George Norton v. Robert Whiteside

• Decision Date: 29 November 1915
• Docket Number: No. 55,55
• Citation: 60 L.Ed. 186,36 S.Ct. 97,239 U.S. 144
• Parties: GEORGE W. NORTON, as Executor and Trustee of the Estate of George W. Norton, Deceased, Appt., v. ROBERT B. WHITESIDE and Andrew J. Tallas
• Court: U.S. Supreme Court

239 U.S. 144

36 S.Ct. 97

60 L.Ed. 186

GEORGE W. NORTON, as Executor and Trustee of the Estate of George W. Norton, Deceased, Appt.,

v ROBERT B. WHITESIDE and Andrew J. Tallas.

No. 55.

Argued November 4 and 5, 1915.

Decided November 29, 1915.

Messrs. Jed L. Washburn, William D. Bailey, Oscar Mitchell, and Albert C. Gil lette for appellant.

Messrs. Luther C. Harris, Alfred Jaques, and Theodore T. Hudson for Robert B. Whiteside.

Messrs. Daniel G. Cash and John B. Richards, Jr., for Andrew J. Tallas.

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 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 equtable relief. 188 Fed. 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 (45 L.R.A.(N.S.) 112, 123 C. C. A. 313, 205 Fed. 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. at L. 1133, chap. 231, Comp. Stat. 1913, § 1120) 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, 577, 59 L. ed. 1119, 1122, 35 Sup. Ct. Rep. 729, 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 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, 720, 58 L. ed. 1557, 1561, 34 Sup. Ct. Rep. 892, 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 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 days 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 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...