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Argument for Plaintiff in Error.

kane Falls and Northern Railway Co. v. Ziegler, 167 U. S. 65; Northern Pacific Railway Co. v. Soderberg, 188 U. S. 526; Doolan v. Carr, 125 U. S. 618, 620.

There is a sufficient statement to show that the construction and legal effect of the acts of Congress and patent as to the right to alluvion and the extent to which land was, or might have been, conveyed by them was required, and therefore presented a Federal question. Security Land & Exploration Co. v. Burns, 193 U. S. 167, 171; Jefferis v. East Omaha Land Co., 134 U. S. 178, 182; Packer v. Bird, 137 U. S. 661, 662. This conflict of grants, the allegation of an entry by a claimant claiming to own the land under one of them, having been made to identify the premises with the conflicting grants, presents a Federal question and it has been the source of much litigation. Ross v. Doe, 1 Pet. 655, 664; Baldwin v. Stark, 107 U. S. 463, 464; Shively v. Bowlby, 152 U. S. 1, 9; Hussman v. Durham, 165 U. S. 144, 147; Pickering v. Lomax, 145 U. S. 310, 313; Glasgow v. Baker, 128 U. S. 560 571; Wallace v. Parker, 6 Pet. 680, 686; Neilson v. Lagow, 7 How. 772, 775; Bell v. Hearne, 19 How. 252, 263; Cousin v. Labatut, 19 How. 202, 207; Berthold v. McDonald, 22 How. 334, 338; Little v. Arkansas, 22 How. 193, 202; Magwire v. Tyler, 1 Black, 195, 202; Reichart v. Felps, 6 Wall. 160, 165; Silver v. Ladd, 6 Wall. 440; French-Glenn Live Stock Co. v. Springer, 185 U. S. 47, 54; Mobile Transportation Co. v. Mobile, 187 U. S. 479, 482; Kean v. Calumet Canal Co., 190 U. S. 452, 458; Lavagnino v. Uhlig, 198 U. S. 443, 450; Gleason v. White, 199 U. S. 54.

If plaintiff in error on a trial in thec court below should fail to produce sufficient evidence to vese a legal title in Labeaume, under act of June 13, 1812, then the only question would be whether the patent or the first section of the act of Congress of June 6, 1874, 18 Stat. 62, vested it in him, and in the event of a contest between them in regard to the title, it would present a Federal question. Campbell v. Laclede Gas Light Co., 119 U. S. 445, 446. Sweringen v. S'. Louis, 185 U. S. VOL. CCI-22

Argument for Defendants in Error.

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38, has no bearing on this case. See Sutton v. Dameron, 100 Missouri, 141, 149.

Mr. Charles Claflin Allen, with whom Mr. Charles W. Bates and Mr. Henry W. Allen were on the brief, for defendants in

error:

There being no allegation of diversity of citizenship, the only question involved is, whether the petition discloses & cause of action arising under the laws of the United States so as to give the court below jurisdiction of the cause. The jurisdiction of that court is defined by act of August 13, 1888, 25 Stat. 433. In order to give the lower court jurisdiction the necessary facts to confer jurisdiction must be stated in the petition itself, and, unless the jurisdictional facts affirmatively appear from the record, the presumption upon writ of error or appeal, is that the court below was without jurisdiction. King Iron Bridge & Mfg. Co. v. Otoe County, 120 U. S. 225; Third Street & Suburban Ry. Co. v. Lewis, 173 U. S. 457; Florida Central Ry. Co. v. Bell, 176 U. S. 321; Minnesota v. Northern Securities Co., 194 U. S. 48.

No jurisdiction is shown by the record in this case. It does not appear on the face of the record that some title, right, privilege or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by an opposite construction. Starin v. New York, 115 U. S. 257; Germania Ins. Co. v. Wisconsin, 119 U. S. 473; Cooke v. Avery, 147 U. S. 375.

Jurisdiction cannot be conferred by alleging that defendant intends to dispute the validity of some law of the United States or to assert a defense based on some such law. Tennessee v. Union & Planters' Bank, 152 U. S. 454; Florida Central R. R. Co. v. Bell, 176 U. S. 321; Chappell v. Waterworth, 155 U. S. 102; Walker v. Collins, 167 U. S. 57; Sawyer v. Kochersperger, 170 U. S. 303; Arkansas v. Coal Co., 183 U. S. 185; Little York Gold Washing Water Co. v. Keyes, 96 U. S. 199.

In an action of ejectment the plaintiff must recover, if at all,

201 U.S.

Argument for Defendants in Error.

upon the strength of his own title. The weakness of his adversary's cannot avail him. McNitt v. Turner, 16 Wall. 352. The plaintiff cannot confer Federal jurisdiction by anticipating the defendant's claims of title, which the court may never be called upon to consider, or by raising fictitious disputes with himself. McGuire v. Blount, 199 U. S. 142; Watts v. Lindsey, 7 Wheat. 158. The law concerning ejectment is the same in Missouri as in the United States courts. Hunt v. Searcy, 167 Missouri, 158.

