A mere formal statement in the bill to the effect that the cause
of action is one arising under the Constitution and laws of the
United States does not suffice to give this Court jurisdiction to
review the judgment of the circuit court of appeals under § 241
Jud.Code -- it must appear that the suit really and substantially
involves a dispute or controversy respecting the validity,
construction or effect of some law of the United States upon the
determination whereof the result depends.
Hull v. Burr,
234 U. S. 712.
Riparian rights attaching to property patented by the United
States are determined by the law of the state in which the land is
situated.
Hardin v. Jordan, 140 U.
S. 371. ,
The fact that both parties owning parcels of real estate
bordering on a navigable boundary river opposite to each other
acquired the property from the United States does not change or
affect the rule that riparian rights of the parties are to be
determined by the law of the respective states in which the
properties are situated.
The provisions in the various ordinances and statutes relating
to the organization of the Northwest Territory referred to in the
bill in this case do not control the riparian rights enjoyed, under
the law of the state wherein the property is situated, by parties
who acquired the land from the United States within the limits of a
state carved out of such Territory.
Page 239 U. S. 145
Averments in a bill as to the general intent of Congress to
preserve free navigation of the rivers within the Northwest
Territory are unavailing to give jurisdiction to this Court to
renew a judgment of the circuit court of appeals in a case
otherwise made final by § 128 Jud.Code in the absence of any
specific legislation of Congress influencing the determination of
an asserted federal question in regard to riparian rights.
The mere fact that Congress directed the improvement of a new
channel in a navigable river does not destroy riparian rights
existing under state law and create new ones under federal law.
In this case, as the riparian rights asserted by complainant
existed, if at all, under the law of the state in which the
property is situated and the determination of the issues did not
involve the construction of the Constitution or of any law of the
United States, but as the jurisdiction rested on diverse
citizenship alone, the decree of the Circuit Court is final under §
128, Jud.Code, and this Court ha no jurisdiction to review it under
§ 241 Jud.Code.
Writ of error to review 205 F. 5 dismissed.
The facts, which involve the jurisdiction of this Court under §
241 Judicial Code to review a judgment of the circuit court of
appeals, and the finality of such judgment under § 128 Judicial
Code are stated in the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
The appellant, who was complainant below, as the owner of
certain shore land abutting on a stretch of water
Page 239 U. S. 146
in or near the upper end or far corner of Lake Superior, from
one point of view sued to quiet his title to the whole or a part of
a certain island which had emerged from the waters in front of his
land, or, considered from the same point of view in a broader
aspect, to protect his asserted riparian rights in the submerged
land in front of his shore property. The defendants, who are
appellees, were owners or possessors either of property on the
opposite shore or of the whole or part of the emerged island, and
the controversy resulted from a difference between the parties as
to the character and extent of their riparian rights and as to the
ownership of the island which had emerged in the stretch of water
between the two shores. The district court upheld the theory of the
existence in the complainant of the riparian rights asserted by
him, and therefore awarded relief upon that basis except as to a
portion of the emerged island, as to which it gave no relief
because, in consequence of adverse possession by one of the
defendants, it was considered there was an adequate remedy at law
and consequently no right to equitable relief. 188 F. 356. On
appeal, the court below, not approving the full character or extent
of the riparian rights asserted by the complainant and recognized
by the trial court, reversed, with directions to dismiss the bill
(205 F. 5), and it is in consequence of an appeal from that decree
that the case is now before us.
A motion to dismiss upon the ground that the decree appealed
from is beyond our competency to review because made final under §
128 of the Judicial Code (36 Stat. 1133, c. 231) requires to be
disposed of. To test its merits, we must first ascertain whether
the jurisdiction of the district court was invoked solely on the
ground of diverse citizenship.
St. Anthony's Church v.
Pennsylvania R. Co., 237 U. S. 575,
237 U. S. 577,
and cases cited. That, taking the face of the bill from the point
of view of mere form of statement, diverse citizenship was not the
only ground
Page 239 U. S. 147
of jurisdiction relied upon is apparent, since the bill, besides
diversity of citizenship, alleged that the cause of action was one
arising under the Constitution and the laws of the United States.
This, however, does not suffice to solve the question, since it is
settled that a mere formal statement to that effect is not enough
to establish that the suit arises under the Constitution and laws
of the United States, but that it must appear that
"it really and substantially involves a dispute or controversy
respecting the validity, construction, or effect of some law of the
United States upon the determination of which the result depends.
And this must appear not by mere inference, but by distinct
averments according to the rules of good pleading."
