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U.S. Supreme Court

Consolidated Turnpike Co. v. Norfolk &c. Ry. Co., 228 U.S. 596 (1913)

Consolidated Turnpike Company v.

Norfolk & Ocean View Railway Company

No. 152

Petition for rehearing submitted April 28, 1913

Decided May 12, 1913

228 U.S. 596


Petition for rehearing granted, not because of doubt of correctness of the decree, but to prevent misconception concerning the reasons for dismissing the writ of error in this case, ante, p. 229 U. S. 326.

The certificate of the judge of the court below that a federal question was raised and passed upon is not, in the absence of any journal entry, a certificate of the court, but this Court may, if there is a recital in the certificate that the court orders the certificate to be made, accept it as incorporating into the record the necessary proof of existence of a federal question. Marvin v. Trout, 199 U. S. 212, distinguished.

Where the judgment of the state court rests upon a question of general law broad enough to support the decision, this Court will not consider the federal question, although it may have been raised in, and passed upon by, the court below. Gaar, Scott & Co. v. Shannon, 223 U. S. 468.

Page 228 U. S. 597

This Court is not justified in taking jurisdiction on the bare claim that property has been taken without compensation unless the averment of fact raise real and substantial questions which are not so devoid of merit as to be frivolous or which have not been foreclosed by prior decisions of this Court.

The state courts of Virginia having held that a railroad company which had acquired title to land on which it had built its roadbed could condemn the interest in the land of a mortgagee in possession without paying for its own improvements, this Court declines to review on the ground that the question of whether the mortgagee was deprived of his property without due process of law is frivolous.

The rule of the common law that fixtures annexed to the realty become a part thereof and subject to existing liens thereon is subject to many exceptions: in Virginia, a corporation possessing the power of eminent domain may enter and use for public utility purposes and condemn the interest of the mortgagee without being obliged to pay more than the value of the land without such improvements.

Petition to rehear, 228 U. S. 228 U.S. 326, dismissing writ of error to review 111 Va. 131 denied.

The facts, which involve the jurisdiction of this Court to review judgments of the state courts where the federal question is so devoid of merit as to be frivolous, are stated in the opinion.

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