To give the Circuit Court jurisdiction under section 1 of the
Act of March 3, 1887, as corrected by the Act of August 13, 1888,
federal questions must appear necessarily in the statement of the
plaintiff's cause of action, and not as mere allegations in the
plaintiff's bill of the defense which the defendants intend to set
up or which they rely upon. And if it further appear from
defendant's answer that no such defense is set up, no jurisdiction
exists to try questions not of the kind coming within the statute,
and the Circuit Court should dismiss the bill for want of
jurisdiction.
In order for a party in possession to maintain a bill of peace
for the purpose of quieting his title to land against a single
adverse claimant ineffectually seeking to establish a legal title
by repeated actions of ejectment, it is necessary for the bill to
aver that complainant's title has been established by at least one
successful trial at law, and where it appears from the bill that an
action at law involving the same questions has been commenced, but
has not been tried, it is a fatal defect.
To maintain a bill of peace in the federal courts, there must be
an allegation that the complainant is in possession or that both
parties are out of possession.
The appellant in this case (being the complainant below) has
brought it to this Court by an appeal from the judgment of the
Circuit Court of the United States for the District of Montana
dismissing its complaint and ordering judgment for the defendants
on the ground that the court had no jurisdiction of the action. A
decree having been entered in accordance with the direction of the
court dismissing the bill, the circuit court has certified to this
Court the question of jurisdiction, and whether or not a federal
question is presented in complainant's amended bill and the answer
of the defendant corporation.
Page 188 U. S. 633
The cause of action relates to the ownership of a certain
quantity of copper ore taken and converted by the defendants from
the mining ground alleged to be owned by the complainant. For the
purpose of presenting the question of jurisdiction, the court below
has certified to this Court the amended bill and the answer of the
defendants. The complainant in the bill alleges that it is the
owner and entitled to possession of certain property therein
described, known as and called the Pennsylvania lode mining claim,
lot No. 172, situated in Summit Valley Mining District, County of
Silver Bow, Montana. A full description of the land is given in the
bill. The complainant's title is next set out with much
particularity and detail, from which it appears that the original
source of its title is a United States patent covering the claim,
dated April 9, 1886, issued to persons named therein, from whom the
complainant deraigns title. It is then averred that, on April 1,
1895, defendants wrongfully and unlawfully entered upon
complainant's premises, and from that time on extracted from the
mine large quantities of valuable ores, of the reasonable value of
$500,000, and that they have continued to extract and mine ores
from the premises belonging to the complainant, and are now mining
and extracting ores therefrom and threatening to continue to do so
unless enjoined by the court.
The land which the complainant claims to own is valuable almost
exclusively for the copper, silver, and gold ores which are found
there in large quantities, and it is these ores that the defendants
have extracted and are threatening to continue to extract in the
future.
It is averred that the complainant has no means of ascertaining
the quantity or value of the ores which the defendants have
extracted or may hereafter extract from such premises, and if the
defendants are permitted to continue to extract such ores, it will
be altogether uncertain and indefinite as to what the amount or the
value of such ores may be, and the complainant will be compelled to
rely to a great extent on the defendants as to such amount and
value; that, unless the defendants are enjoined and restrained from
taking the ores, the complainant will be required to bring numerous
actions for the determination
Page 188 U. S. 634
of the damages it has from time to time sustained by reason of
such trespasses, which are continuing on the part of the
defendants. Therefore the complainant brings this suit in order to
avoid a multiplicity of suits in the premises, and by reason of the
trespasses of the defendants and their threatened continuance the
complainant has suffered and will suffer great and irreparable
injury and damage unless the defendants are enjoined from further
trespass, as prayed for.
This is the complainant's cause of action, as set forth in the
bill, regarding the trespass and the injury inflicted and the
difficulty of proof thereof and the prevention of a multiplicity of
suits.
