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which the circuit court, at the time its ju- | to the said land under and by virtue of the risdiction is invoked, could properly take said patent, and at said time claimed that uncognizance. If it does not so appear, then der the laws of the United States, and espe the court, upon demurrer or motion, or upon cially under and by virtue of the 1st section [328]* its own inspection of the pleading, must dis- of an act of Congress entitled "An Act Grantmiss the suit, just as it would remand to ing Public Lands in Alternate Sections to the state court a suit which the record, at the States of Florida and Alabama, to Aid in the time of removal, failed to show was with- the Construction of Railroads in said States," in the jurisdiction of the circuit court. It approved May 17, 1856, it was entitled and cannot retain it in order to see whether the had the right to locate the route of its raildefendant may not raise some question of road and construct the same through the a Federal nature upon which the right of re- said lands, and to be in possession thereof, on covery will finally depend; and, if so re- the ground, among other grounds, that the tained, the want of jurisdiction at the com- said § 8 was a part of that tract of land mencement of the suit is not cured by an an- which constituted at one time a military res swer or plea which may suggest a question ervation known as the Fort Brooke Military of that kind." Metcalf v. Watertown, 128 Reservation, at Tampa, state of Florida,U. S. 588, 32 L. ed. 543, 9 Sup. Ct. Rep. 173; there was presented a question needing for Colorado Cent. Consol. Min. Co. v. Turck, its solution a construction of laws of the 150 U. S. 138, 37 L. ed. 1030, 14 Sup. Ct. United States. Rep. 35; Oregon Short Line & U. N. R. Co. v. Skottowe, 162 U. S. 490, 40 L. ed. 1048, 16 Sup. Ct. Rep. 869; Hanford v. Davies, 163 U. S. 273, 41 L. ed. 157, 16 Sup. Ct. Rep. 1051; Press Pub. Co. v. Monroe, 164 U. S. 105, 41 L. ed. 367, 17 Sup. Ct. Rep. 40.

were

the defendant's title, but it could not af-
fect the plaintiffs' title unless it were
pleaded and set up by the defendant. It has
been several times held by this court that the
plaintiff, if the statement of his own claim
does not disclose a Federal question, cannot
create jurisdiction in a circuit court by an-
ticipating the defendant's claim, and by al-
leging that the defendant will set up a de-
fense under some law of the United States.

It is obvious that all that is added by these allegations to the plaintiffs' statement of their own claim is a statement of what the defendant claimed before and at the time of the commencement of this suit in respect to its own title. The plaintiffs We do not, however, understand that not pretending to have title under the these cases are questioned by the defend- act of May 17, 1856, however it might be ants in error, but their contention is that construed. That act was, under the allein the plaintiff's declaration it did sufficient-gations of the declaration, the source of ly appear that a Federal question was necessarily involved, upon the solution of which the determination of the case depended. The paragraph of the declaration which sets forth the plaintiffs' claim is as follows: "The plaintiffs allege that they claim title to the said land under and by virtue of a patent granted by the government of the United States of America to the said Louis Bell and his heirs, upon a pre-emption claim for said land under the laws of the United States, originally commenced and filed in the local land office of the United States of America at Gainesville, Florida, in 1883, and prosecuted by the heirs of the said Louis Bell and his heirs, the plaintiffs, in said land of- "In each of the three cases now before this fice; and upon appeal in the General Land court, the only right claimed by the plaintiffs Office of the government, and upon and from is under the law of Tennessee, and they asan appeal from the decision of the Commis-sert no right whatever under the Constitusioner of the said General Land Office to the Secretary of the Interior of the United States, the said heirs prosecuted the pre-emption claim, until by the order and decision of the said Secretary the said patent was granted."

In view of the frequent and recent decisions of this court on this subject, it is not necessary to argue the proposition that the mere assertion of a title to land derived to the plaintiffs under and by virtue of a patent [329]granted by the United States, presents *no question which, of itself, confers jurisdiction on a circuit court of the United States. Blackburn v. Portland Gold Min. Co. 175 U. S. 571, ante, 276, 20 Sup. Ct. Rep. 222.

