KURlU.Y fl. BLUEBIRD MIN. 00.
MURR4YfI. BLUEBIRD MIN.
(04treu1.t .Court, D. Montana. February 4,1891.)
.JURISDICTION OP CIRCUIT COURT.
A case in which the disputed questions are either not vital, or questions of fact purely, or questions of mixed law and fact, which may be decided by a jury according to the evidence, under rulings and instructions of the court, not involving a decision of any controverted point as to the applicability or construction of any provision of the constitution or of any statute of the United States, does not come within. the jurisdiction of a circuit coun of the United States, by virtue of the clause df the statute giving jurisdiction of causes arising under the constitution or laws of the United States. .
(SyZlabus b'I/ the Oourt.)
In Equity. .... WiUiam ScaUon, (Thomas M. Patterson and F. W. Oole, of counsel,) for plltintiff. . Diwn Drenntln, M.K,irkpatiick, and Forbis Forbis, for defenaant.
, HANFORD, J. By a demurrer to the complaint herein the defendant has challenged the jurisdiction of the court over the case, the sole question being whether the case is one.atising under the constitution orlaws of the United States. The object of the action is to try the title tocertain mining property, and to recover possession of said property, to which the plaintiff claims to have derived title by It patent from· the United States. The complaint charges that, while the plaintiff was owner and;,in lawful possession, the defendant wrongfully, by means of under-ground workings, did enter upon a certain vein of ore or mineral deposit, which is the property in controversy, and run thereon a drift or level, and extend cross-cuts, stopes, and raises, and to reach said vein did by cross-cuts penetrate the country rock from a shaft sunk from the surface within the boundaries of mining ground,to which the defendant has title from the United States by a patent, and that by so doing the defendant has dispossessed· plaintiff of said vein, and of the space under"ground occupied by the several extensions, levels,. cross-cuts, stapes, and raises referred to. The complaint also alleges that the de-,. j'f;\\dant justifies the ouster by asserting that the said vein or mineral de-,. posit is in fact the Bluebird vein or lode, which has its apex within the surface limits of the ground, to which it has acquired the title by a ent from the United States; that the same is a true vein or lode of rock in place, bearipg precious metal; that it is situated and extends so as to be intersected by one of the end-lines of its property drawn downward vertically, !tnd continued in its own direction; and that by its dip said vein or lode so departs from a true perpendicular course downward as to extend over a vertic;al line dividing the grounds of the defendant from the grounds of the plaintiff. The plaintiff denies that said vein or lode mthe Bluebird: vein, the complaint shows, denies practically the .claims andpretensij)ns of the defendant respecting all therook, mineral,andgrourid above and beneath the outside of the ver" v.45F.no.6-25
tical lines of the ground to which plaintiff has tiUe. The plaintiff contends that a decisionofl this:coutroversy necessflrily invQlves the application and construction of certain acts of congress pursuant to which the patents to the respective parties were issued, and that, therefore, the case has arisen under the laws of the United States, and COlnes within the !,:I:p. support of the, demurrer the defendant jurisdiotion of this contends tlIat the complaint fails to show affirmatively that there is any controversy' as to the or interpretation to 1:>egiven to any upon a distinct question oflaw. In statute, or that the the,dljl(lisions that AAve :made, the rule by which this question of jurisdiction must be decided has been stated in different ways, but to the same effect, and harmoniously with the following q'l16tation from the decision of the supreme court of the United States in the case of Starin v. NeIJ? York, 115 U. S. 2-57,,6 Sup. Ct. Rep. 31: , ' "If, ftom the quefiltions,it appears that some title,;right, privilege, immUTuty, 011 which tlle recovery delJends, will be defeated by one construCtion of the constitution or alaw of 'the United States, or sustained by the opposite construction, the case will be one arising under the constitution or laws of, the United,States. within the meaning of ,that term as used in the act of 1875, otherwise not. 