice before an answer is required,' the court must examine the report, and pass upon it. Ky. Stat. § 838.
If exceptions are filed by either party, a jury must be empaneled to try the issues of fact, and judgment rendered in conformity to the verdict, if sufficient cause to the contrary be not shown. Either party may appeal to the circuit court, the appeal to be tried de novo.
Upon the confirmation of the report of the commissioners or the assessment of damages by the court, as provided, and the payment to the owners of the amount due, as shown by the report of the commissioners when confirmed, or as shown by the judgment of the court when the damages are assessed by it, and all costs adjudged to the owner, the railroad company becomes entitled to take possession of the land and material, and to use the same for the purpose for which it was condemned as fully as if the title had been conveyed to it. But when an appeal is taken from the judgment of the county court by the company, it is not entitled to take possession of the land or material condemned until it pays into court the damages assessed and all costs. Ky. Stat. § 839.
The commissioners appointed by the county court, in the above proceeding, awarded $100 as damages to be paid to the mining company.
Process having issued, the mining company, before any action was taken upon the report, filed its petition and bond for the removal of the case into the circuit court of the United States, alleging, among other things, that the value of the matter in dispute, exclusive of interest and costs, exceeded $2,000. The petition for removal distinctly alleged, as the ground of removal, that the two companies were corporations of different states.
The sufficiency of the bond was not disputed. But the county court refused to recognize any right of removal, and the Kentucky corporation was about to proceed in the prosecution of its case in that court, despite the application for removal. Thereupon the Delaware corporation filed in the circuit court of the United States a complete transcript of the proceedings in the state court.