*Thus, in Tennessee v. Union & P. Bank,[330] 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654, Mr. Justice Gray, after citing Metcalf v. Watertown, 128 U. S. 586, 32 L. ed. 543, 9 Sup. Ct. Rep. 173, and other cases, said:

tion and laws of the United States. In the first and second bills the only reference to the Constitution or laws of the United States is the suggestion that the defendants will contend that the law of the state under which the plaintiffs claim is void because in contravention of the Constitution of the United States; and by the settled law of this court, as appears from the decisions above cited, a suggestion of one party that the other will or may set up a claim under the Constitution or laws of the United States does not make the suit one arising under that Constitution or those laws." Chappell v. Waterworth, 155 U. S. 102, 39 L. ed. 85, 15 Sup. Ct. Rep. 34; East Lake Land Co. v. Brown, 155 U. S.

Oregon Short Line & U. N. R. Co. v. Skottowe, 162 U. S. 490, 40 L. ed. 1048, 16 Sup. Ct. Rep. 869.

But it seems to be thought that, by alleg-488, 39 L. ed. 233, 15 Sup. Ct. Rep. 357;
ing that the defendant claimed and contended
in the Land Department that the plaintiffs
were not entitled under any of the laws of
the United States to have a patent granted
to them, and that the defendant at the time
of the commencement of this suit claimed and
insisted that the plaintiffs derived no title

And even if it could be held that, by anticipating a supposed defense, a Federal question might be made to appear to be involved in the controversy, jurisdiction in the cir

cuit court would fail if, on the coming in of the plea or answer, the defense would turn out to be based on matter wholly independent of the Constitution or any law of the United States, and it would be the clear duty of the court to dismiss the suit for the reason that it did not "really and substantially involve a dispute or controversy within the jurisdic

tion of that court."

So it was held in Robinson v. Anderson, 121 U. S. 522, 30 L. ed. 1021, 7 Sup. Ct. Rep. 1011, where an order of the circuit court dismissing the case was affirmed, this court saying, through Mr. Chief Justice Waite:

"Even if the complaint, standing by itself, made out a case of jurisdiction, which we do not decide, it was taken away as soon as the answers were in, because if there were jurisdiction at all it was by reason of the averments in the complaint as to what the defenses against the title of the plaintiff would be, and these were of no avail as soon as the answers were filed and it was made to appear [331]that no such defenses were *relied on. The circuit court cannot be required to keep jurisdiction of a suit simply because the averments in a complaint or declaration make a case arising under the Constitution, laws, or treaties of the United States, if, when the pleadings are all in, it appears that these averments are immaterial in the determination of the matter really in dispute between the parties, and especially if, as here, they were evidently made for the purpose of creating a case,' cognizable by the circuit court, when none in fact existed."

Such observations are directly applicable to the present case, for the defendant, in its plea to the jurisdiction of the court, explicity admitted the plaintiffs' title to the land under the patent, and denied that the defendant claimed title to the land in dispute under the act of May 17, 1856, or under any other act of Congress, but placed its defense, by way of confession and avoidance, on totally different grounds than those mentioned in the declaration, and which involved no construction or application of the Constitution or laws of the United States.

It is contended, however, that, whether or not the circuit court had jurisdiction to determine the question of title to the land in dispute, or of the right of possession thereof, the plaintiffs' demand to recover mesne profits accruing between the pre-emption entry and the issuance of the patent presented a question within the jurisdiction of that court. It is not easy to perceive why, if the circuit court did not possess jurisdiction to decide the right of possession, it could have jurisdiction to pass upon the question of mesne profits, the right to recover which would depend on the right of possession.

|

Land Office involved an examination and con-
struction of the laws of the United States.
The case was brought to this court, but was
dismissed on stipulation of the *parties. The[332]
report of the case does not disclose whether`
there was really a controversy between the
parties respecting the construction of the
land laws of the United States. What really
seems to have been involved, in respect to
mesne profits, was whether the doctrine of
relation, which is a common-law doctrine,
would enable the plaintiff, after having es-
tablished his title, to recover the mesne prof-
its which accrued while the plaintiff was
wrongfully excluded from possession. Such a
question would not seem to be a Federal one,
but one incidental to the determination of
the principal controversy concerning the right
of possession.

