STAYTON KIN. CO. ". WOODY.
633
STAYTON MIN.
Co.
tI. WOODY
ee ale
(CircUit Court, N. D. Cali,forn:£a. May 9, 1899.)
1.
FEDERAL JURISDICTION-VALIDITY 011' RAILROAD GRANT-ADVERSE HOLDING.
In ejectment, plaintiff claimed title under a railroad land allegir.g as ground of federal jurisdiction that defendants denied tbe valIdity of the I'rrant. The pleadings and evidence showed that defendants not only asserted the validity of the grant, but themselves claimed title tbrough one holding under the grant. Held, tbat the action must be dismissed for want of jurisdiction. . An allegation by defendants that G., their predecessor in interest, at a certain time was holding the premises in controversy adversely to B., plaintiff's predecessor in title, who.beld under the railroad grant, there being no allegation that G. or his successors were so holding adversely to B. at the time the action was brought, was insufficient to show a holding adverse to the grant.
9.
SAME-PLEADINGS.
At Law. Action of ejectment by the Stayton Mining Company against M. F. Woody and others. Dismissed for want of jurisdiction. Joseph D. Redding, for plaintiff. CarroU Cook, J. E. Foulds, and William Hoff Cook, for defendants. McKENNA, Circuit Judge. This is an action Qf ejectment. To justify the jurisdiction of the court the plaintiff alleges that it derives title under an act of congress passed July 27, 1866, entitled" An act granting lands to aid in the construction of a railroad and telegraph line from the atates of Missouri and Arkansas to the Pacific coast," (14 U. S. St. p. 292,) and that defendants deny the validity of said act of July, 1866. The defendants, in a preliminary answer, not only directly traverse this allegation, but expressly admit the validity of said act of July, 1866, and, fortifying the answer, allege further a contract of plaintiff with one Griffen, whose successors they allege they are, by which plaintiff agreed to convev to him the title which it should receive from the Southern Pacific Railroad Company, and which it was negotiating for at tlie time {)f said contract. The plea ofdefendants was referred on the 14th day {)f September, 1891, to S. C. Houghton, Esq., described as a master in ehancery, to report his condusions thereon. The master took testimony, and reported February 8, 1892, "that defendants' plea is good." The plaintiff excepts to the report on the ground that the master's conclusions are not justified by the evidence, and defendants move for its eonfirmation and a dismissal of the action, and for costs. The parties have stipulated in writing waiving a trial by a jury. I have carefully considered the pleadings, argument of counsel, and the testimony, and eoncur with the master" that defendants' plea is good," and that this court has no jurisdiction of the action. The evidence shows that the defendants rely for defense not by denying the validity of the act of congress of July 27, 1866, but by asserting its validity; not by denying the title of the Southern Pacific Railroad Company, dependent on said act, but by claiming that title through an agreement with their predecessor in interest, one Griffen. But plaintiff's counsel says defendants claim to hold possession of part of the premises under a mining cl8,im, and
FEDl!mAL, REPORTEIr,
voL
versely to the Southern Pacific Railroad Company and the said acts of congress. I do The, allegation is that the defendants are iD,:possession of that portion of the ,premises called the "Cincinnati Mining Claim," and thatori the 22ddayofJuly, 1885, one GriffeIl;jW,l).,S.p.,olding and clll;imin,g the adversely to the said Southern Pacific Ra:iXroad CompanYihllt there, is 'no that Griffen or the de(¢ncll:\rltS;Q,rany of thepl, were'holditlg adversely to the Southern Pacifl.oRailro8.dCompiuly iwhen, the .broQgp.'t, or to anybody except to the plttintiff, ana only on account of the said contract. The as a)imi,tat,ion Qfdef¢l1dants' possession, and Ils'inQ<l1'cement .the. contract. Besides, Mr. (Jook defense to the .action will the ground, and no other than, the existence andefl'ectof such contract with Griffen. It is ordered, therefore, that the action be dismissed, and defendants have judgment· for' costs. ' . I :.
(Oirouitcourt; ·S. JmU$1>JOTJON 'Oll'
D.
11ay 16, 1892.) CJTtzIllNSRlP-PLEADJNG·
... . Where thGjurisdiction <;If
,is founde.d only on the tact}>f dive!'88 cltizenshiv. tjle complaint must show that either plalntti! or defendant resides within the dI8trict in Whioh the action isbrouA'ht.
OmCUIT'
. At Law. ' Action' byL. Laskey' and! A. R. Conklin against the Newtown MibingCompany. Demurrel'for want of jurisdiction. Sustained. 'Garber, Boalt &: BishOp,· forplaintift's. Reddy, OampbeU &: Met8on,·for defendant. ,Ross;'DistrictJudge. ,The complaint filed in this case, to which a demurrer is interpol3ed, shows upon its face diverse citizenship of the Jiarties, but it does not lJTIege that either the plaintiffs or defendant rallide within this judiciaJ. district; and ,the question presented and argued bY,counsel is whether, under the provisions of the present judiciary act, it is essential that the complaint should show that the suit is brought in the district oUhe residence of either the plaintiff or defendant, where, as, here, jurisdiction is fottt,rded only on the fact that the action is between citizens of different states.. The judiciary actof 1789, after prescribing the cases in which the United States circuit courts should have .original cognizance, provided as foUowa: .. And no civil suit shall be brought hefore either of said courts against an 5nhabitant of the United States by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found ut the time of serving the writ." 1 U. S. St. at Large, p. 78 et seq.