The complainant then further averred in the bill, for the
purpose, as therein stated, of showing the jurisdiction of the
court to determine the matters set forth in such bill, that the
determination of the controversy between the parties involved the
construction of the mining laws of the United States; that the
property of the complainant is a mining claim and has been patented
as such under the provisions of the Revised Statutes of the United
States relating to mines and mineral lands; that the defendants
owned a portion of certain properties called the Rarus lode claim,
lot No. 179; the Johnstown lode claim, lot No. 173, and the Little
Ida lode claim, lot No. 126, which claims lie north of and
partially adjoining and near to the Pennsylvania lode claim, owned
by the complainant.
It is further stated that the various claims which are and will
be made by the defendants as to their rights in complainant's mine
by reason of their ownership of the other mines above mentioned are
without foundation, yet, nevertheless, they will be urged as a
defense to the cause of action set forth in the bill of complaint,
and the claims of defendants are denied and disputed, as are also
the facts upon which the defendants base their defense, and the law
arising from the same, and complainant adds
"that it disputes each and every one of the claims made by the
defendants, relative to the construction of said several patents,
and it [complainant] claims that all veins whose apexes lie within
the Johnstown patent must be governed and regulated in extralateral
rights, if any they have, under the
Page 188 U. S. 635
Johnstown patent, and not under or by virtue of the Rarus
patent."
The complainant also averred
"that the said defendants contend and claim that the complainant
cannot under any circumstances obtain any relief for ores extracted
within that portion of the premises owned by it, without first
showing that the apices of the veins from which the ores were
extracted are within the surface lines of the ground owned and
claimed by the complainant, whereas your orator claims that
prima facie it is the owner of all ores found within its
boundaries extended downward into the earth, until it has been
shown that some other person or company has some right thereto by
reason of ownership of the apex of the vein within some other
claim."
The complainant further stated its right to enjoin defendant
from mining ore beneath the ground of complainant, because no vein
having its apex in the defendant's claim passes in its strike
through the end lines thereof so as to confer extralateral
rights.
And finally:
"Wherefore, your orator shows to your honors that there is
involved in the matters in controversy, between your orator and the
said defendants, the numerous questions aforesaid, involving the
construction of the statutes of the United States relative to
locating, purchasing, and patenting of mineral lands and the
construction of the statutes relative to the right of one claimant
to follow veins down to and into the premises of another, under the
circumstances and situation of the parties as hereinbefore set out,
and also the construction of the said statutes in relation to
patenting of claims and whether the vein can be patented to one
person and the surface to another, and to the right of the Land
Department to segregate the surface from the mineral in the ground,
granting one to one person and the other to another, and as to
whether said action is authorized under and by virtue of said
statutes, and also as to whether, when an apex of a vein is divided
upon the surface, part being within the premises granted in one
patent and a part within another, as to what, if any, extralateral
rights are granted under such circumstances to either party."
The answer of the defendants is also set forth in the
certificate of the court below, in which the defendants deny that
they
Page 188 U. S. 636
wrongfully or unlawfully entered the premises of the complainant
or that they took out any amount of ore belonging to the
complainant from that mine, and deny that the defendants ever mined
or extracted ores from premises belonging to the complainant, or
threatened to do so; also deny the averments as to the value of the
ore as set forth in the bill. Defendants also deny that the
determination of the controversy between the parties involves a
construction of the mining acts of the United States, or the
construction of any statute of the United States whatever. They
admit that the Rarus and the Johnstown lode claims are mineral
claims, located under the laws of the United States, and that the
same have been patented under those laws, and that the defendants
own a portion of the lode called the Rarus lode claim. The
defendants also assert that they are the owners of a certain parcel
of ground within the Johnstown lode claim, and also the owners of
that portion of the Pennsylvania lode claim thereafter described,
and they claim the right to enter upon the premises of the
complainant, namely, that portion of the Pennsylvania lode claim
described in its amended bill of complaint, by reason of the fact
that certain veins owned and claimed by the defendants and in their
possession have their dip or apices within the Johnstown lode
claim, lot No. 173, and that portion thereof owned by the
defendants, and that the defendants assert the right to follow such
veins on their downward course or dip, although the same so far
depart from a perpendicular as to depart from the said Johnstown
lode claim and from that portion thereof claimed by the defendants,
and enter the premises owned and claimed by the complainant,