At all events, there is nothing disclosed in
the declaration in the present case showing
that, so far as the damages and mesne profits
are concerned, any Federal question was pre-
sented. If the circuit court had jurisdiction
to determine the right of possession, and, in
the exercise of that jurisdiction, decided in
the plaintiffs' favor, the incidental question
of the time when damages and profits would
accrue to the plaintiffs would legitimately
arise. But if that court had not jurisdiction
to determine the controversy as to the right
of possession, i: could not draw to itself the
jurisdiction of the case by considering what
the consequences would be if the plaintiff's
were permitted to recover possession.

Apart from the question of jurisdiction arising from the presence of any Federal question, can it be said that jurisdiction did attach in respect to those plaintiffs who were alleged to be citizens of Texas?

As we have seen, neither of the courts be-
low were of that opinion. The judgment of
the circuit court was in favor of all the plain-
tiffs jointly for the entire tract in dispute,
and, in so doing, followed the plaintiffs' claim
in their declaration, wherein they claimed
title to the whole tract as belonging to them
jointly. They did not allege that they were
tenants in common, although in the findings
the court found that the respective plaintiff's
held undivided interests in the land.

In Strawbridge v. Curtiss, 3 Cranch, 267, 2
L. ed. 435, it was said:

"Where the interest is joint, each of the
persons concerned in that interest must be
competent to sue, or liable to be sued, *in the[333]
circuit courts. But the court does not mean
to give an opinion in the case where several
parties represent several distinct interests,
and some of those parties are, and others are
not, competent to sue or liable to be sued, in
the courts of the United States."

New Orleans v. Winter, 1 Wheat. 91, 4 L. In affirming this view of the case the cir- ed. 44, was the case of a possessory action cuit court of appeals cites Evans v. Durango brought by the heirs of Elisha Winter, deLand & Coal Co. 49 U. S. App. 320, 80 Fed. ceased, to recover the possession and propRep. 433, 25 C. C. A. 531. That was a case erty of certain lands in the city of New Orwhere the circuit court of appeals of the leans. One of the petitioners was described eighth circuit held that the inquiry as to the in the record as a citizen of the state of Kenright of the plaintiff to recover mesne profits tucky, and the other as a citizen of the terriaccruing while the alleged contest was de- tory of Mississippi. The plaintiffs recovered pending and undetermined in the General' a judgment in the circuit court, but this

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was made to discontinue as to the three plain-
tiffs who were citizens of the District of Co-
lumbia, and to amend the complaint and pro-
ceed with the cause in favor of that one of
the plaintiffs alleged to be a citizen of Min-
nesota, jurisdiction as to four plaintiffs
could not be maintained on the theory that
when the trial terminated it might be re-
tained as to one. Accordingly the judgment
of the circuit court was reversed.

judgment was reversed by this court, Chief | reviewing the cases, that the voluntary
Justice Marshall saying:
joinder of the parties had the same effect for
"Gabriel Winter, being a citizen of the Mis- purposes of jurisdiction as if they had been
sissippi territory, was incapable of maintain-compelled to unite; that as no application
ing a suit alone in the circuit court of Louis-
iana. Is his case mended by being asso-
ciated with others who are capable of suing
in that court? In the case of Strawbridge v.
Curtiss it was decided that where a joint in-
terest is prosecuted the jurisdiction cannot
be sustained unless each individual be en-
titled to claim that jurisdiction. In this
case it has been doubted whether the parties
might elect to sue jointly or severally. How-
ever this may be, having elected to sue joint-
ly, the court is incapable of distinguishing
their case, so far as respects jurisdiction, from
one in which they were compelled to unite.
The circuit court of Louisiana, therefore,
had no jurisdiction of the cause, and their
judgment must on that account be reversed,
and the petition dismissed."

In Barney v. Baltimore, 6 Wall. 280, 18 L. ed. 825, it was held that part owners or tenants in common in real estate of which partition is asked in equity have an interest in the subject-matter of the suit and in the relief sought, so intimately connected with that of their cotenants that if these cannot be subjected to the jurisdiction of the court the bill will be dismissed.

As, then, in the present case the plaintiffs elected to assert a joint claim and title to the land in dispute, and recovered a *joint judg-[335] ment for their undivided interests therein, and as the plaintiffs' declaration discloses no Federal question, the principles of the cited cases apply, and compel a dismissal of the suit for want of jurisdiction in the circuit court.