Hull v. Burr, 234 U. S. 712,
234 U. S. 720,
and authorities there cited. Before coming to the text of the
complaint, to understandingly test whether it fulfils these
requirements, we give the merest outline of the condition out of
which the controversy grew and to which the complaint related.
The boundary line of Wisconsin, under its enabling act, starting
from a designated point, ran "through the center of Lake Superior
to the mouth of the St. Louis River; thence up the main channel of
said river to the first rapids in the same," etc. And the boundary
line in one respect of Minnesota from the point where it
intersected with the St. Louis River followed the main channel of
that river
"to and through Lake Superior, on the boundary line of Wisconsin
and Michigan, until it intersects the dividing line between the
United States and the British Possessions."
From the point of intersection where it first becomes the
boundary of the States of Wisconsin and Minnesota, in its flow
towards Lake Superior, the St. Louis River approaches Lake Superior
in the direction of a large bay or indentation therein. From one
point of view, the river, at once leaving the fast land, empties
into and is immediately absorbed in this bay. From another,
Page 239 U. S. 148
the river, before it empties into the lake, expands into a
stretch of shallow water contained within the north or Minnesota
shore, upon which is Duluth, and the south or Wisconsin shore, upon
which is the city of Superior, through which shallow stretch a
tortuous but navigable channel curvingly continues to flow until,
by a passage through an intervening bar, the river, emptying into
the bay, merges its existence with that of the lake. We say
tortuous channel because the banks on either side of the
flange-like stretch of water are not symmetrical, but are indented
with various bays of divergent shape and expanse, and the water
itself is irregularly interspersed with islands or flats which
deflect the channel we have described and cause it greatly to
meander as it proceeds to its ultimate destination in the bay
through the bar in question. It will thus be seen that the
difference between the two points of view is this: that one treats
the lake as embracing the expanded though shallow stretch of water
in question, and the other considers the shallow stretch of water
as a part of the river until the point is reached where, traversing
the bar, the lake and river are completely and, beyond room for any
possible question, united.
On the Minnesota or north shore of this shallow stretch of
water, the complainant owned land. The channel flowing through the
stretch of water as it approached the complainant's land curved
towards the Minnesota shore, and therefore, in passing in front of
that land, was nearer the north, or Minnesota, shore. In the
stretch of water nearly opposite the complainant's land, but over
towards the south, or Wisconsin, shore there was a large island
known as Big island, admittedly in the State of Wisconsin, owned by
Whiteside, one of the defendants, and about 2,000 feet lay between
the outer shore of this island and the complainant's land on the
northern shore. In the intervening space between the channel and
this
Page 239 U. S. 149
island, and therefore on the south, or Wisconsin, side of the
channel, there gradually emerged a smaller island.
It having been determined to improve the navigation in the
channel through the stretch of water in question, the plans to
accomplish that purpose were approved by the Secretary of War in
1899, and, in virtue of an appropriation by Congress, the work
under the plans was carried out by the United States between the
years 1899 and 1902 It is not necessary for the elucidation of the
averments of the bill to do more than say that the carrying out of
this work resulted in the creation of a new navigable channel
which, in passing through the stretch of water, instead of swinging
towards the north, or Minnesota, shore in front of the
complainant's land, curved in the other direction, and therefore
approached nearer the Wisconsin shore than did the old channel. In
doing so, it consequently reached or struck the emerged island of
which we have spoken near its Wisconsin, or south, side, and,
cutting through it, virtually put the new and enlarged channel on
the Wisconsin side of such emerged island. What remained of the
island thereafter hence lay between the newly created channel and
the lands of the complainant on the north, or Minnesota, shore. In
other words, as the result of the creation of the new channel, the
lands of the complainant, to the extent that the emerged island
accomplished that result, were separated from the new channel. In
the performance of the work, it may be conceded that, in cutting
through the emerged or small island, the excavated earth was
largely dumped on the surface of the island towards the Minnesota
shore, and that, either because of the washing of this earth into
the old channel or the sedimentary deposit caused by the slackening
of the velocity of the water flowing through it, the old channel
opposite the land of the complainant became not suitable for, or
more difficult of, navigation.
In view of this situation, we come to consider the bill,
Page 239 U. S. 150
its averments, and the light thrown on them by the relief
prayed, in order to determine whether, in any substantial manner
whatever, it involved the construction or application of the
Constitution or laws of the United States within the criteria
embraced by the established rule which we at the outset stated.