namely, that portion of the Pennsylvania lode claim described in
its amended bill of complaint. But the defendants deny that they
claim the right to enter complainant's premises by reason of the
fact that any veins owned or claimed by them or in their possession
have their top or apices within the Rarus lode claim or in that
portion thereof owned by the defendants, or by reason of the fact
that the same have their top or apices within the Little Ida lode
claim or any portion thereof, and deny that the defendants assert
the right or any right to follow such veins on their downward
course or dip, although the same so far depart
Page 188 U. S. 637
from a perpendicular as to depart from said Rarus lode claim,
and to enter the premises claimed by the complainant, and deny that
they assert or claim the right to enter the premises of the
complainant by reason of the fact that any veins owned or claimed
by the defendants have their top or apices in said lode claim or
any part thereof, but alleges that the defendants claim the right
to enter the premises of the claimant by reason of the fact that
certain veins have their top or apices within that portion of the
Johnstown lode claim owned by the defendant, or that they assert
the right to follow such veins on their downward course or dip,
although the same so far depart from a perpendicular as to depart
from the Johnstown lode claim and from the portions thereof owned
by the defendants, and enter the premises of the complainant.
It was further averred in the answer
"that in this action it makes no claim of any right under the
Rarus patent to enter upon the veins within the ground claimed or
owned by the complainant, but that it asserts its right to do so by
reason of its ownership of a portion of the Johnstown lode claim,
and the fact that the top or apices of the veins or lode in
question are within said portion of the Johnstown lode claim."
It also
"denies that in this action it contends or claims that only the
surface ground of the Johnstown claim was patented to the patentees
named therein, or that all or any veins lying within the original
location lines of the Rarus claim were patented to the claimant
under the Rarus claim; . . . but defendant alleges that it contends
and claims in this action, and insofar as this controversy between
complainant and defendant is concerned, that its extralateral
rights to the veins in question should be determined by its
ownership of that parcel of ground now included within the
Johnstown claim, and not by the Rarus, for the reason that said
veins or lodes have their tops or apices within the said parcel of
ground owned by defendant."
Various other denials were made, from which it appears that the
only claim made by the defendants in this action is by virtue of
their ownership of the Johnstown lode claim. The defendants by this
answer therefore admit the averments in the bill that their rights
must be governed and regulated in this action by reason of their
ownership of the Johnstown patent, and not by virtue of the Rarus
patent, and as to those rights the complainant claims that the
course of the vein cannot be followed because of the nature of the
ground.
Page 188 U. S. 638
MR. JUSTICE PECKHAM, after making the foregoing statement of
facts, delivered the opinion of the Court.
It is quite plain that the various averments contained in the
complainant's bill for the purpose of showing jurisdiction in the
circuit court are wholly unnecessary in order to make out
complainant's cause of action for the conversion of ore by the
defendants on premises belonging to complainant. To make out a
prima facie case on the part of complainant, so far as its
right to the ore in question is concerned, all that was necessary
was to show the patent and the complainant's possession under it,
and from such patent and possession the presumption would be that
the complainant was the owner of all ores found within the
boundaries contained in the patent extended downward into the
earth, and the burden would then rest upon the defendants to show
that, notwithstanding such presumption, they had the right to enter
upon and take the ore from the ground within the limit described in
the patent under which the complainant derives title. It could then
prove facts to sustain its averments in regard to ascertaining the
quantity and value of the ores which the defendants were extracting
or might extract from the complainant's premises, and that it would
be altogether uncertain and indefinite as to what amount of ores or
the value thereof the defendants might extract in the future, and
that the complainant would be compelled to rely upon the good faith
and showing of the defendants as to the amount and value of the
ores which they had theretofore extracted and might thereafter
extract from the premises. Indeed, the complainant asserted in the
bill, an extract from which is contained in the foregoing
statement, that
prima facie it is the owner of all ores
found within its boundaries extended downwards into the earth,
until the contrary has been shown. It would be wholly unnecessary
and improper, in order to prove complainant's cause of
Page 188 U. S. 639
action, to go into any matters of defense which the defendants
might possibly set up, and then attempt to reply to such defense,
and thus, if possible, to show that a federal question might or
probably would arise in the course of the trial of the case. To
allege such defense and then make an answer to it before the
defendant has the opportunity to itself plead or prove its own
defense is inconsistent with any known rule of pleading so far as
we are aware, and is improper.
