Statement of the Case.

201 U. S

JOY v. CITY OF ST. LOUIS.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

No. 204. Argued March 9, 1906.-Decided April 2, 1906.

Where diversity of citizenship does not exist, plaintiff cannot make out a case as arising under the Constitution and laws of the United States so as to give the Circuit Court jurisdiction, unless it necessarily appears by his complaint in stating his own claim, and it cannot be made to appear by an assertion in plaintiff's pleading, that the defense raises a Federal question.

The mere fact that plaintiff's title comes from a patent or under an act of Congress does not necessarily involve a Federal question; there must be an actual dispute as to the construction of the patent or act. While the Federal court construes Government grants without reference to the construction adopted by the States for their grants, the incidents attached to ownership of property conveyed by the United States bordering on a navigable stream are to be determined by the State in which it is situated subject to the limitation that its rules do not impair the efficacy of the grant or its use by the grantee.

Whether land contained in an original patent reached to a river under the distances called for is a question of fact, and whether the patentee is entitled to accretion is a question of local and not Federal law, and ejectment for the land made by accretion cannot, where diversity of citizenship does not exist, be maintained in the Circuit Court as a case arising under the laws of the United States.

Although a case may not be one on plaintiff's statement of which the Circuit Court has jurisdiction as arising under the Constitution and laws of the United States, if the case is brought in the state court questions of a Federal nature may arise during the trial, and the party who specially sets up a Federal right which is denied may have the same reviewed by this court by writ of error under § 709, Rev. Stat.

THIS is an action of ejectment to recover certain lands in the City of St. Louis, State of Missouri, described in the petition, which was filed in the Circuit Court of the United States for the Eastern District of Missouri. The petition was dismissed by

the court solely upon the ground that the court was without jurisdiction, and the trial judge so certified the fact. The plaintiff sued out a writ of error and brought the case directly here for review under the fifth section of the act of 1891. 1 Comp. Stat. 549.

The petition sets forth in detail the title of the plaintiff in error to the premises which he seeks to recover in this action. It is therein stated that a confirmation of a concession was made by the commissioners appointed pursuant to an act of Congress, approved March 2, 1805, entitled "An act for the ascertaining and adjusting the titles and claims to land, within the Territory of Orleans, and the District of Louisiana," such concession having been made to one Louis Labeaume, of 360 arpents of land, by the lieutenant governor of the Spanish Province of Upper Louisiana, on February 15, 1799, and it was duly surveyed and certified April 10, 1799. The land remained an outlot, adjoining and belonging to the former town or village (now city) of St. Louis, and said outlot was owned, claimed, inhabited, cultivated and possessed by Labeaune prior to the twentieth day of December, 1803. By virtue of the first section of an act of Congress, approved June 13, 1812, entitled "An act making further provision for settling the claims to land in the Territory of Missouri," the title in fee simple to said concession, survey, confirmation and outlot was confirmed and granted to Labeaume.

Pursuant to an act of Congress, approved March 3, 1807, letters patent of the United States were issued to Labeaume, bearing date the twenty-fifth day of March, 1852, which letters purported and were sufficient to grant to Labeaume, or his legal representatives, the premises mentioned in the patent. On the sixth day of June, 1874, those from and under whom plaintiff derives title to the real estate sued for were the owners of the concession, and by an act of Congress, entitled "An act obviating the necessity of issuing patents for certain private land claims in the State of Missouri, and for other purposes," approved June 6, 1874, it is provided that the right, title and

interest of the United States in and to all of the lands in the State of Missouri, which had been confirmed by Congress, or officers acting under and by authority of Congress, were granted, released and relinquished by the United States, in fee simple, to the respective owners of the equitable titles thereto, their heirs and assigns, forever, as fully and completely in every respect whatever as could be done by patents issued therefor according to law.