Instead of following the order of the twenty-four paragraphs which
the bill contains, we rearrange and group them under five headings,
omitting many redundancies of statement but leaving out nothing
which can throw light upon the cause of action relied upon.
(a)
The parties. The complainant was alleged to be a
citizen of Kentucky, and the defendants, Whiteside, Alexander, and
Tallas, were alleged to be citizens of the State of Minnesota and
inhabitants of the district in which the suit was brought.
(b)
The grievances complained of. It was alleged that
the complainant owned land under patents from the United States on
the Minnesota side of the stretch of water at the point to which we
have referred, that the defendant, Whiteside, under title acquired
also from the United States, owned land on the Wisconsin side, Big
island, that Alexander, either in his own right or in connection
with Whiteside, claimed some land on the Wisconsin side and
resulting riparian rights, and that Tallas had taken possession of
a part of the small or emerging island, erected a small structure
thereon, and, without right in law, was asserting ownership
therein, the land never having been disposed of by public
authority. It was averred that both Whiteside and Alexander, by
virtue of their shore ownership, were asserting riparian rights
crossing the new or government channel to the old or original
channel, embracing what remained of the emerged island, and that
Tallas, by virtue of his possession of the island which remained,
was asserting the right to hold it as owner.
(c)
The rights asserted. Averring that the stretch of
water was a part of Lake Superior, in substance it was
Page 239 U. S. 151
asserted that, as the complainant owned shoreland on the
Minnesota side, there existed riparian rights extending out to the
center of the channel flowing through the stretch of water,
securing to the shore owner the consequent right of direct access
to such channel, and this right, it was in substance alleged,
embraced the power not only to extend to the old channel, but to
the new navigable channel constructed in improvement of navigation
by the United States, and to enjoy riparian rights coterminous
therewith, and that therefore the asserted rights by Whiteside,
Alexander, and Tallas were in conflict with such right upon the
part of the complainant, and cast a cloud upon his title, giving
him the right to equitable relief.
(d)
The legal grounds asserted as the basis of the relief
prayed. The bill alleged the historical fact of the original
ownership by Virginia of the territory in which the lands in
controversy were embraced, of its passing to the Confederation as a
part of the vast domain ceded by Virginia, of the adoption of the
Northwest Territory Ordinance in 1787, the stipulation contained in
that ordinance that
"the navigable waters leading into the Mississippi and
St.Lawrence [Rivers] . . . shall be common highways, and forever
free as well to the inhabitants of the said Territory as to the
citizens of the United States and those of other states that may be
admitted into the Confederacy, without any tax, impost or duty
therefor."
The bill further referred to the Act of Congress of May, 1796,
providing for the sale of lands within the Northwest Territory,
including the lands in question, reciting the provision therein
"that all navigable rivers within the territory to be disposed
of by virtue of this act shall be deemed to be and remain public
highways, and that in all cases where the opposite banks of any
stream, not navigable, shall belong to different persons, the
stream and the bed thereof shall become common to both."
It alleged the subsequent carving out of said territory of the
States of Ohio, Indiana, Michigan,
Page 239 U. S. 152
Wisconsin, and part of Minnesota, and the reservation in the
enabling acts preserving the navigable waters bordering upon the
same as common highways, and extending concurrent jurisdiction to
the states bordering thereon. Proceeding, the bill alleged the
boundaries of the two states of Wisconsin and Minnesota, as stated
in the enabling acts to which we have referred, including the line
of the main channel of the St. Louis River and the center of Lake
Superior at the points and as described in the statement which we
have previously made. It alleged that, under the laws of Minnesota,
the riparian rights extending to the center of the main navigable
channel were valid as asserted by the complainant, and in practice
had been recognized by the exercise of taxing and other powers. So
far as the United States was concerned, growing out of the
averments as to the formation of the Northwest Territory and of the
states just referred to, it was alleged:
"That, in the preservation of public rights on such navigable
waters where the same constitute state boundaries, it was the
intent of the federal government and of the states to forever
maintain and preserve the rights of the respective states and the
citizens thereof to have access to the navigable and navigated
channels of such boundary waters, and among the most ancient and
important rights of private owners, incidental to the ownership of
the shore lands abutting upon such boundary waters, is the right to
wharf out to and have access to the navigable and navigated channel
of such waters from such shorelands, and to have connection from
such shorelands, throughout the extent thereof, with commerce upon
such navigable and navigated part or channel of such waters,
subject always to the paramount control over the whole of such
waters by the United States."
