This Court exercises appellate jurisdiction only i accordance
with the acts of Congress on that subject.
When the original jurisdiction of a circuit court of the United
States is invoked upon the sole ground that the determination of
the suit depends upon some question of a federal nature, it mast
appear at the outset, from the pleadings, that the suit is one of
that character of which the circuit court could properly take
cognizance at the time its jurisdiction is invoked.
When the jurisdiction of a circuit court is invoked solely on
the ground of diverse citizenship, the judgment of the circuit
court of appeals is final, although another ground for jurisdiction
in the circuit court may be developed in the course of subsequent
proceedings in the case.
This was an action in ejectment brought by John Turck against
the Colorado Central Consolidated Mining Company, December 2, 1885,
in the Circuit Court of the United States for the District of
Colorado. The complaint alleged:
"First. That plaintiff is a resident and citizen of the State of
Colorado; that the Colorado Central Consolidated Mining Company,
defendant, is a corporation organized and existing under and by
virtue of the laws of the State of New York; that the amount in
dispute in this action exceeds the sum of $500, exclusive of
costs."
"Second. Plaintiff further alleges that upon the 1st day of
January, A.D. 1885, he was the owner of, seised in fee, and
entitled to the possession of, a certain lode mining claim and
premises, situate in Argentine mining district, Clear Creek County,
Colorado, described as follows, to-wit:"
"The Aliunde Tunnel lode No. 2, with all the dips, spurs,
angles, and variations of said lode throughout their entire length
and depth, and all other lodes, veins, lodges, or deposits of
mineral the top or
Page 150 U. S. 139
apex of which lies inside of said Aliunde Tunnel lode No. 2, as
patented to John Turck by certain letters patent of the United
States, dated the 31st day of January, A.D. 1883, which lode,
mining claim, and premises are described in said patent as 'Mineral
Entry No. 1,862' in the series of the United States land office at
Central City, Colorado, and designated by the surveyor general of
the State of Colorado as 'Survey Lot No. 1,494,' which lode is
fifteen hundred feet in length, by one hundred and fifty feet in
width."
"Third. That said Aliunde Tunnel lode No. 2 has a pitch to the
northwest of about sixty degrees from a horizontal; that the top
and apex of said lode lie within the side and end lines of said
Aliunde Tunnel lode No. 2; that, owing to the dip of said lode to
the northwest at a depth of about three hundred feet beneath the
surface of the ground, said Aliunde Tunnel lode No. 2 passes under
the north side line of said patent, and enters the land adjoining;
that, while plaintiff was so seised and possessed of said Aliunde
Tunnel lode No. 2, the defendant afterwards, and on the 1st day of
January, A.D. 1885, wrongfully entered upon and ousted the
plaintiff from about four hundred feet of said Aliunde Tunnel lode
No. 2 mining claim and premises next hereinafter described, and now
wrongfully withholds the same from plaintiff; that is to say that
said defendant wrongfully ousted the plaintiff from so much of said
Aliunde Tunnel lode No. 2 mining claim and premises as lies beneath
the depth of three hundred feet beneath the surface of the ground
north of the north side line of said Aliunde Tunnel lode No. 2,
carrying said north line down vertically, and from thence on the
pitch of said lode northwesterly, and measuring thence along the
line of said Aliunde Tunnel lode No. 2 a distance of four hundred
feet next west of the northeast end line of said claim."
That plaintiff owned the property in fee, and was entitled to
possession, and that the value of the rents, issues, and profits,
"while said plaintiff has been excluded therefrom by the
defendants, amounts to two hundred and fifty thousand dollars."
Wherefore judgment was demanded for possession, damages, and
costs.
Page 150 U. S. 140
The defendant answered by a general and special denial, and for
a second defense said:
"1. That it is, and ever since the 15th day of December, A.D.
1879, it hath been, the owner and seised in fee and in the actual
possession of the Colorado Central lode mining claim survey, lot
No. 261, being a lode mining claim 1,500 feet in length by 50 feet
in width, and of all lodes the tops or apexes of which may be found
within the lines of said survey lot No. 261."
