1140

Los

I'EDERALREPOR'l'ER,

vol. 48.

'D. HOFF

ANGELES FARMING

& MILLING CO.

et aI.

(Cf,rcuit Oourt, S. D. Oalifornia. December 7,1691.)

1.

REMOVAL OF CAUSES-FEDERAL QUESTION-PETITION.

A petItion for removal, which merely avers that the determination of the controversy involves the construction Of the homestead laws of the United States and the validity of a patent from the United States, but fails to allege any facts from whlch the couri may see that such questions do actually arise, is insufficient.
. .

ll.

". J:n an ejectment Butt remoV.ed to a federal court the pleadings showed that plaintiffs had been in possession 1under' a patent :issued in con:fl.rination of' a Mexican grllut,for maUyyears before defendants Defendants denied that the lands were subject to grant, and also doij.ied the validity of the confirmation of the grant and of the' patent issued thereon" and they claimed the land wall Subject to home. stead entries. aeld, tl:1at theee, pleadings raiee no federal. q)1oeti,on,to .enable the court to retain jurisdiction; for'deferidants, being strangers to the paramount title; , oannot question the validity of plaintiff's patent. . .

SAME-'EJEOTMENT-]\bxICAN

lL

whethl,lr the land, SUed Included in . ',' the'g'l'$it, aB'defined tfy the patent, presents no federal 'questiorl, as'lt merely in;,v<!lves lqoation of boundary; lines. . ,.;"

. (;)n motiQnto remand. Action by.. Farming:& MilUng Company against Hoff and others.. Stephcfl" M. White and Grave8, 0'lI1elv.eMJJ &: Shankland, for plaintiff. H. Bleecker and John D. Pope; for deJendants..
Ross; J. This action was:commenced on the 24ih of October last in the superior court of Los Angeles county. It is an action Of the 'complaint being duly verified. In it, it is, among other things, alleged ,that the plaintiff is, and has been for many years continuously last in fee and in the possession of the tract of land upon .which the, alleged to have entered OD !the 8th day of 00tober, 1891, and from which they are aUegecito havlvthen ousted the plaintiff, consisting of a part, embracing many.thousands of acres, of tM Rancho San Fernando, for which rancho it is alleged Ithegovernment of the United States, on the 8th of January, 1873, duly issued and delivered to one Eulogio F. De Celis a patent, in confirmation of a Mexican grant therefor to him made June 17, 1846, by Pio Pico, then governor of the department of the Californias, and whose title to the portion of the rancho here in controversy it is alleged vested, through various mesne conveyances, in the plaintiff long prior to the defendant's entry upon the premises. It is alleged that the patent so issued has never been set aside or modified in any respect, and that it is still in full force and effect; that for 20 years last past plaintiff' and its predecessor in interest have been continuously and uninterruptedly engaged in farming and pasturing the portion of said rancho so. owned and possessed by them, and have produced annually large crops of grain thereon, and have erected and maintained at great expense numerous farming stations thereon, and have reduced large areas of said land to a high state of cultivation. It is upon land so patented and possessed that defendants
l

LOS ANGELES FARMING & MILLING CO. 11. HOFF.

341

are alleged to have entered, and from which they are alleged to have

ousted the plaintiff. The defendants are many in number, and many of them were sued by fictitious names, their true names being, as alleged, unknown to the plaintiff. In the superior court counsel appeared for "the defendants," without naming any of them, and in their behalf moved that the case be removed to this court, stating in the petition therefor, in addition to the value of the property in dispute, "that the controversy in said action involves the construction of the statutes of'the United States respecting the location of homesteads on the public lands thereof, and a determination of the rjghts of the petitioners, who claim an interest in said, lands, as bona fide holders of homestead .locations thereon; and said controversy also involves the determination of the validity of the alleged patent of the United States under which plaintiff claims to own the premises described iothe compll;lint, which patent fendants .claim. is illegal, fraudUlent, null, and void.". , At tinw' the. petitioners tendered a bOlla, with the required conditions,' sIgned by' one of the defendants as principal and by two sureties. .The bond w.as accepted by the supeilorcourt and the order of removal made. Upon the filing of the papers in this court a motion was made by the plaintiff to remand, the case to the state' court. 'Before its hearing an amended to the petition was filed on behalf of the defendants, and also an complaint. ' . . . .. .," The. provisions of the act of congress under which it is on behalf Qf the defendants· the case was properly removed, and. should .be . retained.here, arp. as follows: "That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of,a civil nature, at commoIllaw orineqtiHy, where the matter in disputa exceeds, ,exclusive of interest the sum or value of two thousand dollars, and arising under the constitution of the United States;" and "that any suit. of 8 civil nature, at and law odn equity, arising under the constitution or laws of tbeUnited States, * * * of which the circuit courts of tbe' United States are be given original jurisdiction by the preceding section, whichrnay pending or which may hereafter be brought in any state court, 'qw.y be removed .1;>Y the defendant or .defendants therein to the circuit court of the United States for the proper district." 24 U.S. St. at Large, 552. The original petition filed on behalf of the defendants, and on which the order of removal was made, did not.ll41te a single fact upon which the court could exercise its judgment a'nd,determine whether tbesqit in question did or did not arise under of the U:nited States;, .. 'rhe statement iprespectto that matter in petition was confineg.solely to the conclusions of the petitioners,which are manifestly insufficient. It is the duty of the parties to state the facts, and the provincebfthe court to declare the conclusi<llls.The defendants cannot raise a federal issue siuplyby saying that it exists. . lOs essential thatfadts from which .ilIe court can that such a question wjIl be involye(f; , In . Trafton v. NougueB, 4 SawY.· 18S, Judge SAWYER, in construing ,3 petition. forl'eInQval, .said:

342

FEDERAL REPORTER;

vol. 48.