The rule is a reasonable and just one that the complainant in
the first instance shall be confined to a statement of its cause of
action, leaving to the defendant to set up in his answer what his
defense is, and, if anything more than a denial of complainant's
cause of action, imposing upon the defendant the burden of proving
such defense.
Conforming itself to that rule, the complainant would not, in
the assertion or proof of its cause of action, bring up a single
federal question. The presentation of its cause of action would not
show that it was one arising under the Constitution or laws of the
United States.
The only way in which it might be claimed that a federal
question was presented would be in the complainant's statement of
what the defense of defendants would be, and complainant's answer
to such defense. Under these circumstances, the case is brought
within the rule laid down in
Tennessee v. Union & Planters'
Bank, 152 U. S. 454.
That case has been cited and approved many times since, among the
latest being
Arkansas v. Kansas &c. Railroad,
183 U. S. 185,
where it was stated by MR. CHIEF JUSTICE FULLER, speaking for the
Court, at p.
183 U. S. 188,
as follows:
"Hence, it has been settled that a case cannot be removed from a
state court into the circuit court of the United States on the sole
ground that it is one arising under the Constitution, laws, or
treaties of the United States unless that appears by plaintiff's
statement of his own claim, and if it does not so appear, the want
of it cannot be supplied by any statement of the petition for
removal or in the subsequent pleadings. And moreover, that
jurisdiction is not conferred by allegations that defendant intends
to assert a defense based on the Constitution
Page 188 U. S. 640
or a law or treaty of the United States, or under statutes of
the United States or of a state, in conflict with the
Constitution."
See also Blackburn v. Portland &c. Co.,
175 U. S. 571;
Shoshone &c. Co. v. Rutter, 177 U.
S. 505.
The test of the right of removal is that the case must be one
over which the circuit court might have exercised original
jurisdiction under section 1 of the Act of March 3, 1887, as
corrected by the Act of August 13, 1888, 24 Stat. 552; 25 Stat.
433. The cases hold that to give the circuit court original
jurisdiction the federal question must appear necessarily in the
statement of the plaintiff's cause of action, and not as mere
allegations of the defense which the defendants intend to set out,
or which they rely upon.
Third Street Railway Company v.
Lewis, 173 U. S. 457.
It is urged, however, on the part of the complainant that its
averments in regard to the jurisdiction of the court are necessary
to be set forth as a part of its cause of action, and that they
show that the appellees are questioning complainant's title and
interfering with its enjoyment of its property right by asserting
ownership to a portion of such claim of complainant based upon two
government patents issued for the Rarus and Johnstown claims,
respectively, and although such assertion of ownership of the
appellees is, as complainant avers, without legal foundation, yet,
for reasons stated in the bill, the consideration of which
necessitates an examination of federal questions, the case is in
effect one to quiet complainant's title or to prevent an
interference with its rights and property, and complainant avers
that the allegations of jurisdiction relate to its cause of action;
that they state the controversy existing between the parties as to
its subject matter not as anticipatory of the defense, but as
establishing the complainant's right to have its title quieted.