This conclusion withdraws from our consideration the errors assigned to the action of the courts below in respect to the defendant's several pleas of lis pendens.

The judgment of the Circuit Court of Appeals is reversed; the judgment of the Circuit Court is likewise reversed, and the cause is remanded to that court with directions to dismiss the action for want of jurisdiction.

Hooe v. Jamieson, 166 U. S. 395, 41 L. ed. 1049, 17 Sup. Ct. Rep. 596, was an action of ejectment brought in the circuit court of the United States for the western district of Wisconsin, by a complaint in which the plain- | ADIRONDACK tiffs alleged that they resided in and were citizens of the city of Washington, D. C., and

[blocks in formation]

(See S. C. Reporter's ed. 335–350.)

Vested right of railway company to condemn
lands-effect of filing map-impairment of
obligation of contract.

that defendants all resided in and were citi- PEOPLE OF THE STATE OF NEW YORK.
zens of the state of Wisconsin. Defendants
moved to dismiss the action on the ground
that the circuit court had no jurisdiction, as
the controversy was not between citizens of
different states. The circuit court ordered
that the action be dismissed unless plaintiffs
within five days thereafter should so amend
their complaint as to allege the necessary ju-
risdictional facts. Plaintiffs then moved for
leave to amend their complaint by averring
that three of them were when the suit was
commenced, and continued to be, citizens of
the District of Columbia, but that one of
them was a citizen of the state of Minnesota,
and that each was the owner of an undivided
one fourth of the lands and premises de-
scribed in the complaint, and that they sev-
erally claimed damages and demanded judg
ment. This motion was denied, and the ac-
tion dismissed. Plaintiff sued out a writ of Argued January 15, 16, 1900. Decided Feb-
error, and the circuit court certified to this
court these questions of jurisdiction: First.

A railroad company's right to take lands by
eminent domain, so long as it is unexecuted
except by merely filing a map of a proposed
route, is not vested so as to make the con-
demnation of the land by the state for other
purposes operate as an Impairment of the ob-
ligation of the contract with the railroad
company, when the company was organized
under general statutes which provided for the
alteration, amendment, or repeal of corporate
charters.
[No. 439.]

ruary 26, 1900.

ERROR to the Court of Appeals of

Whether or not said complaint set forth any I the State of New York to review a de

cause of action in which there is a controversy between citizens of different states, so as to give said circuit court jurisdiction

thereof. Second. Whether or not said com

plaint as so proposed to be amended would, if so amended, set forth any cause of action in which there is a controversy between citizens of different states, so as to give said circuit court jurisdiction thereof. This court held, through Mr. Chief Justice Fuller, after

cision affirming a judgment which reversed
the original judgment in favor of the Peo-
that of the Appellate Division and affirmed
ple of the State enjoining condemnation pro-
ceedings by a railroad company. Affirmed.
See same case below, 160 N. Y. 225, 54 N.
E. 689.

Statement by Mr. Chief Justice Fuller:
*This is a writ of errer to a judgment of[336]

the court of appeals of the state of New | of said commission. Laws 1890, chap. 37;
York affirming a final judgment of the su- Laws 1892, chap. 707.
preme court of New York perpetually enjoin-
ing the Adirondack Railway Company from
taking certain lands by condemnation pro-
ceedings. The People of the State of New
York brought the action, and obtained judg-
ment at a special term of the supreme court,
which was reversed by the appellate divi-
sion, 39 App. Div. 34, 56 N. Y. Supp. 869,
whose order was in turn reversed by the
court of appeals, and the original judgment
affirmed. 160 N. Y. 225, 54 N. E. 689.

