The jurisdiction of this Court being here challenged, and it
appearing that the facts presented are identical with those on
which depends a suit over boundary, brought by the State of
Arkansas against the State of Tennessee (defendant in error herein)
while this case was pending in the courts of the latter state, that
a decision of this case upon the merits will be equivalent to a
decision of the boundary controversy, and that an affirmance of the
judgment will dispose of the avails of nearly or quite all the
lands involved in that case and this,
ordered, that this
case be restored to the docket and be assigned
Page 242 U. S. 196
for hearing immediately after the boundary case, and that, upon
a stipulation of the facts of that case by the parties thereto,
both cases will be taken on briefs if all parties consent, or
advanced for early argument if they prefer.
The facts are stated in the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
As owner in trust for the people of the state of certain
described lands, the State of Tennessee, in a state court,
commenced this action in 1903 against Cissna and others to recover
the lands, and to restrain cutting timber thereon, and for an
accounting for timber already cut. A temporary injunction was
granted against removing and cutting timber, which was modified by
permitting, on the giving of a bond, the removal of timber already
cut, and was subsequently again modified by allowing all the timber
on the land to be cut and removed on the giving of an additional
bond. By pleas in abatement and answers, the jurisdiction of the
court was denied on the ground that the lands were not in
Tennessee, but in Arkansas, and this was sustained, and the suit
dismissed for want of jurisdiction. The supreme court of the state,
however, reversed this action and remanded the case for trial on
the merits. 119 Tenn. 47.
The pleadings were amended in the trial court, and while the
case was there undetermined, the State of Arkansas filed in this
Court its complaint against Tennessee to settle
Page 242 U. S. 197
the boundary line between the two. The bill made reference to
the suit pending in Tennessee and alleged that the lands embraced
by that suit were in Arkansas, subject to its sovereignty, and
denied the power of the State of Tennessee in its own courts to
interfere with the lawful authority of the State of Arkansas.
Thereafter the existence of the suit in this Court was alleged in
the state court, and that court was asked to suspend proceedings
until the decision in the boundary case. This was denied, and a
judgment was entered in favor of the State of Tennessee, holding
that the lands were in Tennessee and belonged to that state, and
this judgment was subsequently affirmed by the supreme court of the
state. In that court also, the pendency of the original suit
between the two states in this Court was specially set up and an
application for suspension of proceedings, based on the fact, was
prayed, but was refused. The judgment of the supreme court of the
state not only decreed the lands to belong to the State of
Tennessee in its sovereign capacity, on the ground that they were
situated within that state, but gave a recovery for the amount of
the timber cut before the bringing of the suit, and also for the
money value of the balance of the timber on the lands which had
been cut and removed as the result of the modification of the
injunction, permitting that to be done.
At the threshold, jurisdiction to review the judgment thus
rendered is denied on the ground that no federal question arises
for decision.
It is conceded in argument by both parties that the decision of
the merits of this case will necessarily be the equivalent of a
decision of the boundary suit pending on our original calendar
between the two states, and that an affirmance of the money
judgment below will in substance be an award for virtually the
entire avails of the lands in suit in this case, as well as of the
greater part, if not all, of the lands to be affected in the
boundary suit. Moreover,
Page 242 U. S. 198
in substance, it is not disputed that the facts here presented
are identical with those upon which the solution of the boundary
suit must depend. Under these conditions, we think, without
intimating an opinion on the question of jurisdiction raised in
this case, or on the merits, that we ought not to consider and pass
upon this case without at the same time considering and passing
upon the controversy concerning the boundary between the two
states, now pending on our docket. The identity of the two issues,
the possible influence which the decision of the one would have on
the rights pending in the other, and the fact that the actor, the
State of Tennessee, in this suit, is the defendant in the original
suit, we think render that conclusion necessary.
For these reasons, we direct that this case be restored to the
docket and that it be hereafter assigned for hearing at the same
time and immediately after the coming on for hearing of the
original boundary suit between the two states. And to the end that
that hearing may be expedited, we say in addition, first, that, if
the facts in the boundary case be stipulated by the parties either
by reference to the facts shown in this case or otherwise, both the
cases will be taken on submission on printed briefs, if the parties
are so advised; or second, if they are not so advised, upon an
agreement and stipulation as to the facts in the boundary case,
that case and this will be ordered advanced and assigned for oral
argument at an early day.
And it is so ordered.