But it is plain that the suit is not in truth a suit to quiet
title. There is a cause of action alleged that is not founded upon
any such theory, to prove which it is not necessary or proper to go
into the defendants' title or to anticipate its defense to the
cause of action alleged by the complainant. What is thereafter said
is for the purpose of showing jurisdiction in the federal
Page 188 U. S. 641
court, not over an equitable cause of action in the nature of a
bill to quiet title, but over a cause of action arising out of the
laws of the United States, and the various mining laws of the
United States are cited to show the truth of the assertion. It is
also clear that jurisdiction in a federal court cannot be
predicated in this case upon an assertion that it is brought to
prevent a multiplicity of suits. Even then, the complainant's proof
in the first instance would remain the same as already stated. The
frequent trespasses, as alleged, of the defendants, by reason of
which an equitable remedy by injunction is sought, might exist, and
still it would not necessarily appear from the complainant's proof
that the defendant's justification arose by reason of an alleged
right under the Constitution or laws of the United States. That
might appear in the defense, but would constitute no cause of
action by complainant.
If, however, the bill is to be looked upon as one in the nature
of a bill of peace or to quiet title, it is fatally defective in
that aspect. There are two distinct kinds or classes of bills of
peace, or bills to quiet title, the one brought for the purpose of
establishing a general right between a single party and numerous
persons claiming distinct and individual interests, the other for
the purpose of quieting complainant's title to land against a
single adverse claimant. In the second class, the suit can be
maintained by a party in possession against a single defendant
ineffectually seeking to establish a legal title by repeated
actions of ejectment, and in such case it is necessary to aver that
the title of complainant has been established by at least one
successful trial at law before equity will entertain jurisdiction.
3 Pom.Eq. Jur.2d ed. § 1394, note 3, and 1 Pom.Eq. Jur. §
246.
This bill evidently would come under the second of these
classes, and it is defective in not containing an averment that the
complainant's title has been at least once successfully tried at
law. On the contrary, it appears from the bill itself that an
action at law has been commenced involving the same questions, but
has not been tried.
It is also objected that, as a bill of peace or to quiet title,
it is defective, because there is no allegation that the
complainant was in possession, which is necessary in such a bill.
If not in
Page 188 U. S. 642
possession, an action of ejectment would lie. The contention
that, under the Code of Montana, a person not in possession may
maintain an action to quiet title cannot prevail in a federal
court.
Whitehead v. Shattuck, 138 U.
S. 146.
The complainant fails on both these grounds to show that its
bill is sufficient as one to quiet its title, and it therefore
fails to show that the case is not covered by the
Union &
Planters' Bank and other cases above cited. If the bill do not
contain facts sufficient to constitute it a bill to quiet title,
all the averments as to defendants' claims as defenses, and
complainant's answers thereto, are only material for the purpose of
showing that the defense may disclose facts which will show a case
arising out of the mining laws of the United States. But this would
not constitute complainant's cause of action.
But, assuming for this purpose (what is otherwise denied) that
the bill is sufficient to confer jurisdiction, it is so only
because of its averments as to the defense to be made by the
defendants to the complainant's cause of action. When we come to
examine their answer, we find that defendants disclaim any right
under the patent for the Rarus lode claim, and confine their
alleged rights to such as exist by virtue of their ownership of the
Johnstown lode claim only. Defendants' claim of right to follow the
veins which they aver have their top or apices in the Johnstown
patent is denied by complainant. It sets up in the bill that it
denies and disputes the fact that the veins upon which defendants
have mined in the claim of complainant, even if such veins had
their apices in defendants' ground (which complainant does not
admit), are yet such veins as can be followed on their dip beyond
the lines of defendants' possessions into the ground of
complainant, and complainant alleges that the veins are broken and
intersected by faults in such a manner that the same cannot be
traced or followed from the ground of defendants into that of the
complainant, and therefore defendants have no right to enter upon
the ground of complainant for the purpose of extracting ores
therefrom by reason of their ownership of the apices of any veins
within their ground. There is the further fact alleged that the
veins, if any, which have their
Page 188 U. S. 643
apices in defendants' claim, do not pass in their strike through
the end lines of defendants' claim. This alleged inability to
follow the veins, assuming that they apex in the defendants'
Johnstown patent, and the allegation as to the veins not passing
through end lines, are mere questions of fact, depending upon the
proof as to the truth of those averments. This does not constitute
a question arising out of the Constitution or laws of the United
States. The answer, by its denials and disclaimers as to what it
sets up by way of defense, takes away a defense which might show
the case as arising under such Constitution or laws.