"The allegation is that toe 'right to said mining ground by p1llintUT de,pendl!, upon the laws of congress, and .the right or title of ant t{) min,iIlg groun4 must also be determined, by the acts of congress under which defendant and petitioller claims title, and that the right of tbe plaintiff as against the defendant must be determined under the laws of tbe ·eongress of the United states;' This is, in substance, tWo or three: but it is only the statement of a legal conclusion, rather than a;faot, and a conclllsi{)n manifestly founded upon the general idea that all m are so held ,that an action relating thereto, involv jng the rights of the, parties to the mine, necessarily arise upder the acts of congress. within the Ineanlng-of the act giving jurisdiction to the national courts,.-an erroneous conclusion, if I am right in the views above expressed. These allegations'expressrnerely the opinion of the petitioner that the jurisdictional question will arise. In my judgment, sucb averments are insufficient to justify a or reti\ining the case now brought here. The precise facts should be stated out of which It is supposed ,the jurisdictional question will arise, and how it will arise should ,be pointed out, so thaL thfl court can determine for itselt :whetlter the case 18a proper one, for consideration in the national ' , ' courts." The amendedpetition9,ontains, in addition to the statements set forth in the petition, the following: .. And Petit!oDE\rS say that they do ingQOd faith claim possession and the rightyf possession to descrfulld In plaintiff'scomplslnt by virtue of 1lol1lestead locations made under the laws of the United States; and they say that ,they deny that ever w.as any MeX:ican grant, or. any other kmd or description of Krant, to the landsdescriued In the complamt herein, or any part thereof, to the said i Eulollio 'F. De Celis. They allege that the lands describedJn the complaint weremislIion lands at the date of the alleged grant mentioned in the cOxnpbtint;and they deny that Pio PillO, as constitutional governor",or otherWise. had soy right, power, authority, 01' jurisdiction to grilnt lands, or allY part thereof. They allege that the decree of confirmation ()f said pretended, grant, under and by virtue of which it Is claimed' b)-plaintiff that a Jhlteot was issued to said Euloglo F. De Celis, did not cover ,or:indude any part of the premises described In theei>m pIal nt; that said decree of cunlirmatioll, Qnlyconlirmed tasaill Eulogio F. De Celis fourteen leagues or sixty-two thousand two, hundred and sixteen acres; that the lanql;lsq <,'9pfirmed t9 the said Eulogio 1<'. De Celis were bounded <tn the north by the'1ta.ilcho tlan Francisco, on thll west uy the Santa Susanna mounton the "ast by the Rancho Miguel, and on the south by the Portezuelo; thltt said boundaries did not cover or in'clude any part of the lands demanded in the and, that said alle/too patent, if the same' does cover or include any part Of the said lands, is lllegill, fraudulent, null, and void."

by the defen,dants is as follows:

'''(1) The! that thereev\,rwas any Mexican grant, or any, othet'kind ordescriptiorl Of grant. to the lands dt'scribed In the complaint herein, or any pal't Lht'reof; tl> the said Eulogio F. De Celis, (2) TIley, allegej;oninformatron.'lmd beIief,that the landsdeacribed in the complal!lt,i\Vere rnission lands:at.the date of said alleged grant; and they dpny, on be,lief, or lltherw ise. had au)' or to grapt said land!!. or any ,. (3) T.heY on inforp1ut"ion and ,that of confirmatIOn of saId pretllliffed grant'Inder',l\nd wInch lt IS alleged' intbe complaint that Ii patent' was 'issued' to the said Eulogio F. De Celis did Dot cover or include any part of the premiseQdescribed in the cow·

LOS ANGELESFARMniG " MILLING CO. tl. HOFF.

