Opinion
A. W. Lafferty and Arthur I. Moulton, for appellant.
Moulton & Scobey and W. H. Fowler, for appellee.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
GILBERT, Circuit Judge (after stating the facts as above).
The court is compelled of its own motion to inquire whether the court below had jurisdiction of the controversy. No diversity of citizenship is alleged, and jurisdiction was assumed evidently upon the ground that a federal question is involved. A cause may only be maintained in the Circuit Court of the United States on the ground that it arises under the Constitution and laws of the United States when it does really and substantially involve a 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, and this must appear from the plaintiff's statement of his own claim, and cannot be aided by allegations as to defenses which may be interposed. Devine v. Los Angeles, 202 U.S. 313, 26 Sup.Ct. 652, 50 L.Ed. 1046.
Page 827.
What law of the United States, one construction of which would sustain and the other would defeat recovery, is involved in the present case? Clearly no question of the construction of any provision of the homestead laws is presented. The bill alleges, and the answer does not deny, that the appellant has a subsisting, uncanceled homestead entry upon the land in controversy, and that proceedings have progressed so far as to entitle him to a patent. The bill alleges, and it is not denied, that the appellee has taken possession of the land in controversy. The bill does not allege that such possession has been taken under any claim of right, nor does the appellee in his answer assert any claim of right under any provision of the land laws of the United States, or under any grant or deed. In brief, the situation presented by the pleadings is this: The appellant has acquired the equitable title to his homestead, and, although proceedings have been instituted to set aside and cancel his entry, it has not yet been canceled. During his absence the appellee jumped the claim, and now holds possession in the expectation that the entry will be canceled, whereupon the appellee will exercise his right to make entry of the land under the homestead law. Under the admitted facts, the appellant is undoubtedly entitled to the possession of the land. It does not follow, however, that he has a right of action in a federal court. His allegation that, if possession were restored to him, he would, on the cancellation of his homestead rights, be in a position to sell out his improvements to another, does not present a federal question. The right of such a settler to transfer his possession and sell his improvements depends on no statute, and it cannot be seen that in dealing with any phase of the controversy which is here presented the court will be called upon to construe or apply any law of the United States. Butler v. Shafer et al. (C.C.) 67 F. 161; King v. Lawson (C.C.) 84 F. 209; California Oil & Gas Co. v. Miller (C.C.) 96 F. 12; State of Washington v. Island Lime Co. (C.C.) 117 F. 777; Bushnell v. Smelting Co., 148 U.S. 682, 13 Sup.Ct. 771, 37 L.Ed. 610; Budzisz v. Steel Co., 170 U.S. 41, 18 Sup.Ct. 503, 42 L.Ed. 941; Shoshone Mining Co. v. Rutter, 177 U.S. 505, 20 Sup.Ct. 726, 44 L.Ed. 864; Mountain View Min. & Mill. Co. v. McFadden, 180 U.S. 533, 21 Sup.Ct. 488, 45 L.Ed. 656. The case is unlike Jones v. Florida C. & P.R. Co. (C.C.) 41 F. 70, McCune v. Essig, 199 U.S. 382, 26 Sup.Ct. 78, 50 L.Ed. 237, and Spokane Falls, etc., Ry. Co. v. Ziegler, 167 U.S. 65, 17 Sup.Ct. 728, 42 L.Ed. 79. Decision in the first two of those cases depended directly upon the construction of the terms of the homestead act, and, in the third, upon the construction of the pre-emption act.
The decree dismissing the bill is affirmed on the ground of lack of jurisdiction.