Action for condemnation of property by the West Side Railroad Company against the California Pacific Railroad Company, the Southern Pacific Company, and others. On motion to remand to state court.

This is a motion to remand. The action was brought in the state court by the plaintiff, a railroad corporation of this state, against the California Pacific Railroad Company, also alleged to be a corporation organized and existing under the laws of this state, the Southern Pacific Company, a corporation having its creation and existence under the laws of Kentucky, and other defendants, sued by fictitious names, to condemn property for use as a right of way for plaintiffs railroad — the complaint alleging that “the owners and 'claimants of the property herein sought to be condemned and herein described, so far-as the same are known to the plaintiff, are: California Pacific Railroad Company, a corporation, Southern Pacific Company, a corporation,” and the fictitious defendants; and after a description of the property sought to be taken it is alleged “that the defendant California Pacific Railroad Company claims to own said real property hereinbefore described, and reciuired by plaintiff, being the entire parcels or tracts of land, of which the real property sought to be taken is the whole.”

The defendant Southern Pacific Company, within due time after service of summons upon it, procured an order of the state court removing the cause to this court upon a petition the material averments of which, after stating formal jurisdictional matters, are:

“That the California Pacific Railroad Company, named as a defendant "in plaintiff’s said complaint, ever since the 12th day of April, 1S9S, has been and now is a defunct and extinct corporation, and has no right, title, or interest in or to the property therein sought to be condemned, or in or to the alleged cause of action therein stated. That the defendants John Doe Com-l>any, a corporation, Richard Roe, Thomas Coe, Mary Moe, and John Brown are fictitious, nominal, and formal parties, and have no interest whatsoever in or to said property or said alleged cause of action as stated in plaintiff’s complaint. That defendant Southern Pacific Company has a substantial and material interest in and to the property described in the complaint, and is the only proper party defendant appearing on the face of said complaint. That at the time of the commencement of this suit there was, ever since has been, and still is therein a controversy wholly between citizens of different states, which can be fully determined between them; that is to say, between plaintiff, West Side Railroad Company, and said defendant, Southern Pacific Company, your petitioner.”

Plaintiff’s motion to remand proceeds upon the ground that, upon the facts disclosed in the record, the cause is one not subject to removal. . In its formal motion filed for that purpose, in addition to such general ground, it is stated:

“That said action is an action in eminent domain, wherein and whereby said plaintiff seeks to condemn for the usds and purposes of the plaintiff a .certain lot of land situate in said county of Tolo, state of California, and that under and by virtue of the statutes of the said state of California relating to eminent domain, to wit, subdivision 2 of section 1244 of the Code of Civil -Procedure of state of California, all persons who are owners or claimants of the property sought to be condemned are necessary parties to said action. That the Southern Pacific Company, a corporation, claims to be in possession and entitled to possession of said property. That, so far as the records of said county of Yolo show the ownership of said property, the Pacific Improvement Qompany, a corporation, by deed of grant, bargain, and sale, made and executed by Pacific Improvement Company, dated May 29, 1894, conveyed said property to defendant California Pacific Railroad Company, a corporation. That said California Pacific Railroad Company, a corporation, was organized. and existing under and by virtue of the laws of the state of California, and that its principal place of business was at all times in the said city and county of San Francisco, state of California, and that therefore it was at all times a resident and citizen of the said state of California. That on the 12th day of April, 1898, certain articles of incorporation and amalgamation were executed between the said California Pacific Railroad Company, a corporation, and the Southern Pacific Railroad Company and other corporations, wherein and whereby said corporations were amalgamated and incorporated under the laws of the state of California as the Southern Pacific Railroad Company, and that the Southern Pacific Railroad Company is organized and existing under and by virtue of the laws of the state of California, and has its principal place of business in the city and county of San Francisco, state of California, and is a resident and citizen of said state of California. That in and by the said articles of amalgamation and incorporation all of the property of the said California Pacific Railroad Company, a corporation, is transferred to and vested in the said Southern Pacific Railroad Company.”

The motion is accompanied by an affidavit purporting to disclose and set forth the present state of the title, so far as appears on the records of the county where situated, to the premises in controversy, in accordance with the statements above recited in the plaintiffs motion.