Opinion of the Court. torial limits, and this clause declares "that no person shall be arrested in one district for trial in another in any civil action before a Circuit or District Court; and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." In the case before us, one of the plaintiffs is a citizen of the State where the suit is brought, namely, the State of Missouri, and the defendant is a citizen of the State of Texas. But one of the plaintiffs is a citizen of the State of Arkansas. The suit, so far as he is concerned, is not brought in the State of which he is a citizen. Neither as plaintiff nor as defendant is he a citizen of the district where the suit is brought. The argument in support of the error assigned is that it is sufficient if the suit is brought in a State where one of the defendants or one of the plaintiffs is a citizen. This would be true if there were but one plaintiff or one defendant. But the statute makes no provision, in terms, for the case of two defendants or two plaintiffs who are citizens of different States. In the present case, there being two plaintiffs, citizens of different States, there does not seem to be, in the language of the statute, any provision that both plaintiffs may unite in one suit in a State of which either of them is a citizen. It may be conceded that the question thus presented, if merely a naked one of construction of language in a statute, introduced for the first time, would be one of very considerable doubt. But there are other considerations which must influence our judgment, and which solve this doubt in favor of the proposition that such a suit cannot be sustained. The original judiciary act of 1789, which established the courts of the United States and defined their jurisdiction, declared in reference to the Circuit Courts, in section 11 of that act, 1 Stat. 78, that "the Circuit Courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, Opinion of the Court. where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners; or an alien is a party, or the suit is between a citizen of the State where the suit is brought and a citizen of another State." The construction of this phrase, "where the suit is between a citizen of the State where the suit is brought and a citizen of another State," came before the Supreme Court at an early day in the case of Strawbridge v. Curtiss, 3 Cranch, 267; and Chief Justice Marshall delivered the opinion of the court, which was without dissent, in the following language: "The court understands these expressions" [referring to the words "suit between a citizen of the State where the suit is brought and a citizen of another State"] "to mean that each distinct interest should be represented by persons, all of whom are entitled to sue or may be sued in the federal courts. That is, that where the interest is joint each of the persons concerned in that interest must be competent to sue, or liable to be sued, in the courts of the United States." This construction has been adhered to from that day to this, and, although the statutes have modified the jurisdiction of the court as regards the amount in controversy and in many other particulars, the language construed by the court in Strawbridge v. Curtiss has been found in all of them. This statute, conferring and defining the jurisdiction of Circuit Courts of the United States, has been reënacted and recast several times since the original decision of Strawbridge v. Curtiss. The first of these was the general revision of the statutes of the United States, passed in 1874, in which the language of the statute of 1789 is supposed to be reproduced accurately. But an act of March 3, 1875, 18 Stat. 470, c. 137, undertook to recast the jurisdiction of the Circuit Courts, and its first section, the important one in this connection, contains the same language in regard to the jurisdiction of the court in controversies between citizens of different States, and also the provision that no civil suit shall be brought in either of said. courts by any original process or proceeding in any other district than that whereof he is an inhabitant or in which he Opinion of the Court. shall be found at the time of serving process. The statute remained in this condition until the act of 1887, which we are now considering, as amended by the act of August 13, 1888, 25 Stat. 433. During this period, and since the case of Strawbridge v. Curtiss, this jurisdictional clause has been frequently construed by this court, and that case has been followed. In the case of New Orleans v. Winter, 1 Wheat. 