umnma v. wurms. 49
MILLER and another v. Wsrrmu.
(Circuit Court, D. Oregon. June 17, 1885.)
1. Rmrovsn or Cause - Sum- Amsme osnnn A Lsw or me Umren Sums.
A suit by a vendee of the state under the act of October ::6, 1870, providing
for the selection and sale of the swamp and overhowed lands granted to the
state by the act of March 12, 1860, to enjoin the commission of a nuisance on
the land so purchased, involves the question of whether said land was granted
to the state by said act at the time of its selection by the state under said act of
1870, and therefore arises under said act of March 12, 1860, and is removable
into this court under section 2 of the act of March 3, 1875, without reference
to the nature of the other questions that may be involved in it.
Suit to Enjoin the Commission of a Nuisance.
N. B. Knight, for plaintiffs.
H. Y. Thompson and George H. Williams, for defendant.
DEADY, J. This is a suit in equity, brought by the plaintiffs in the
state circuit court for the county of Marion, to enjoin the defendant
from maintaining a certain dam on Little Pudding river, on the
ground that the same causes the water to flow back on the plaintiffs'
lands, and is therefore a nuisance. The defendant answered the
complaint, and then removed the cause to this court on the ground
that the controversy in the case arises under the act of congress of
March 12, 1860, granting the swamp and overflowed land in Oregon
to the state. The plaintiffs now move to remand the cause for the
reasons following:
(1 j It does not appear that a copy of the record has been filed in this court
as required by law. (2) It does not appear that the case is one arising un-
der the constitution or laws of the United States. (3) The court has no
jurisdiction of the parties or subject-matter.
In support of the first point, it is stated by counsel, and such ap-
pears to be the fact, that the clerk of the state court, instead of mak-
ing a "copy" of the record for this court, has put together the original
papers,with copies of the journal entries, and delivered them to the
defendant for that purpose.
The act of 1875 (18 St. 471) requires the party removing a cause
to nle "a copy of the record" in the court to which it is removed.
The law devolves on the party, and not the clerk, the duty of procur-
ing and filing a copy of the record; but if the clerk refuses to furnish
such copy when duly demanded, he may be proceeded against both
civilly and criminally. But there is no virtue or convenience in the
copy that the original does not possess, and the former is only re-
quired because it would be inconvenient, if not improper, to deprive the
state court of the latter,—the usual and proper evidence of acts done
and suffered therein. But the fact is, the state court has voluntarily
furnished the defendant with a portion of the record, instead of a copy
of the same, for filing and use here, and I do not think the plaintiffs
ought to be heard to object to it. They are not injured nor incon-
v.24r,no.2——4