King v. Lawson

• Decision Date: 15 December 1897
• Citation: 84 F. 209
• Parties: KING v. LAWSON et al.
• Court: U.S. District Court — District of South Dakota

84 F. 209

KING v. LAWSON et al.

United States Circuit Court, D. South Dakota, Southern Division.

December 15, 1897

King &amp Greene, for complainant.

John D Rivers, for defendants.

CARLAND District Judge.

The complainant made a homestead entry of lots 3 and 4, and Se.E 1/4 S.W. 1/4, section 10, and lot 1 of section 15, township 104, range-- W. of 5th P.M., Brule county, S.D., under section 2290, Rev. St. U.S., on September 30, 1897. He had made a settlement upon said land before the date of said entry, and from the time of settlement until the present has been in the possession of the same, except as that possession has been disturbed by the defendants, who have resided upon the land for some years, and claim to reside upon the same as town-site claimants; being in the actual occupancy of a portion of said land, to the extent of two acres each. Before complainant was allowed to make a homestead entry of the land by the local land office, a hearing was ordered, and had, to determine whether complainant should be allowed to make a homestead entry of the same, or the mayor of the city of Chamberlain, S.D., a town-site entry thereof in trust for the defendants and others. Such proceedings were had on said hearing that on the 15th day of June, 1897, the honorable secretary of the interior decided that complainant should be allowed to make a homestead entry of the land, and that the defendants had no rights thereto as townsite claimants. The defendants refused to abandon the land, and are insisting upon their right to remain thereon, and, as complainant avers, refuse to allow him to make his improvements and otherwise comply with the homestead laws of the United States, and have destroyed certain improvements, in the way of fencing, made by complainant. Complainant avers that he is in possession under and by virtue of the homestead laws of the United States, and that the rights involved, and claimed by him, are based upon the federal statutes and laws in relation to homestead claims. All the parties to this action are citizens of South Dakota. On November 12, 1897 complainant filed his bill in this court, alleging the foregoing facts, among others, and praying for a mandatory and prohibitory injunction, removing the defendants from the possession of said land, and restraining them from in any wise interfering with complainant in the making of the necessary improvements required of him as a homestead entry man. Complainant also moved, on the bill, upon due notice, for a temporary injunction. A hearing on said motion was had December 7, 1897.

Defendants opposed the granting of the temporary injunction upon several grounds, the first among which is want of jurisdiction, arising from the fact that the bill does not show that any federal question is involved in this controversy. The fact that a holding that a federal question exists in the case stated would bring under the jurisdiction of this court numerous cases where title to land is being acquired under the laws of the United States has caused a somewhat careful consideration of this point. Whether the case is one which presents a federal question must be ascertained from the bill itself. Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 Sup.Ct. 654; Chappell v. Waterworth, 155 U.S. 102, 15 Sup.Ct. 34; Postal Tel. Cable Co. v. Alabama, 155 U.S. 482, 15 Sup.Ct. 192; St. Paul, M. & M. Ry. Co. v. St. Paul & N.P.R. Co., 15 C.C.A. 167, 68 F. 9. A case is said to arise under the constitution and laws of the United States whenever its correct decision depends upon the construction of either, or whenever the constitution, laws, or treaties of the United States create or confer the right, privilege, claim, or title on which the plaintiff relies, in whole or in part, for a recovery. A case is one of federal cognizance whenever it becomes necessary to construe the constitution, laws, or treaties of the United States, or to decide as to the existence of some right, title, privilege, claim, or immunity asserted thereunder. Cohens v. Virginia, 6 Wheat. 264; Osborn v. Bank, 9 Wheat. 738; Starin v. City of New York, 115 U.S. 248, 6 Sup.Ct. 28; Mayor v. Cooper, 6 Wall. 247; Tennessee v. Davis, 100 U.S. 257; Railroad Co. v. Mississippi, 102 U.S. 135; Metcalf v. Watertown, 128 U.S. 586, 588, 9 Sup.Ct. 173; Carson v. Dunham, 121 U.S. 421, 7 Sup.Ct. 1030; Provident Sav. Life Assur. Soc. v. Ford, 114 U.S. 635, 5 Sup.Ct. 1104; Water Co. v. Keyes, 96 U.S. 199; Romie v. Casanova, 91 U.S. 379.

In the case of St. Paul, M. & M. Ry. Co. v. St. Paul & N.P.R. Co., 15 C.C.A. 179, 68 F. 9, the court of appeals for this circuit stated the doctrine about as broadly as can be found in any of the cases. The court said:

'Nor is it at all material, so far as the question of jurisdiction is concerned, that the court may not be compelled to construe the acts of congress in the respect stated, or in any other; for, as we have already shown, its jurisdiction does not depend upon the nature of the question that is ultimately decisive of the plaintiff's right to recover. If a case is commenced originally in the circuit court, and, by a fair construction of the complaint, it appears that the plaintiff predicates his right to relief on the meaning or effect of a law of the United States, and the claim is made in good faith, so that there is a real, instead of a merely colorable, controversy, then jurisdiction over the case exists, even though it may appear that the right to the same relief is asserted on another ground, that does not involve the consideration of a federal question. In concluding the discussion on this branch of the case, it is proper to add that we do not concur in the view that the case is one of federal cognizance merely because the title to the lands in controversy is derived from the United States.'

In Railway Co. v. Ziegler, 167 U.S. 65, 17 Sup.Ct. 728 Ziegler alleged in his complaint that on May 1, 1889, he was in possession, as a pre-emptor under the laws of the United States, of a tract of land containing about 80 acres, and on said date had made all the improvements, and had lived on the land a sufficient length of time, and had done all other acts necessary, to entitle him to a patent to the same from the United States;...