Prior to tbe docketing of tbis proceeding in tbe Superior Court of Haywood County, upon defendant’s appeal from tbe report of tbe jury, assessing tbe amount wbicb defendant was entitled to receive as compensation for bis land, and as damages for tbe taking of tbe same by plaintiff, for street improvements, under tbe right of eminent domain, conferred upon plaintiff by statute, it was an administrative, and not a judicial proceeding. Upon sucb docketing, it became a judicial proceeding, or “suit of a civil nature” witbin tbe meaning of U. S. Comp. Stat., sec. 1010, Jud. Code, sec. 28, as amended. It involves a controversy between a citizen of tbe State of North Carolina, in wbicb tbe suit was brought, and a citizen of another State; tbe amount involved exceeds tbe sum or value of $3,000, exclusive of interest and costs. It was, therefore, removable from tbe Superior Court of Haywood County to tbe District Court of tbe United States for tbe Western District of North Carolina, provided tbe petition and bond were filed in apt time as required by act of Congress. It is so held in Comrs. of Road Imp. Dist. No. 2 v. St. Louis S. W. R. Co., 257 U. S., 547, 66 L. Ed., 364.
Chief Justice Taft, in bis opinion in that case, after reviewing tbe provisions of tbe statute, under wbicb tbe proceeding was begun, says: “Tbis review shows that tbe proceedings for tbe making of tbis road improvement are, in tbe main, legislative and administrative. There is, however, one step in them that fulfils tbe definition of a judicial inquiry if made by a court. That is tbe determination of tbe issue between tbe road district, on tbe Qne part, and tbe landowners on tbe other, as to tbe respective benefits wbicb tbe improvement confers on their lands, and tbe damages they each suffer from rights of way taken and other injury.”
“A judicial proceeding to take land by eminent domain, and ascertain compensation therefor, is.a suit at common law witbin tbe meaning of tbe Federal Judiciary Act; and when tbe requisite diversity of citizenship exists, sucb suit may be brought in or transferred to tbe Federal District Court of tbe district in wbicb tbe land lies. Such diversity of citizenship arises when a private or municipal corporation seeks to condemn land witbin tbe State of its origin, when sucb land belongs to a citizen of another State; and whether condemnation be effected by judicial proceedings or other statutory processes, tbe Federal Court must necessarily follow tbe procedure prescribed by tbe State statutes.” 10 R. C. L., 207, see. 177, and cases cited.
Immediately upon tbe docketing of tbis proceeding in tbe Superior Court of Haywood County, at wbicb time tbe proceeding first became a “suit of a civil nature,” removable from tbe State to tbe Federal Court, defendant filed his petition and bond, as required by act of Congress. *134No answer or other pleading was required of him by statute or rule of court to raise tbe issue to be tried at tbe next term of tbe court. He had not waived bis right to a removal by filing exceptions to tbe report of tbe jury appointed by tbe board of aldermen to assess bis damages; tbe filing of these exceptions was required by tbe statute in order to have tbe proceedings transferred to tbe Superior Court. Tbe petition for removal, filed before tbe convening of tbe court at which tbe issue between plaintiff and defendant stood for trial, was filed in apt time. He bad not theretofore subjected himself or bis cause to tbe jurisdiction of tbe State court by filing an answer or other pleading. In Comrs. of Road Imp. Dist. No. 2 v. St. Louis S. W. R. Co., supra,, it is held that where tbe petition for removal was filed before tbe day set for tbe bearing and determination of tbe issue, tbe requisites of the removal statute were fulfilled.
Tbe order of removal in tbe instant ease, upon tbe authority of Comrs. of Road Imp. Dist. No. 2 v. St. Louis S. W. R. Co., supra, is
Affirmed.