"2. That said Colorado Central lode mining claim was entered for
patent, and patented by the United States to the grantors of
defendant before said date, and long before the real or pretended
discovery, location, or patenting of said Aliunde Tunnel lode No.
2."
"3. That said Colorado Central lode mining claim lies
immediately to north of and adjoining the survey lot of said
Aliunde Tunnel lode No. 2, and that whatever vein the defendant has
worked on is the vein of the Colorado Central lode, or some vein
having its top or apex within the side lines of said survey lot No.
261, and not within the side lines of the survey lot of said
Aliunde Tunnel lode, No. 2."
And by the fourth paragraph, defendant denied that it wrongfully
withheld possession from plaintiff of the Aliunde lode, or any vein
having its apex within the side lines thereof.
Plaintiff replied to this second defense, denying the
defendant's ownership in the Colorado Central lode to the extent
averred; admitting the second paragraph of the answer that the
Colorado Central lode was patented before discovery and patent of
the Aliunde, and that the two lodes lay adjoining each other; but
denying that the Aliunde lode was a part of the Colorado Central
lode, and that the vein of the plaintiff had its top or apex within
the side lines of the Colorado Central lode at any point claimed by
the plaintiff, and denying that defendant had not wrongfully
withheld possession.
The case went to trial, and resulted in a verdict for the
plaintiff, and judgment thereon, which was set aside on payment of
costs, under the local statute, and a second trial was had with the
same result. Certain exceptions were taken by
Page 150 U. S. 141
the defendant to parts of the charge of the court and to the
refusal to give certain instructions requested. The case was taken
by writ of error to the United States Circuit Court of Appeals for
the Eighth Circuit, and the judgment was affirmed, May 8, 1892. A
petition for rehearing was filed during the term, which was denied
February 18, 1893, and thereupon a writ of error was allowed to
this Court.
The opinions of the circuit court of appeals will be found in 50
F. 888, and 54 F. 262.
The case was submitted on motion to dismiss or affirm.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
From
Wiscart v.
Dauchy, 3 Dall. 321, to
American Construction
Co. v. Jacksonville &c. Railway Co., 148 U.
S. 372, it has been held in an uninterrupted series of
decisions that this Court exercises appellate jurisdiction only in
accordance with the acts of Congress upon that subject.
By the Judiciary Act of March 3, 1891, it is provided that the
review by appeal, by writ of error, or otherwise from existing
circuit courts shall be had in this Court or in the circuit courts
of appeals thereby established, according to the provisions of the
act regulating the same. The writ of error in this case was brought
under section six of that statute, which provides that
"judgments or decrees of the circuit courts of appeals shall be
final in all cases in which the jurisdiction is dependent entirely
upon the opposite parties to the suit or controversy being aliens
and citizens of the United States or citizens of different
states,"
and also that
"in all cases not hereinbefore, in this section, made final
there shall be of right an appeal or writ of error or review of the
case by the Supreme Court of the United States where the matter in
controversy shall exceed one thousand dollars besides costs."
26 Stat. 826, 828, § 6, c. 517.
Page 150 U. S. 142
If the judgment of the Circuit Court of Appeals for the Eighth
Circuit was final, under the section in question, then this writ of
error must be dismissed, and in order to maintain that the decision
of the circuit court of appeals was not final it must appear that
the jurisdiction of the circuit court was not dependent entirely
upon the opposite parties being citizens of different states.
Under the Act of March 3, 1875, 18 Stat. 470, c. 137, circuit
courts of the United States had original cognizance of all suits of
a civil nature at common law or in equity; among others, where the
matter in dispute exceeded, exclusive of costs, the sum or value of
$500, and arising under the Constitution or laws of the United
States, or in which there was a controversy between citizens of
different states.
This complaint was filed December 2, 1885, and alleged the
diverse citizenship of the parties as the ground of jurisdiction.
But it is said that the vital question raised in the case was
whether the patentee of a lode claim, whose discovery and patent
were later than the date of another's patent, may follow his junior
patented lode, the apex thereof being within his side lines, into
the other's patented ground on the dip, and that the solution of
this question depended upon the construction and application of
section 2322 of the Revised Statutes, concerning the dip and apex
of lodes Hence, that the suit really and substantially involved a
controversy only to be determined by reference to the federal
statute, and that jurisdiction existed on that ground and did not
depend entirely upon the other.
