Heirs of Burat v. BOARD OF LEVEE COM'RS OF ORLEANS, ETC.

• Decision Date: 12 August 1974
• Docket Number: No. 73-2380.,73-2380.
• Citation: 496 F.2d 1336
• Parties: HEIRS of Hubert BURAT (Buras), et al., Plaintiffs-Appellants, Janet Easterling and Jack Buras, Movants-Appellants, v. BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT OF the STATE OF LOUISIANA et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

496 F.2d 1336 (1974) HEIRS of Hubert BURAT (Buras), et al., Plaintiffs-Appellants Janet Easterling and Jack Buras, Movants-Appellants, v. BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT OF the STATE OF LOUISIANA et al., Defendants-Appellees.

No. 73-2380.

United States Court of Appeals, Fifth Circuit.

July 15, 1974.

Rehearing Denied August 12, 1974.

John H. Brooks, New Orleans, La., Peter C. LaDart, Harvey, La., for Heirs of Burat.

Charles R. Maloney, Forrest L. Bethay, Sr., New Orleans, La., for movants.

James E. Wright, Jr., New Orleans, La., for Grove.

Eugene G. Taggart, New Orleans, La., for La. Power & Light.

W. S. Shirley, Jr., Lawrence K. Benson, New Orleans, La., for Standard Oil.

Booth Kellough, New Orleans, La., William G. Duck, John E. Bailey, Houston, Tex., for Gulf Refining.

David A. Kerstein, New Orleans, La., for Estate of W. G. Helis.

John T. McMahon, Alvin B. Gibson, New Orleans, La., for Shell Oil.

Richard J. McGinity, Jr., New Orleans, La., for Bd. of Levee Comm.

Peter E. Duffy, Metairie, La., for Wildlife & Fisheries.

Before RIVES, GEWIN and RONEY, Circuit Judges.

RONEY, Circuit Judge:

The heirs of Hubert Burat, a Louisiana pioneer who died in 1847, bring this action as class plaintiffs, approximately 550 in number, for declaratory judgment, money damages and injunctive relief. They seek to establish title to four sections of land, over 700 acres, in Plaquemines Parish, Louisiana, settled by their ancestor prior to 1795, land once colorfully described as "Batture du Diable," the land of the devil. The complaint seeks money damages in the amount of $100,000,000 against the Board of Levee Commissioners of the Orleans Levee District, a state governmental agency, and nine other private and public defendants alleged to be bad faith possessors of the land. The plaintiffs request an injunction against the defendants' continued possession. The District Court, with a good statement of reasons, dismissed the complaint for lack of federal jurisdiction of the subject matter. We affirm.

The plaintiffs' brief tells us that the Burat settlement was some 60 miles below New Orleans on the east bank of the Mississippi River and that Burat endured flood, mosquitoes, storms, hurricanes and disease for his land. What is more, he did it all on his own. New Orleans was in those days a three-day trip by horse, and civilization's only real representative was a seasonal priest who made it "down below" perhaps once a year to solemnize marriages, christen babies and resolve quarrels. Thus, the base claim to ownership of the land by Burat predates the Louisiana Purchase.

The factual history since then is both interesting and complicated, but it is not necessary to this decision to make a complete recitation of that history. It involves disputes at various junctures in the chain of title since 1803. Although the Louisiana Purchase incorporated Burat's land into the United States, statutes formulated thereafter made it possible for Burat to claim the land on which he lived and worked. His attempts to perfect his title, however, went unsatisfied due to an erroneous survey which showed Burat's four sections of land to be where they were not, and at the same time showed those sections which he was actually settling and occupying with his family as being vacant. This error enabled others to file a claim for his land so that two lines of title developed. In 1837, a federal land register and recorder included Burat's corrected claim in his report to Congress and in 1842, Congress confirmed Burat's ownership by special legislative act. In 1972 a patent for the tract was finally issued to the heirs of Hubert Burat, with this caveat:

This patent shall only operate as a relinquishment of title on the part of the United States, and shall in no manner interfere with any valid adverse right to the same land, nor be construed to preclude a legal investigation and decision by the proper judicial tribunal between adverse claimants to the same land.

In the meantime, squatters and persons purporting to have ownership from the alleged erroneous claim of title took turns at occupying the land and in 1838 and 1839 patents were issued to these alleged "outlaw" claimants. During the period from 1924 to 1930, the Levee Board of the Orleans Levee District expropriated the property and became its owner. The Levee Board claims ownership through this expropriation and the other defendants claim leasehold interests from the Levee Board. The plaintiffs assert that this land was the exclusive property of the United States when it was expropriated and that the Levee Board exceeded its state authority and illegally and unconstitutionally assumed ownership of the lands in a proceeding the plaintiffs described as a farce.

