MAFFE'l' V. QUINE.
QUINE. July 8, 1899.)
(Circuit Court, D. Oregon.
JURISDIC1'ION OF FEDERAL COURTS-AMOUNT IN Cm:TROVEIlSY.
It is sufficient to sustain the jurisdiction of a circuit court, where the requisite jurisdictional facts are shown by the complaint, that it does not at any time thereafter satisfactoril:\' appear to the court that the suit does not really and substantially involve the Jurisdictional amount.
A suit to enjoin the defendant from destroying a flume where it crossed his land involves the value of the flume as an entiret:\', and where such value is admitted to be $2,000, and it is further admitted that defendant had, prior to the suit, partially destroyed the flume on his land, rendering its repair necessary, damages for which injl1l'y the plaintiff might recover in the suit, the jurisdictional alllount satisfactorily appears. Where a cause has been fully argued and submitted on all the questions involved, and the court enters an order of dismissal for want of jurisdiction, which order it afterwards sets aside, the defendant is not entitled to reargue the case upon the other questions involved. 'Where' an appropriation of a right of way for a flume, such as congress has authorized upon unoccupied public land, is made upon granted, but unearned, railroad land, and subsequently the land so occupied is forfeited to' the government, the appropriation is effective, so far as the government. is concerned; and, a: homesteader, whose settlement was begun before the forfeiture, but subsequent to the location and construction of the flume, takes subject to the burden of such flume.
EQUITY-SUBlIUSSION OF CAUSE-RIGHT OF REARGUMEN'l'.
HIGHT OF WAY OVER PUBLIC LANDS.
On Petition for Rehearing.
For former opinion, see 93 Fed. 347.
BELLINGER; District Judge, In this suit the plaintiff seeks to enjoin the defendant' from tearing doWn and destroying a certain flume, constructed and in operation prior to the commission by the defendant of the aets cdillplained of, across thepremisf.'s of the d.!?fendant, and used iIi eonnection with certain ,vater rights and with the carrying on of the lumber business owned and carried on by the plaintiff and her lessees. The case was heard upon all questions involved, and thereafter the court dismissed the complaint for want of jurisdietion, upon the ground that it did hot appear from the evidence that the amount in controversy was of a value exceeding $2,000. Upon petition for a rehearing this order was set aside, the court being of the opinion that the order of dismissal was erroneous, and that the court was not without jurisdiction; and thereupon, and upon consideration of the other questions involved, a decree was rendered in favor of the plaintiff, as prayed for, perpetually enjoining the defendant from the commission of the acts complained of. The defendant files his petition asking for a rehearing. Upon this petition the defendant seeks a re-examination of the question of jurisdiction, and renews his contention that the complainant failed to introduce testillIony tending to prove the present value of the flume, or the matters in eontroversy, and asks that an opportunity be given to the defendant to present to the court the state of the testimony and of the authorities upon this issue. The petition for a rehearing makes the further point that the defendant was denied leave by the court, upon
95 FEDlj:RAL REPORTER.
the hearing of the motion for a preliminary injunction, to amend his answer so as to admit proof that the land in question was within the grant to the Northern Pacific Railroad Company at the time plaintiff's grantors entered upon the same and constructed their flume, and the further point that the act of forfeiture of the railroad grant provides that the qualified homesteaders upon the land at the date of the forfeiture for six months thereafter should have the exclusive right to enter the land under the homestead laW's; the contention as to this being, that by this provision the homestead right of Quine, the defendant. attached prior in law to thetimeofthe location theretofore made, and while the land was still covered by the grant. The rehearing is further asked upon the ground that the counsel for the defendant understood that this case would not be decided upon the merits without further hearing, but would be decided simply upon the question of jurisdiction; and he therefore pleads surprise, and asks that the case be reopened for further arguments as to the other questions, at least, decided by the court. The question of jurisdiction in this case has been fully considered, and there is nothing in the authorities cited in this petition that affects the conclusion reached on that question. I am satisfied that it is enough to sustain the jurisdiction that the complaint shows the amount in controversy to exceed in value the sum of $2,000, and that the contrary of this does not appear to a legal certainty from the evidence. In Barry v. Edmunds, 116 U. B. 558, 6 Bup. Ot. 501, it is held that the court is not at liberty to dismiss a suit upon his personal conviction that the amount involved is le,ss than that required to give jurisdiction, unless the facts on which the persuasion is based are such as to create a legal certainty of the conclusion basad on them. In tbis case there was no personal conviction of the court, from the evidence in the case, that the amount in controversy was less than the jurisdictional amount. Tbe action of the court was based solely upon the fact that the evidence failed to establish the allegation of the complaint as to the value of the subject-matter of the suit. The answer admitted the value, up to the amount of $2,000; and there was testimony tending to show that the property in eontroversy, together with other property, had been sold previously for the sum of $8,000. is therefore no inference in this case that the amount stated in the declaration was merely colorable. The suit is torestrain the commission of a tort, and is therefore one where exemplary damages might be allowed; so that, in any view of it, it is not a case where a rule of law fixes the limit ofu possible recovery. The same doctrine is laid down in the case of Wetmore v. Rymer, 169 U. B. 115, 18 Sup. C't. 293. For the defendant, the eases of Oleson v. Railroad 00.,44 Fed. 2, and Cameron v. U. B., 146 U. B. 535, 13 Bup. ct. 184, are cited. Neither of these cases ,has any bearing on the conclusion here reached. .The case of Oleson v. Railroad 00., was a suit for an injunction to restrain the operation 'by the defendant of a certain railroad, alleged have been unlawfully co.nstructed on a public highway. The case was presented for the complainant upon ,the assumption that the value of the railroad (which was alleged to be of the value of $6,000) was the amount in dispute. But the court held otherwise. It
MAFFET V. QUINE.
