City of Ashland v. Wisconsin Central Railway Co.

The following opinion was filed February 23, 1904: Siebeckek, J. There is no dispute but that the cross-bill filed in the companion case of Ashland v. Whitcomb, 120 Wis. 549, embraced the cause of action sought to be litigated in this ease. The matters set out in the cross-bill eoncededly pertain to the rights of the respondents to the possession of and title to the land which appellant claims to be parts of the public streets, and that respondents are charged with having-erected and continuing to maintain structures thereon which are alleged to be encroachments in the streets. Respondents assert their right to this property by the authority vested in them under the order or decree of the federal court that they hold it for the court and apply it under the court’s direction and administration. Since it was determined in the Whit-comb Case that the federal court had assumed and retained [648] jurisdiction of the cause, it must follow that a prior action is pending in the federal court, wherein all the matters at issue in this case are to be litigated and finally determined between the same parties. Under such circumstances, the state court will defer to the jurisdiction and determination of the federal court, and take no proceeding in the case, unless the action be dismissed and thereby leave the state court free to proceed without conflicting with the jurisdiction of the federal court. Wo find the order striking the case frpm the calendar was properly granted. By the Court. — Order affirmed.