The case is thus stated in the opinion of the court of appeals by Vann, J.:

"The revised Constitution, which went into effect on the 1st of January, 1895, provides that 'the lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold, or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed, or destroyed.' Const. art. 7, § 7.

forest preserve and the Adirondack park "In 1895 the legislation relating to the "In 1882 the Adirondack Railway Compa- est law, and it was declared by § 290 that was extended by the fisheries, game, and forny was incorporated for the term of one such park shall be forever reserved, mainthousand years to construct and operate a tained, and cared for as ground open for railroad from Saratoga Springs to the river the free use of all the people for their health St. Lawrence, near the city of Ogdensburg. and pleasure, and as forest lands necessary It was a reorganization of an older corpora- to the preservation of the headwaters of the tion known as the Adirondack Company, chief rivers of the state, and a future timber which was organized in 1863, under the pro-supply; and shall remain part of the forest visions of chapter 236 of the Laws of that preserve.' Laws 1895, chap. 395, §§ 270, year. Prior to the foreclosure which re- 295. During the same year the forest comsulted in the reorganization, the Adirondack mission was authorized to purchase 80,000 Company had constructed a railroad from acres for the use of the Adirondack park. Saratoga Springs to North creek, in the Laws 1895, chap. 561. In 1897 an act was county of Warren, and this railroad, togeth-passed, the object of which, according to its er with the right to extend the same, be- title, was 'to provide for the acquisition of came the property of the Adirondack Rail- land in the territory embraced in the Adway Company, which, in April, 1892, applied irondack park, and making an appropria to the railroad commissioners for a certifi- tion therefor.' Laws 1897, chap. 220. By cate, under chapter 565 of the Laws of 1890, this act the appointment *of a forest preserve[338] to relieve it from the statutory obligation board was authorized, and it was made its of extending its lines; on the 9th of May fol- duty 'to acquire for the state, by purchase lowing, the commissioners issued their certificate accordingly. The Adirondack Rail- such portion thereof in the territory emor otherwise, land, structures, or waters, or way Company, thenceforth called the defend- braced in the Adirondack park, as defined ant, made no attempt to extend its road un- and limited by the fisheries, game, and forest til the early part of 1897, when a survey was law, as it may deem advisable for the intermade for a proposed extension from North ests of the state.' Section 3 of said act procreek through the counties of Warren, Ham- vides that 'the forest preserve board may ilton, and Essex, to the outlet of Long lake enter on and take possession of any land, in Hamilton county, where it was expected structures, and waters in the territory enthat, by connecting with other roads, a route braced in the Adirondack park, the approwould be secured to the St. Lawrence river. priation of which in its judgment shali be Before anything further was done to extend necessary for the purposes specified in § 290 the road, certain action, taken by the state, of the fisheries, game, and forest law, and in should be briefly alluded to. § 7 of article 7 of the Constitution.' It is provided by the next section that 'upon the request of the forest preserve board an accurate description of such lands so to be ap propriated shall be made by the state engi neer and surveyor, or the superintendent of the state land survey, and certified by him to be correct, and such board, or a majority thereof, shall indorse on such description a certificate stating that the lands described therein have been appropriated by the state for the purpose of making them a part of the Adirondack park; and such description and certificate shall be filed in the office of the secretary of state. The forest preserve board shall thereupon serve on the owner of any real property so appropriated a notice of the filing and the date of filing of such description, and containing a general description of the real property belonging to such owner which has been so appropriated; and from the time of such service, the entry

"In 1885 the forest preserve was created [337]by statute, embracing "all the lands now owned, or which may be hereafter acquired, by the state of New York within' certain counties, and the area was extended by subsequent legislation. Laws 1885, chap. 283; Laws 1887, chap. 639; Laws 1893, chap. 332. These acts required said lands to be forever kept as wild forest lands, and provided that they should not be sold, leased, or taken by any corporation, public or private. A forest commission with appropriate powers was created to care for the forest preserve, and appropriations were made from time to time to enable it to properly discharge its duties. "In 1890 the forest commission was authorized to 'purchase lands so located within such counties as include the forest preserve, as shall be available for the purposes of a state park,' and in 1892 the Adirondack park was established and placed under the control 176 U. S.