Complainant contends, however, that, if a case of jurisdiction
is made out by the bill, the court is not ousted thereof by
whatever is set up in the answer. In this case, the contention
cannot be maintained. The only foundation for the alleged
jurisdiction consists of the averments of complainant relative to
the contention of the defendants as to their defense. Now if it
appear from the answer of defendants that no such claim as is
necessary to give the court jurisdiction is in fact made, but, on
the contrary, is disclaimed and denied, then the basis of
jurisdiction fails and the court cannot proceed. This is so held in
Robinson v. Anderson, 121 U. S. 522,
121 U. S. 524.
In that case, Mr. Chief Justice Waite, speaking for this Court and
delivering its opinion, said:
"Even if the complaint, standing by itself, made out a cause of
jurisdiction, which we do not decide, it was taken away as soon as
the answers were in, because if there was jurisdiction at all, it
was by reason of the averments in the complaint as to what the
defenses against the title of the plaintiffs would be, and these
were of no avail as soon as the answers were filed and it was made
to appear that no such defenses were relied on."
See also Crystal Springs &c. Co. v. Los Angeles, 82
F. 114,
aff'd, 177 U. S. 177 U.S.
169.
Jurisdiction in this class of cases must be based upon the fact
that the case is one arising under the Constitution or laws of the
United States. If it appear to be such in the plaintiff's pleading
simply because of the allegations as to what the defenses are on
the part of the defendant, if, when the answer
Page 188 U. S. 644
come in it is seen that no such defense in fact is set up or
insisted upon, it is then seen that no such case exists as stated
in the complaint, and no jurisdiction therefor exists to try
questions which are not of a kind coming within the statute, and
the court should then dismiss for want of jurisdiction.
The complainant also objected that the defendants did not
properly or effectively disclaim or deny the allegations of the
complainant's bill.
In relation to the evasive character of the answer, it was
stated by Circuit Judge Gilbert in 93 F. 274, in regard to this
case, as follows:
"It is objected that the denials of the answer do not fully and
explicitly traverse the new averments of the amended bill, but that
they are denials only that the defendant relies in 'this action'
upon the alleged rights and claims, and that the defendant
disclaims only for the purpose of this present suit, without
waiving its right to assert such claims in some other suit or
proceeding hereafter. No exception, however, was taken to the
answer for insufficiency. It was accepted as responding to the
allegations of the amended bill. We think it was properly so
accepted. If, in view of some possible other action affecting other
interests, the defendant has attempted to reserve the privilege to
assert other rights under the Rarus patent, it is immaterial to the
present controversy. It is only to the rights asserted by the
complainant in this suit that the defendant must make answer. It is
required to make its defense to the allegations of the bill, and to
show cause why the relief prayed for should not be decreed. It has
answered as to its rights to extract the ores in question. It says
that it claims nothing by virtue of the Rarus patent, but that it
relies solely upon the fact that the ores it has taken belong to a
vein which has its apex in the Johnstown lode claim, and in its
strike passes through the end lines of said claim, and in its
downward course extends beneath the surface of the complainant's
claim. Upon such a bill and such an answer, all questions
concerning the right of the defendant to mine the ores in
controversy are determinable, and the decree, if against the
defendant, would be as effective to bar it from hereafter
asserting
Page 188 U. S. 645
rights under the Rarus patent as would be a decree upon any
other form of answer."
We concur in the views thus expressed, and the result of the
whole case is that the complainant failed to show any jurisdiction
in the Circuit Court to try this case, and the order of the Circuit
Court dismissing complainant's bill and giving judgment for the
defendant is therefore
Affirmed.