343

plaint; that said decree ofccinfirmaf.lononl;yconfirmed to said Eitlogio F. De Celis fourteen leagu 's onand, or sixty-two thousand two hundred and sixteen aereR; that the lands so confirmed to the said ::EulogiO F. De Celis were bounded on the north by the Rancho on the west by the Santa Susanna mountains, on the east by the Hancho Miguel; and on the south by the Portezuelo, and that said boundaries did not cover or include any part of the lands demanded in the complaint; and that said alleged patent, i·f the same does cover or Include any part offsaid lands. is llIegal, fraudulent, null, and void. .(4) As to whether the said alleged patent to;the said Eulogio F. De Celis, as issued, covers or ,includes all the Jands demanded in the .complaiIlt, or as to what partor portion of said premises 1s covered or 1nCludM in. said pt'etended patent, or whether the premises in possessioh of defendants, or either ,of them. are withln the boundaries of said alltiged patt'nt, defendants have not suftieientinfol'I'oation or belief to enable them to answer, and that ground they deny that said pretenlle!l patent covers 01' includes the slJ,id deDlanded prewises. (5) allege · .in good. faj,th, clalpl possession and the. right of. possesllion,to described in complaint, in sevehilty and not jointly, by' vittue of homestea.d locationS made under the laws of the United States." As already observed, the law is thai,before this court can be rethis or any similar suit quired to retain, or can be justified in under its jurisdiction," the record must show a state' of facts from 'which the court can see thatJhe suit is one reallyalld substantially involves a dispute or controversy as to s' right which depends upon the constru,cti?n or effect of some law of the United States. By the plea.d.. ings of 'the parties to ,ih:e . suit the fact stal,lps. admitted at the time of the entry of the defendants upon the premises in question the plaintiffwas, and' forirlany. years had; been, in the actual possession and enjoyment of the land under a patent issued' by' the government the'UhitedStates to the predecessor in interest of the plaintiff, in; firmation of a grant made to him therefor b.y the Mexican government. defendants deny, that any Mexican grant was ever macJ,e to De Celis for the land in .question, and deny that Pio Pico,. as governor()f the Californias, had any power to grant it; and they allege that the,lands ptu,ported to have been granted by·him were mission lands; thel', that the dect-eeof the United States tribunals confirming the grant did not include the lands in . The answer to all of this is thl1t those are matters thatdollot concemthe defendants. The record tains no fact tending to connect them with the title to the property Or with the government of the United States. If there well and thor{)ughly settled with respect to patents issued by this·governmentin COllfirmation or Mexican grants, it is that they conclusively establish the VlIr lidityof the grant upon which such patents are based, and the correctnA;ll!B .ofthelbcation of the land granted, as against strangers tothe source of title, as are the defendants. The facts admitted by ings show them to be ,mere intrud'ers upoIi the possession of the party holding, under the solemn patent issued by the government of the Un\ted States in recognition and confirmation of the grant made by Pico to DedeUBi.:'.Msuch trespassers, they carinotbehelitd atall to. questiori'the \t'alidity'ofthe grant upon which the paten,twas based,

0'

844

FEDERAL REPQRTER,

vol. 48.

ness of the location of the granted lands by the officers of this government:wl:lOse duty it was to locate them. Smelting Co. v. Kemp, 104 U, S.645;French v. Fyan, 93 U.S. 169; Marquezv. Frisbie, 101 U. S. Q. $.. v. Atherton, 102 U. S. 372; U. S. v. Schurz, Id. 404; Patter3 Sawy. 172; (Jhapman v. Quinn, 56 Cal. 266. Thoseare questions with which defendants can have nothing 10 do. In respect to lands so, patented it is impossible that any question under the homestead laws of the United States can arise, so long as the patent stands, for ,those laws apply obly to the lands of the government. Theissue or not the lands in controversy in this suit are embraced by the grant to De Celis, Rsdefined in the patent, presents no federal question. It merely involves the location of the boundary lines. These views render it unnecessary to consider the technical objections made to the bott'd; An order "'ill be entered remanding the case to the state It came, at the cost of the parties bringing it here.

& .MANUF'G Co.

t:I. MANHATTAN

EL. Ry. Co.

(Circuit Court, {S. D. New :York. November 7,18lJL)
EQUITY l'R.lCTiCiB-MOTION lIOR DECRBBON, BILL AND ANSWER.

tor a decree upon bill and answer must be made, not at ohamber.. the equity term after the cause is put upon the calendar.

In Equity. Suit by. the CarripbellPrinting-Press & Manufacturing Company against the Manhattan Elevated Railway Company for infringement: cif. a patent. On motion for an injunction pendente lite and for a decree for an accounting. Denied. . Tha:patent in question in this case is No. 401,680, issued April 16, 1889, tlYEdward S. Boynton, assignor of the complainant, for an improvemehtin valves for pneumatic pipes or tubes. A motion for a preliminary injunction was denied by Judge LACOMBE, (47 Fed. Rep. 663,) and the defendant then filed its answer, admitting the validity of the patent in suit, title, and infringement, but denying that it had ever made any gains or profits by reason of its unlawful use of the patented devices. and also denying that it had thereby damaged the complainant except nominally. Tothis answer a general replication was filed; and thereafter complainant moved, upon the bill, answer, replication, and all proceedings had, for an order directing that defendant be enjoined pendente lite; and for a decree for an accounting pursuant to the prayer of the bill; sucm other and further relief as to the court might seem just. Oharle8 D6 Hart BrWJer and Philip R. Voorhies, for complainant. Da'lJie8,SiMt &TOW1l8end and Ma'!fMdw& Beach, for defendant. BROWN, J. The settled practice of this circuit is that, upon a billand !l.nswer, application for judgment must be made, not at chambers, but at