McGilvra v. Ross

• Decision Date: 12 October 1908
• Docket Number: 1,565.
• Citation: 164 F. 604
• Parties: McGILVRA et al. v. ROSS, State Land Com'r, et al. BRESSLER v. SAME.
• Court: U.S. Court of Appeals — Ninth Circuit

164 F. 604

McGILVRA et al. v. ROSS, State Land Com'r, et al.

BRESSLER v. SAME.

No. 1,565.

United States Court of Appeals, Ninth Circuit.

October 12, 1908

Appeal from the Circuit Court of the United States for the Northern Division of the Western District of Washington.

Chas K. Jenner (William Martin, of counsel), for appellants.

John D Atkinson, Atty. Gen., E. C. MacDonald, Asst. Atty. Gen Donald F. Kizer (J. B. Alexander and I. B. Knickerbocker Asst. Attys. Gen., and John W. Roberts, of counsel), for appellees.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

The controversy in these two cases relates to the rights of the complainants, as alleged riparian owners, with respect to certain lands on the shores of Lakes Washington and Union, in the state of Washington, lying in front of lands owned by the complainants. In the court below demurrers were interposed to the bills of complaint on the grounds that they did not state facts sufficient to entitle plaintiffs to the relief prayed for and that the court was without jurisdiction of the parties or the subject-matter. The court sustained the demurrers and dismissed the bills for want of equity, without discussing the question of jurisdiction. It is not alleged in either complaint that there is a diversity of citizenship with respect to the parties to the action. The jurisdiction of the Circuit Court did not rest, therefore, on diverse citizenship, and, unless the cases arose under the Constitution and laws of the United States, the jurisdiction of the Circuit Court was not properly invoked, and should not have been maintained. Defiance Water Company v. Defiance, 191 U.S. 184, 190, 24 Sup.Ct. 63, 48 L.Ed. 140.

The question of jurisdiction of the Circuit Court was not discussed on appeal in this court; but, as said by the Supreme Court in the case just cited:

'The fundamental question of jurisdiction, first of this court, and then of the court from which the record comes, presents itself on every writ of error or appeal, and must be answered by the court, whether propounded by counsel or not.'

When the jurisdiction of the Circuit Court is in issue, the question is proper to be determined by the Supreme Court, as provided by Act March 3, 1891, c. 517, Sec. 5, 26 Stat. 827 (U.S. Comp. St. 1901, p. 549). But where the question appears in the record, in a case brought to this court as one arising under the Constitution and laws of the United States, it cannot be ignored and must be determined in disposing of the appeal. The jurisdiction of the Circuit Court upon constitutional grounds is based upon the following allegations contained in the bills of complaint (as the alleged rights are identical in both cases, reference will be made to the bill of complaint in the McGilvra Case):

It is alleged that the lands described in the complaint were purchased from the United States prior to the admission of the state of Washington into the Union; that said lands touched the waters of Lake Washington, and that the waters of Lake Washington constituted and were the boundary of the tracts conveyed as to every portion of said tracts touched by said lake; that the complainants became and were vested with the ownership of those portions of said Lake Washington immediately in front of the respective tracts out into said lake to the deep waters thereof. It is alleged that, under section 1 of article 17 of the Constitution of the state of Washington, the state of Washington asserts its ownership to the beds and shores of all navigable waters in the state up to and including the line of ordinary high water within the banks of all navigable rivers and lakes; that by virtue and authority of this provision of the Constitution the state of Washington claims the ownership in fee of all the waters and lands under water of Lake Washington, up to and including the line of ordinary high water, and by reason of said claims of ownership the Legislature of the state of Washington passed the acts mentioned in the complaint, providing for the sale of such lands, and that said constitutional provision seeks to confiscate without compensation, and if declared valid and of effect will confiscate without compensation, the rights of the complainants set forth in the complaint, and will divest the plaintiffs of their said property rights without compensation and without due process of law, all of which it is alleged is contrary to the protection guaranteed to the citizens of the United States by the fourteenth amendment to the Constitution of the United States.

And it is charged that the defendants, acting under the authority of the Constitution and laws of the state, are preparing to sell, and threaten to and will sell, the shore lands of Lake Washington lying in front of their lands, and threaten to take and convert into money the properties described belonging to complainants, without compensation to complainants and without due process of law, to the irreparable injury and damage of the complainants.

With respect to the constitutional provision of the state of Washington, it is sufficient to say that, while it asserts the ownership of the state in the beds and shores along navigable waters in the state, it expressly provides that it 'shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the state. ' There is, therefore, nothing in this constitutional provision depriving the complainants of any of their constitutional rights, nor is there anything in the statute of the state referred to in the complaint that deprives plaintiffs of their property without due process of law. In Newburyport Water Co. v. Newburyport, 193 U.S. 561, 576, 24 Sup.Ct. 553, 556, 48 L.Ed. 795, the Supreme Court said:

'If jurisdiction is to be determined by the mere fact that the bill alleged constitutional questions, there was, of course, jurisdiction. But that is not the sole criterion. On the contrary, it is settled that jurisdiction does not arise simply because an averment is made as to the existence of a constitutional question, if it plainly appears that such averment is not real and substantial, but is without color of merit.'

In Devine v. Los Angeles, 202 U.S. 313, 322, 26 Sup.Ct. 652, 657, 50 L.Ed. 1046, the court said:

'There being no diversity of citizenship, the jurisdiction of the Circuit Court could only be maintained upon the ground that the suit arose under the Constitution or laws or treaties of the United States, and a suit does not so arise unless it really and substantially involves a dispute or controversy as to the effect or construction of the Constitution or some law or treaty of the United States upon the determination of which the result depends.'

It is clear that the averments of the bills do not state any real or substantial question arising under the Constitution of the United States. Do they allege any question arising under any law of the United States? It is alleged in the complaint in the McGilvra Case that complainant's lands were purchased under the provisions of the act of Congress of the 24th of April, 1820, 'An act making further provision for the sale of the public lands,' approved April 24, 1820 (3 Stat. 566, c. 51), and in the Bressler Case that complainant's land was entered under the act of Congress of September 27, 1850, entitled 'An act to create the office of surveyor general of the public lands in Oregon, and to...