The original jurisdiction of the Circuit Courts of the United States under the act of August 13, 1888, 25 Stat. 433, is quite different from the appellate jurisdiction of the Supreme Court under § 709 of the Revised Statutes. Cases, therefore, in which the Supreme Court has jurisdiction on writ of error to a state Supreme Court are not authorities on the questions of jurisdiction here involved. Carson v. Dunham, 121 U. S. 421.

The fact that one of the parties has derived his title directly under an act of Congress does not, for that reason alone, present a Federal question. Blackburn v. Portland Gold Mining Co., 175 U. S. 571; see also Shoshone Mining Co. v. Rutter, 177 U. S. 505.

The fact that the language of a grant from the United States may have to be construed in the usual and ordinary way applicable to instruments conveying title in order to determine the correct measurements of the land conveyed does not raise a Federal question. Sweringen v. St. Louis, 185 U. S. 38.

The many cases cited by plaintiff in error, in which this court passed the question of jurisdiction sub silentio, are no authority in the case at bar. New v. Oklahoma, 195 U. S. 252; United States v. More, 3 Cranch, 159.

Plaintiff, in setting up the various acts of Congress and claiming that differences may exist between them is disputing with himself-not with the defendants. They resulted in a patent from the United States, the validity of which is not disputed. All plaintiff needs to show is one title, good in him, to make out a prima facie case and he cannot rely upon possible defects in that title in order to raise a Federal question. Langdeau v.

Hanes, 21 Wall. 521; Morrow v. Whitney, 95 U. S. 551; Wright v. Roseberry, 121 U. S. 488.

MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.

There is no diversity of citizenship in this case, and the only ground of jurisdiction claimed is that the action arises under the laws of the United States. The case is a pure action of ejectment, and the general rule in such actions, as to the complaint, is that the only facts necessary to be stated therein are, that plaintiff is the owner of the premises described, and entitled to the possession, and that defendant wrongfully withholds such possession, to plaintiff's damage in an amount stated. Setting out the source of the plaintiff's title, as was done with so much detail in this case, was unnecessary, but it does not alter the case, because a claim that the title comes from the United States does not, for that reason merely, raise a Federal question.

It is a long-settled rule, evidenced by many decisions of this court, that the plaintiff cannot make out a case as arising under the Constitution or the laws of the United States unless it necessarily appears by the complaint or petition or bill in stating plaintiff's cause of action. In Gold-Washing Co. v. Keyes, 96 U. S. 199, 203, it was said that before the Circuit Court can be required to retain a cause under its jurisdiction, under section 5, act of 1875, it must in some form appear upon the record, by a statement of facts, in legal and logical form, such as is required in good pleading, that the suit is one which really and substantially involves a dispute or controversy, as to a right which depends upon the construction or effect of the Constitution, or some law or treaty of the United States. That was a case of a petition for a removal of a suit from the state to the Federal court. But it has been held that whether there is a right of removal in such cases depends upon whether the Circuit Court could have exercised original jurisdiction. Third Street &c, Co. v. Lewis, 173 U, S, 457; Arkansas v. Coal Co.,

183 U. S. 185; Boston &c. Mining Co. v. Montana &c. Co., 188 U. S. 632, 640. This original jurisdiction, it has been frequently held, must appear by the plaintiff's statement of his own claim, and it cannot be made to appear by the assertion in the plaintiff's pleading that the defense raises or will raise a Federal question. As has been stated, the rule is a reasonable and just one that the complainant in the first instance shall be confined to a statement of his 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 plaintiff's cause of action, imposing upon the defendant the burden of proving such defense. This principle was given effect to in Tennessee v. Union & Planters' Bank, 152 U. S. 454; Muse v. Arlington Hotel Co., 168 U. S. 430; Third Street &c. Co. v. Lewis, 173 U. S. 457; Arkansas v. Coal Co., 183 U. S. supra; Filhiol v. Maurice, 185 U. S. 108; Boston &c. Co. v. Montana &c. Co., 188 U. S. supra.

The mere fact that the title of plaintiff comes from a patent or under an act of Congress does not show that a Federal question arises. It was said in Blackburn v. Portland &c. Co., 175 U. S. 571, that "this court has frequently been vainly asked to hold that controversies in respect to lands, one of the parties to which had derived his title directly under an act of Congress, for that reason alone presented a Federal question." The same principle was held in Shoshone Mining Co. v. Rutter, 177 U. S. 505, and also in De Lamar's Gold Mining Co. v. Nesbitt, 177 U. S. 523.

To say that there is a dispute between the parties as to the construction of the patent or of the several acts of Congress referred to, does not raise a Federal question, because a statement that there is such dispute is entirely unnecessary in averring or proving plaintiff's cause of action. His source of title, as set forth in the petition, might not be disputed, and the defense might rest upon the defense of adverse possession, as set up in the answer. If defendants contented themselves on the trial with proof of such defense, then no question of a Federal nature would have been tried or decided.