By virtue of these matters and by mesne conveyances from Labeaume it was averred that plaintiff became the owner of the land in question, and that a controversy had arisen between the plaintiff and the defendants herein as to the proper construction and legal effect of the letters patent and the acts of Congress, approved June 13, 1812, and June 6, 1874, and the plaintiff herein averred in his petition—

"that under and by virtue of said confirmation, act of Congress approved June 13th, 1812, letters patent and act of Congress approved June 6th, 1874, said river (Mississippi) is the western boundary of said outlot, confirmation to Louis Labeaume, and said Soulard survey and survey number 3333, and that the said Louis Labeaume or his legal representatives were thereby granted all of the land lying on said west bank of said river, between the northern and southern boundary lines of said outlot, confirmation, Soulard's survey and United States survey number 3333, to said river, and that they were thereby constituted riparian proprietors and owners of all the land along said river bank between said north and south lines of said outlot, confirmation, and surveys, and were thereby vested with the title to, and ownership of, all land thereafter formed by accretions or gradual deposits from the said river along said west bank thereof, between said north and south lines of said outlot, confirmation and surveys, where a large body of land was formed by accretions to said outlot, confirmation and surveys.

"That said claim of plaintiff as to the proper construction and legal effect of said confirmation, acts of Congress approved

June 13th, 1812, and June 6th, 1874, respectively, and patent, is disputed by defendants, and contested by them in regard to the title of the land hereinafter described, and which land is a portion of the land formed by accretions or gradual deposits from said river, along said west bank thereof, between said north and south lines of said outlot, confirmation and surveys, and which thereby became a portion of the land granted by said letters patent and acts of Congress approved June 13th, 1812, and June 6th, 1874, respectively, and is the land herein sued for."

It is then averred that the proper construction and legal effect of the confirmation, acts of Congress and letters patent constitute the controlling question in the case, upon the correct decision of which plaintiff's title to the premises sought to be recovered herein depends, and he "therefore avers that this suit arises under the law of the United States, and said confirmation made and letters patent issued in pursuance thereof, and said acts of Congress, approved June 13, 1812, and June 6, 1874, respectively."

"He further states that as such legal owner of the premises he was entitled to the possession of the same under and by virtue of said confirmation, letters patent and acts of Congress, approved June 13, 1812, and June 6, 1874, respectively, on the 16th day of June, 1896, which are described as follows: " The plaintiff then gives a description of the land in controversy, which he alleges to be a portion of the accretions of the outlot, confirmation and surveys already mentioned.

It was also alleged that the defendants entered upon the premises on the sixteenth of June, 1896, claiming to own the same as a wharf, under and by virtue of section 9 of an act of Congress approved June 12, 1866, entitled “An act authorizing documentary evidence of title to be furnished to the owners of certain lands in the City of St. Louis."

Plaintiff then demanded judgment for the recovery of the premises, and five thousand dollars for the unlawful withholding of the same, and one hundred dollars for monthly rents and

Argument for Plaintiff in Error.

201 U.S.

profits, from the rendition of judgment until the possession of the premises is delivered to plaintiff.

The manufacturing company defendant filed an answer, denying each and every allegation of the petition. It also set up that it held the premises under the City of St. Louis and that the city (and the defendant holding under it) has had open, continuous, notorious and adverse possession of the premises, under claim and color of title, for more than ten years next before the filing of said petition.

The City of St. Louis filed a separate plea to the jurisdiction of the court, and asserted that it had no jurisdiction to try and determine the cause, because no Federal question or question of any kind giving jurisdiction to the court under the statutes and laws of the United States is involved in the issues in this cause. It further set up the facts in relation to the case of Sweringen v. St. Louis, in which the plaintiff therein claimed title to and possession of the property next immediately north of the premises herein claimed by plaintiff, under the same patent of the United States as that under which the plaintiff herein claims, and the history of the litigation is given, and the decision of the case in this court is referred to, which is to be found reported in 185 U. S. 38.

Mr. E. P. Johnson for plaintiff in error:

The petition is a statutory one in ejectment and sets out in detail and with great particularity the claims of plaintiff in error. It follows and elaborates the petition in form and substance, epitomized in the case of Cooke v. Avery, in stating the claims of plaintiff in error under said acts of Congress, the dispute and denial of said claims by defendants in error, and that said claims constitute the controlling question in the case and upon the proper construction and legal effect of which his rights depend, and it sufficiently states a Federal question. Cooke v. Avery, 147 U. S. 375; Carondelet v. St. Louis, 1 Black, 180; Lake Superior &c. Co. v. Cunningham, 155 U. S. 354; Wisconsin Central Railway Co. v. Forsythe, 159 U. S. 46; Spo