The defendants' brief cautions us that the colorful recitation of history by the plaintiffs should not obscure the fact that neither Hubert Burat nor his heirs asserted any interest or claim to the land in over 100 years, and their present claim is based on assertion of legal title and not on any rights acquired by possession.

Regardless of the interesting history in Burat's line of succession, however, the specific question before us is whether, since there is no diversity of citizenship between the parties, the plaintiffs' claim of title raises any federal question upon which to posit federal court jurisdiction under 28 U.S.C.A. § 1331(a). Section 1331(a) provides original jurisdiction to district courts of all civil actions for over $10,000 wherein the matter arises "under the Constitution, laws, or treaties of the United States." In bringing their suit, the heirs of Burat did not specify the federal question relied upon for jurisdiction but the trial court examined all allegations which might be considered as such and considered the contentions presented by plaintiffs in memorandum brief and oral argument to determine whether plaintiffs could, by amending their pleadings, state a case arising under the Constitution, laws or treaties of the United States, within the meaning of 28 U.S.C.A. § 1331. We too have considered lengthy oral argument and have carefully reviewed the briefs and authorities cited to us by the plaintiffs. Their brief lists a plethora of federal treaties, statutes, confirmations and patents: The Treaty of 1803 and The Acts of March 26, 1804 (2 Stat. 283); March 2, 1805 (2 Stat. 324); February 28 and April 21, 1806; April 25, 1812; May 11, 1820; February 6, 1835 (4 Stat. 749); January 12, 1825; July 6, 1842; and June 2, 1853. (The plaintiffs did not provide complete citations for these Acts, but our decision makes it unnecessary for us to examine them.)

The District Court found that federal jurisdiction, if existent, had to arise from the following allegations: (1) that plaintiffs' title to the lands derived from a United States patent issued on May 24, 1972, pursuant to a private claim confirmed by Act of Congress on July 6, 1842; (2) that the United States was the owner of the lands during the interim, but the patent had retroactive effect to the date of confirmation, and (3) that the defendant Board of Levee Commissioners wrongfully assumed ownership of the lands by various acts of expropriation during the period 1924 through 1932 in excess of its authority and in violation of the Constitution of the United States. In addition, plaintiffs assert that the United States has a continuing obligation to protect Burat's rights by virtue of the treaty obligations in the Louisiana Purchase.

Three principles to which we find no applicable exceptions foreclose federal jurisdiction of plaintiffs' claims: first, questions as to the title and rights to land within a state are of primary concern to that state and are not the customary business of federal courts; second, the fact that title derives from an Act of Congress or a United States patent does not raise a federal jurisdictional question; and third, federal jurisdiction must appear from those allegations necessary to state plaintiffs' own claim and cannot rest upon the assertion that the defense raises or will raise a federal question. Finding further that the recent Supreme Court case of Oneida Indian Nation v. Oneida County, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) does not furnish plaintiffs with a key to the federal courthouse, we leave the heirs of Burat to test their title in state court.

That land title and possessory actions are normally not the business of federal courts is not questioned by plaintiffs and is such a firm concept that it needs no amplification. See, e. g., Beauregard v. New Orleans, 59 U.S. (18 How.) 497, 15 L.Ed. 469 (1855); White v. Burnley, 61 U.S. (20 How.) 235, 15 L.Ed. 886 (1857); Mays v. Kirk, 414 F.2d 131 (5th Cir. 1969); cf. Aaron v. Florida Gas Transmission Co., 412 F.2d 802 (5th Cir. 1969).

It has become a settled principle of law that a jurisdictional federal question is not raised merely because title to land devolves from a patent, such as Burat's 1972 patent, or under an Act of Congress, such as Burat's 1842 confirmation. Oneida Indian Nation v. Oneida County, 414 U.S. 661, 782, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) 42 U.S.L.W. 4195; Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205 (1911); Joy v. St. Louis, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776 (1906); Florida C. & P. R. R. v. Bell, 176 U.S. 321, 20 S.Ct. 399, 44 L.Ed. 486 (1900).

Plaintiffs cite only three cases which appear to hold contrary to this proposition, United States v. White, 17 F. 561 (C.C.Cal.1893); Doolan v. Carr, 125 U. S. 618, 8 S.Ct. 1228, 31 L.Ed. 844 (1887); and McGilvra v. Ross, 215 U.S. 70, 30 S.Ct. 27, 54 L.Ed. 95 (1909). We think these cases readily distinguishable. White was a suit by the United States to set aside a patent obtained from it by fraud; Doolan was well distinguished after the decision in Joy v. St. Louis, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776 (1906), by the opinion in Taylor v....