It was charged that the emerging of the small island opposite
the land of the complainant had occurred after
Page 239 U. S. 153
the survey, sale, and patent of complainant's land by the United
States. In addition, the bill charged that, under the power of the
United States to regulate commerce, harbor lines had at various
times been established which extended from the respective shores to
the old channel before the new one was constructed, and that, under
the plans approved by the Secretary of War for the new work, it was
contemplated that harbor lines should extend from the respective
shores to that channel.
(e)
The relief prayed. The prayer was that the riparian
rights of the complainant be recognized and enforced from the shore
out to the new navigable channel created by the work done by the
United States, and that all rights of the defendants as riparian
owners which they asserted to extend across the new channel over to
the old channel be declared to be invalid, and that they be
restrained from asserting or enforcing them.
Coming to test these averments, we fail to perceive any ground
for holding that the rights asserted rested in any degree whatever
upon a substantial claim under the Constitution or laws of the
United States, or by any possibility involved the construction or
application of any law of the United States, for the following
reasons:
First, because, as to the claim of riparian
rights on the navigable waters in question, it was long since
affirmatively settled that such claim solely involves a question of
state law, and therefore, at the time the bill was filed, it was
not open to contend to the contrary.
Barney v. Keokuk,
94 U. S. 324;
Hardin v. Jordan, 140 U. S. 371;
Grand Rapids & Ind. R. Co. v. Butler, 159 U. S.
87;
Devine v. Los Angeles, 202 U.
S. 313.
Second, because the mere fact that both
parties, the one holding on the Wisconsin shore and the other on
the Minnesota shore, had acquired the property by them held from
the United States, it is also affirmatively settled, in no way
changes the situation.
Blackburn v. Portland Mining Co.,
175 U. S. 571;
Florida Central &c. R.
Co. v.
Page 239 U. S. 154
Bell, 176 U. S. 321;
Shoshone Mining Co. v. Rutter, 177 U.
S. 505;
Shulthis v. McDougal, 225 U.
S. 561,
225 U. S. 569.
Third, because, so far as the references in the bill to
the organization of the Northwest Territory and to the various
provisions relating to navigable waters are concerned, however
interesting they may be historically, we can see not the slightest
ground for the contention that they were controlling or in any way
could influence the question of the nature and character of the
riparian rights enjoyed under the state law by the complainants.
Fourth, because we can discover in the averments of the
bill no substantive statement indicating that it was contended to
the contrary, unless it be that such purpose could be implied as
the result of the general averments of the bill which we have
quoted concerning the general intent of Congress to preserve free
navigation. But, if we were to indulge in such assumption, the
result would not be different, as the averments in question make no
reference to any specific legislation of Congress which would have
the slightest influence upon the determination of the existence of
the riparian rights which the bill asserted.
Fifth,
because we are clearly of the opinion that the mere fact that
Congress, in the exercise of its power to improve navigation,
directed the construction of the new channel affords no basis
whatever for the assumption that thereby, as a matter of federal
law, rights of property, if secured by the state law, were
destroyed, and new rights of property under the assumption indulged
in, incompatible with that law, were bestowed by Congress. And
especially are we constrained to this view by the fact that there
is no question here of any interference with work done by the
United States under its paramount authority to improve navigation,
or any attempt to render the result of that work inefficacious.
This will be lucidly illustrated by considering for a moment the
action of both the courts below, since neither questioned the
paramount authority
Page 239 U. S. 155
and right of the United States in aid of navigation to construct
the new channel, or concerned themselves with any real or imaginary
impediment to navigation. This is at once demonstrated by
considering that the only difference between the two was the
conclusion in the trial court that the effect of constructing the
new channel was to extend the riparian rights over and across the
old channel to the new, irrespective of the rights of property
changed or destroyed thereby, because the new channel was to be
treated not as a new work, but as the gradual and natural
modification of the old, while the court below reached a directly
contrary conclusion.
Finally, we are of opinion that the question whether the stretch
of water and the channel through it be treated as a part of Lake
Superior, as asserted by the complainant, or be considered at the
point in issue as a mere continuation of the St. Louis River, as
asserted by the defendants (a view held by both the courts below),
is wholly negligible for the purpose of determining whether a
substantial federal question was alleged, justifying our taking
jurisdiction of the cause.
As from what we have said it results that our opinion is that
there is no substantial ground for concluding that the jurisdiction
of the district court rested upon any assertion of federal right,
irrespective of diverse citizenship, justifying our review of the
court below, it follows that the appeal must be and it is dismissed
for want of jurisdiction.