upon and appropriation by the state of the each of said three counties. It also gave noreal property described in such notice for the tice of such filing to the occupants as reuses and purposes above specified shall be quired by statute, but did nothing else. deemed complete, and thereupon such prop- About the 1st of October following, as the erty shall be deemed and be the property of owners were about to convey to the state the state. Such notice shall be conclusive the lands covered by the resolution of August evidence of an entry and appropriation by 6, and receive their money, they were rethe state. § 4. Provision is made by the strained from so doing by an injunction isnext section for the payment for lands so sued in an action brought by the Adirondack taken, and for damages resulting from the Railway Company against them. Thereappropriation by agreement with the owner upon they placed the deed in escrow to be deand the delivery of a certificate payable by livered when the injunction was dissolved, the state treasurer upon the warrant of the made another deed embracing the same premcomptroller. § 5. If the forest preserve ises, except the land described in the railroad board is unable to agree with the owner upon survey, delivered it to the forest preserve [389]*the value of the property appropriated, the board, and received the $99,000, according to owner, within two years after the service up- agreement. Immediate steps were taken to on him of the notice of appropriation, may vacate the injunction, but they were not at present a claim for the value of the land to first successful, and on the 7th of October the the court of claims, which has jurisdiction forest preserve board met, and, learning that to hear and determine the same and to render the justice who granted the injunction had judgment thereon. The amount of the final declined to vacate it, they took steps to apjudgment is payable by the treasurer upon propriate the land in question for a park unthe warrant of the comptroller. § 6. No der the power of eminent domain. The state provision is made by the act for the pay-engineer having furnished a description in ment of any lien upon the lands except that writing of the 6-rod strip, which the defendwhen a judgment for damages is rendered, ant desires for a railroad, and certified that and it appears that there is a lien or encum- the same was correct, the three members of brance upon the property appropriated, the the forest preserve board, acting under chapamount thereof shall be stated in the judg-ter 220 of the Laws of 1897, annexed thereto ment, and the comptroller may deposit the a certificate of condemnation and signed the amount awarded in the proper bank to be same as the forest preserve board, in these paid and distributed to the person entitled words: 'State of New York, county of Alto the same as directed by the judgment. bany, city of Albany, ss. We, Timothy L. § 19. The sum of $600,000 was appropriated Woodruff, Charles H. Babcock, and Campbell for the purposes specified in the act, and the W. Adams, being the forest preserve board, comptroller was authorized to borrow $400,- acting under and in pursuance to an act of 000 more upon the request of the forest pre- the legislature of the state of New York, beserve board to be expended under its direc-ing chapter 220 of the Laws of 1897, entitled tion. "An Act to Provide for the Acquisition of "On the 6th of August, 1897, after certain Land in the Territory Embraced in the Adinegotiations with the owners of a part of an rondack Park and Making an Appropriation extensive tract of land known as the Totten Therefor," do hereby certify that the lands & Crossfield purchase, the forest preserve in township 15, Totten & Crossfield purchase, board passed a resolution accepting the offer in the counties of Hamilton, Essex, and Warof the owners of about 18,000 acres of town-ren, of the state of New York, described in ship 23, and 32,000 acres of township 15 of the foregoing certificate of the state engi that purchase for the sum of $149,000, of neer, have been and hereby are duly appro-[341] which $99,000 was for the land and $50,000 priated by the state of New York for the purwas for certain improvements at Indian lake pose of making them a part of the Adironfor the use of the state, to be made in accord-dack park.' These papers, indorsed 'State ance with the plans and specifications to be engineer's certificate and description and forfurnished by the state engineer. Township est preserve board's certificate of condemna15 of the Totten & Crossfield purchase lies, tion,' were filed in the office of the secretary as is admitted in the answer, 'wholly within of state on the 7th of October, 1897. On the the bounds of the forest preserve and also of same day a notice of this action of the board the Adriondack park.' Upon the 15th of with a general description of the property August, 1897, a representative of the state appropriated and a copy of the papers above engineer with a surveying party began sur-mentioned, were served on William McEchveying at Indian lake for the purpose of con- | structing a dam at its mouth in order to stow water for the use of the Champlain canal and for water power on the Hudson river. Upon the completion of the survey plans and specifications were prepared and the construction of the dam was commenced.

ron, the president of the Indian River Company, which then owned the lands involved. This service was made, as the special term is presumed to have found, at ten minutes before noon. On the same day the defendant began proceedings to condemn said strip for the purpose of extending its railroad, but, as "September 18, 1897, the defendant caused the special term is also presumed to have [840]a map and profile *to be filed in the counties found, they did not file the lis pendens until of Hamilton, Warren, and Essex for the ex-afternoon, and hence not until after the tension of its road across township 15, which the forest preserve board had agreed to purchase as aforesaid, and which lies partly in

aforesaid proceeding in behalf of the state had been completed. No notice of condemnation was served on the defendant.

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