was not the value of the railroad, but the value of the use of the road, which the plaintiff sought to enjoin, by the defendant, who was operating the railway as a lessee, that constituted the thing in controversy. So, too, of the case of Cameron v. U. S., which was a proceeding to compel the defendant to abate a wire fence with which he had inclosed 800 acres of the public lands of the United States, as alleged in the complaint, without title or claim or color of title thereto. In this case the value of the land was not the measure of the amount involved in the controversy. The value of the color of title to the property, "which is hardly capable of pecuniary estimation," and, if otherwise, of which there was no evidence of value in the case, constituted the subject-matter of the suit. This question is very fully considered in the case of the Bank of Arapahoe v. David Bradley & Co., 19 C. C. A. 206. 72 Fed. 867. The decision of these cases is upon the statute of 1875, which provides:
"That if, in any suit commenced in a circuit court, * · * it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought, * * * that such suit does not and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, * * * the said circuit court shall proceed no further therein, but shall dismiss the suit."
So that it is enough to sustain the jurisdiction-the jurisdictional facts appearing in the complaint-that it does not at any time thereafter satisfactorily appear to the court that the suit does not really and substantially involve the jurisdictional amount. But in this case the jurisdiction need not depend upon this principle, although its application is decisive of the question. The answer admits that the flume in question is of the value of $2,000, and this value is one of the things involved here. If the defendant is permitted to destroy this tlume where it crosses his land,. the flume property as a whole is destroyed, and the plaintiff suffers loss in the amount of its value. But it is also claimed that the act of the defendant in breaking down and destroying the flume makes it necessary for the plaintiff to go to great expense in making repairs. The answer alleges the fact to be that such repairs can be made for $10. This is an admission of damages made necessary by the repairs required, in addition to the value of the flume, of at least that amount; and in this suit the court might award such damages to the plaintiff, as well as exemplary damages, either of which would make the amount in controversy above $2,000. As to the claim made by the defendant in this petition, that he has been surprised in the decision of the court without further argument, it is enough to say that all questions involved were argued at length, and fully presented, with a view and in the expectation that the court would consider them. The fact that the bill was dismissed for want of jurisdiction, and this order of dismissal afterwards set aside, does not make it necessary that the other questions presented in the case, and not passed upon, should be reargued. There is no room for surprise to the defendant in the fact that he has not been allowed an opportunity to argue these same questions
ovel' again. the petition fo.rrehearing presents nothing not already considered by cQurt. AI!I to the point .that the <;ourt refused leave to amend, so as to enable the defendant to prove; that the land in question was covered by theiNOl'therm Pacific, Railroal1grant, it is !3nough to say that this question is 'wholly immateriaL ,That 'fact is conceded,and the court takes accQuntof it in the conclusion: reached upon the merits. It does not 1llter the case that the. act of congress gives homesteaders anexdusive right, for six months after. the forfeiture, to enter the forfeited lands under. the homestead laws. This is a mere preference; It in no wise affects the title taken by the homesteader, and dOes not enlarge his rights over what they wouldbave been without this preference. As between the defendant and another seeking title under the lJ.omestead laws of the Unite4 States; the statute would operate to give the defendant the better right. Neither this statute, nor the.fact of the prior grant to the Northern can affect the .fact that Quine, the defendant, takes b.is title from the government. After the forfeiture, the title to this land was reinvested in the govei'nment, and passed from the government to. Quine, and he took tbi's title subject to the locationo'f' the plaintiff's flume under the acts of congress. There is an express reservation in the patent to the defendant, whioh shows'thatii 'was ROt the purpose 'of congress to convey: any right inconsistent with that held under such a location. This land· was' liable to the imposition of: this burden, while the titlerwasin the government, andsq of any rightilin the government at 'the time the fiUJllle was built.. The railroad ,company did not complain, and the government could not,sinee what was done was in conformity with public policyllnd was authorized: by law. In short, the title and all rights and interests relatingtQthis land were eitheldn th6raHroadlXlmpany or ip the government when the flume was built, ·'and· the' appropriation was acquiesced in: by the former, and exptiessly authorioodbythelatter. 