'i ' , ' According to the stated it is simply'necesllary to ascertain whetherit does by the complaint affirmatively and positively appear that any right, title, or interest,of eitherparty will be defeated by giving a construction to any statute different from what such party c6hcedes to be the true construction. While itis undoubtedly true thatin settling the issues, in ruling upon the admissil!>ilityofevidence, and in instructing tbejury the court must be guided by the statutes of the United States to some extent, and the court must give effect to the true nieaning of the words and phrases of the statutes,-that is, interpret thelO,-still I have not been able, with the utmost effort, to discover from the allegations of this complaint that any right, title, or interest will or can be defeated byaconstruction of. the laws of the United States different fromwhat ·both parties admit to be true and right. The points of difference as stated in the complaint are in every instance either apparentlynot'vital to the case, or ences upon questions of fa:et purely, or, at most, differences upon questions of mixed law and fact,which may be decided by a jury from the evidence, in accordance with rulings and instructions of the court, not invblvipg a decision upon any,contested point. By the rule announced in the decision of the court last resort above refehed to, as well as the precedents found in the decisions of the circuit judge of tbeninth' judiCial circuit, I am constrained to sustain the demurrer. . Traftrm v. 'Nougues,4 Sawy.. 178; McFadden v'. Robinson, 22 Fed. Rep. 10; Hambleton v. Duham, Id. 465 v. Ireland, 27 FelL Rep. 769, 11 Sawy.512; Austinv. Gagan, 39 Fed. Rep. 626.. See, also, State v. Railway 00., 33 Fed. Rep; 394, in which Judge·SHIRAS pointedly says: "The jurisdictionaf this court; either byoriginal'process or by removal, in the class of cases Und&r consideration, depends solely upon the fact that the controversy between the parties for its final determination, the con_
structionof some ptovision' of thecomititution, lllws, treaties of the United case, in such States, and the aiJ>plicationtheretlf totbe sense that the rulingth,UBW;I,Qe willmateriaHy' fl:lfect ,the conclusion l'eached upon the controversy between adversary parties to tl1e'Jitigation. Unlesp from the record it clearly appears that the federal question must be met and decided before the issue or issues in the particular cause can be finally disposed of, it cannot be said that the matter in dispute arises under the constitution or laws of the United States, Within the meaning of the
A decision by Justice BREWER in the case of Cheesman v. Shreve, 37 Fed. Rep. 36; in a .casevfiry:similar to the bne at bSI',has been cited as an authority supporting the opposite contention. From the brief report of the facts conSidered by the court ill that case'! am not able to say whether it conflicts with the oft-:repeated decisions of, Judge SAWYER or, l1Qt; but, even if. it does, I shouLd feel bound to give greater weight to the decisions of the whoi'ifnowpresent,w()uld be entitled to and acyord ii1g )g"wnose p,pinion the judgment herein would be entered, even if I should hold to the contrary. Let a judgment be entered herein sustaining thedtli:nurrer, and dis-' missing the case for want of jurisdiction.
BLUEBIRD MIN. Co., Limited.
'Oourt, D. Montana. February 4, 1891.)
TRAN8FBR OF CAUSIlS FROM TIlRRlTORIAL COURTS.
A written request to transfer a cause which was pending in a territorial court 1;0 the' United- States circuit court for tbe district of Montana, not filed until after the . parties bave voluntarily appeared in a state court and contested a motion in the case, and after compHance with an order made by the state court, is too late to be eifective in transferring the cause to the circuit court. (SylLabU8 by th6 OO'Urt.)
In Equity. Wm. Scailmt and F. w.eole, for plaintiff. Vaik Wolcott, W. JVo Dixon, M. Kirkpatrick, and Forbis
HANFoRD,J. This casa is in all material respects similar to the case of Murray v. Mining Co., ante, 385, Uust disposed of,) and mUllt takB the same' course. True, it is contended that the facts are different £01 that the plaintiff, upon: 'Whose petition the order; to transfer the case was made, was not the'IDoving party in any other proceeding in the state court. The record shows, however, that he ·did voluntarily appear in the state court, and resist a motion to rE'quire hifu' to give additional security against damages' hy reason of 'an' ,injunctiOti granted by the territorial court; and that in obedience to the order of the state court he did aftel'Wsrds file therein ana.dditional bond: . Upon familiar principles, by thus voluntarily appearing and contesting a point in thesta:tecourt,