91, the same question arose, and was decided in the same way. In the case of Coal Company v. Blatchford, 11 Wall. 172, Mr. Justice Field, referring to these decisions, states the effect of them in the following language: "In other words, if there are several coplaintiffs, the intention of the act is that each plaintiff must be competent to sue, and if there are several codefendants, each defendant must be liable to be sued, or the jurisdiction cannot be entertained." The question was very fully considered in the case of The Sewing Machine Companies, 18 Wall. 553, where the same proposition is stated in almost identical language. And in the case of Peninsular Iron Company v. Stone, 121 U. S. 631, the Chief Justice reviews all these cases and reaffirms the doctrine as applicable to cases arising under the act of 1875. The statute which we are now construing leaves out the provision that if the party has the diverse citizenship required by the statute he may be sued in any district where he may be found at the time of the service of process. The omission of these words, and the increase of the amount in controversy necessary to the jurisdiction of the Circuit Court, and the repeal of so much of the former act as allowed plaintiffs to remove causes from the state courts to those of the United States, and many other features of the new statute, show the purpose of the legislature to restrict rather than to enlarge the jurisdiction of the Circuit Courts, while, at the same time, a suit is permitted to be brought in any district where either plaintiff or defendant resides. We do not think, in the light of this long-continued construction of the statute by this court during a period of nearly a hundred years, in which the statute has been the subject of Statement of the Case. renewed legislative consideration and of many changes, it has always retained the language which was construed in the case of Strawbridge v. Curtiss, that we are at liberty to give that language a new meaning, when it is used in reference to the same subject matter. It is not readily to be conceived that the Congress of the United States, in a statute mainly designed for the purpose of restricting the jurisdiction of the Circuit Courts of the United States, using language which has been construed in a uniform manner for over ninety years by this court, intended that that language should be given a construction which would enlarge the jurisdiction of those courts, and which would be directly contrary to that heretofore placed upon it by this court. These considerations require the affirmance of the judgment of the Circuit Court, and it is so ordered. BUFORD. HOUTZ. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH. No. 711. Submitted January 6, 1890.- Decided February 3, 1890. There is an implied license, growing out of the custom of nearly one hundred years, that the public lands of the United States, especially those in which the native grasses are adapted to the growth and fattening of domestic animals, shall be free to the people who seek to use them, where they are left open and unenclosed, and no act of the government forbids their use. During the progress of the settlement of the newer parts of the country the rule that the owner of domestic animals should keep them confined within his own grounds, and should be liable for their trespasses upon unenclosed land of his neighbor, has nowhere prevailed; but, on the contrary, his right to permit them, when not dangerous, to run at large, without responsibility for their getting upon such land of his neighbor, has been universally conceded, and is a part of the statute law of Utah. Comp. Laws, § 2234. IN EQUITY. The bill was dismissed and the plaintiffs appealed. The case is stated in the opinion. Opinion of the Court. Mr. M. Kirkpatrick for appellants. Mr. Joseph L. Rawlins (with whom were Mr. James N. Kimball and Mr. Ogden Hiles) for appellees. MR. JUSTICE MILLER delivered the opinion of the court. This is an appeal from the Supreme Court of the Territory of Utah. The bill was originally filed by the appellants in the Third Judicial District Court of Utah Territory in and for Salt Lake County, and in that court a demurrer was filed setting forth two grounds of objection to the bill; first, that it does not state facts sufficient to constitute a cause of action, and, second, that several causes of action have been improperly united in this, that said complaint states a separate cause of action against each individual defendant, and nowhere states or attempts to state a cause of action against all of the defendants. This demurrer was sustained, and a decree rendered dismissing the bill at the costs of plaintiffs, and on appeal to the Supreme Court of the Territory that decree was affirmed. The case is here on an appeal from that judgment. The complainants were M. B. Buford, J. W. Taylor, Charles Crocker and George Crocker, copartners under the firm name and style of the Promontory Stock Ranch Company. The defendants were John S. Houtz and Henry and Edward Conant, under the firm name and style of Houtz & Conant, the Box Elder Stock and Mercantile Company, a corporation, and twenty individuals whose names are given in the bill. The plaintiffs allege that they are the owners of certain sections and parts of sections of land in the Territory of Utah, which they describe specifically by the numbers and the style of their Congressional subdivisions, very much of which is derived from the Central Pacific Railroad Company, to which they were granted by the Congress of the United States. These lands were alternate sections of odd numbers according to the Congressional grant to the railroad company, and they with the other tracts mentioned in the plaintiffs' bill are said VOL. CXXXIII— -21 |