To maintain this proposition, it is contended that reference may
be made to the entire pleadings, the evidence, or the rulings of
the courts below.
This view, however, ignores the settled doctrine that the
inquiry, in cases such as this, into the jurisdiction of the
circuit court, is limited to the facts appearing on the record in
the first instance. This has been often so held in the enforcement
of the inflexible rule which requires this Court in the exercise of
its appellate power to deny the jurisdiction
Page 150 U. S. 143
of courts of the United States in all cases where such
jurisdiction does not affirmatively appear in the record on which
it is called upon to act.
And we do not think we can do better in elucidation of the rule
than quote from the opinion of the court in
Metcalf v.
Watertown, 128 U. S. 586,
128 U. S. 588,
where the subject is considered and the authorities cited.
�It has been often decided by this Court," said MR.
JUSTICE HARLAN, by whom that opinion was delivered,
"that a suit may be said to arise under the Constitution or laws
of the United States, within the meaning of that act (18 Stat. 470.
c. 137), even where the federal question upon which it depends is
raised for the first time in the suit by the answer or plea of the
defendant. But these were removal cases in each of which the
grounds of federal jurisdiction were disclosed either in the
pleadings or in the petition and affidavit for removal; in other
words, the case, at the time the jurisdiction of the circuit court
of the United States attached by removal, clearly presented a
question or questions of a federal nature.
Railroad Co. v.
Mississippi, 102 U. S. 135,
102 U. S.
140;
Ames v. Kansas, 111 U. S.
449,
111 U. S. 462;
Pacific
Railroad Removal Cases, 115 U. S. 1,
115 U. S.
11;
Southern Pacific Railroad Co. v.
California, 118 U. S. 109,
118 U. S.
112. Besides, the right of removal under the act of 1875
could not be made to depend upon a preliminary inquiry as to
whether the plaintiff had or had not the right to sue in the state
court of original jurisdiction from which it was sought to remove
the suit. When, however, the original jurisdiction of a circuit
court of the United States is invoked upon the sole ground that the
determination of the suit depends upon some question of a federal
nature, it must appear at the outset, from the declaration or the
bill of the party suing, that the suit is of that character -- in
other words, it must appear in that class of cases that the suit
was one of which the circuit court at the time its jurisdiction is
invoked, could properly take cognizance. If it does not so appear,
then the court, upon demurrer or motion or upon its own inspection
of the pleading, must dismiss the suit; just as it would remand to
the state court a suit which the record at
Page 150 U. S. 144
the time of removal, failed to show was within the jurisdiction
of the circuit court. It cannot retain it in order to see whether
the defendant may not raise some question of a federal nature upon
which the right of recovery will finally depend; and, if so
retained, the want of jurisdiction at the commencement of the suit
is not cured by an answer or plea which may suggest a question of
that kind."
The jurisdiction of the circuit court was invoked December 2,
1885, by the filing of the complaint from which it appeared that
the suit was one of which cognizance could be properly taken on the
ground of diverse citizenship, but it did not appear therefrom that
jurisdiction was rested, or could be asserted, on any other ground.
The federal question now suggested did not emerge until the
defendant set up its second defense, and not then unless deducible
from the bare averment that it claimed under the senior discovery
and patent, which was admitted in the replication.
The proposition that the right given by section 2322 of the
Revised Statutes to the holder of the apex to follow his vein on
its dip outside of the side lines of his claim is merely a right
against an adjoining claimant holding under a junior patent or
certificate was afterwards advanced in certain instructions
requested by defendant and refused.
The jurisdiction had, however, already attached, and could not
be affected by the subsequent developments. It depended entirely
upon diverse citizenship when the suit was commenced, and to that
point of time the inquiry must necessarily be referred.
If the plaintiff had invoked it on two distinct grounds, one of
them being independent of diverse citizenship, a different question
might have been presented.
We are of opinion that the judgment of the circuit court of
appeals was final under the sixth section, and that the writ of
error cannot be maintained.
Writ of error dismissed.