1]'he IdcatHmand construction of'thisllume upon 'granted lands of the railway company, with thatcompa.ny, was, n9t unlawful l so far as the governmem1f ;was concerned.: The latter expressly; ;authorized this very thing-ias.to and I conclude that any: location authorized by, the gorvernment upon the .public: domain is. as effective, 'so :far as the. government is concerned,when ,made Upon lands snbjeotto forfeitureias though :theforfeiture bad ,already taken place. The defendant took his homestead with the burden thusc:t:.eated; 'BrUte terms ofdiiis patent hig"titIe was made "subject to any vested, anditac/)rued water rights formlningj agricultural, manufac' tur4Ig oll'Otbe1'purposes, -and rights to ditches usedti:nconnectiQn with such water'l"ights, as!imay be recognized :by the localeustoms,': etc.; and so .taRing" he acquiesced in the operation of the:flume,.in question overhislandAor some seven years from the date of his patent, and then cornmittedtbeactseomplained of in retaliation for a grievance growing 'out: of imother transaction which, he claims to have suffered. ', The petition for a rehearing is denied.
LINKSWILER v. SCHNEIDER et al. (Circuit Court, N. D. Iowa, W. D.
July 3, 1899.)
JURISDTC'l'ION OF FEDERAL COURTS-SUIT TO DETERMINE RIGHTS IN PUBJ,Ie LAi'iDS.
A suit·· to determine conflicting claims to tlle right of entry of public lands is one arising under the laws of the United. States, and a federal court hilS jurisdiction Withollt regard to the citizenship of the parties. 1
PUBLlC LANDS-RIGUT TO ENTRy-REVIEW OF DECISION OF LAND MEN'!'. DEPART·
Uuder Act March 3, 1887 (24 Stat. 556, § 4), which provides that puxchasers in good faith from a railroad company of lands which have been erroneously certined or patented under a grant, if citizens of the United States, shall be entitled to such land, and which commits the determination of the question of their good faith to the land department, the finding of such department in fayor of the good faith of a purchaser will not be disturbed" unless clearly shown to have been based on an el'1'oneous con· struction of the law. 2 The fact that, at the time a contract was made for the purchase of land from a railroad company, its road was. not completed, and its grant not fully earned, though it was built beyond· the point where the land was sitimted. and that it was subsequently determined that the land purchased did not pass to the company, because it had previously received and disposed of as much in quantity a!r it had earned, cannot charge the purchasel' with knowledge of facts which would, as a matter of law,afl'ect the good faith of bis purchase.
3. SAME-RAILROAD GUANTS-RIGHTS OF PunCIIAsER ON FORFEITURE OF GRANT.
On Demurrer to Bill. for complainant. A. p. Lowry and O. P. E. R.Evans and W. P. Jewett, for defendantli!SHIRAS, District Judge. The general purpose of the bill herein filed is to obtain a decree adjudging that the complainant is entitled to enter as a homestead, under the laws of the United States, the N. W. t of section 5, township 95 N. of range 42 W. of the fifth P. M., situated in O'Brien county, Iowa; it being averred in the bill that the land department, wrongfully, unlawfully, and against the daim and protest of complainant, issued a patent to the land, under date of August 5, 1898, to the defendant John Schneider. According to the averments of the bill, these premises formed part of the land granted by congress, under date of May 12, 1864, to the state of Iowa, to aid in the construction of a line of railway from Sioux. City to the Minnesota state line, but the title to which ultimately reverted to the United States, by reason of. the failure of the Sioux: City & St. Paul Hailroad Company to fully complete the line to 8iouxOity; the same having in fact been built from the Minnesota line to Lemars, Iowa, and no further. Based upon the failure to construct· the railway from Lemars to Sioux Oity, and under the
1 As to federal questions and jurisdiction of United States courts gener31ly see note to Bailey v. Mosher. 11 C. C. A. 308. ' 2 As to review of deCisions of land department, see uote to Hartman v.War. I'l'n, 22 C. C. A. 38, and Carson City Gold & Silver Co. v. North Star Min. Co., 28' C. C. A. 344. ., . .