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CASES

ARGUED AND DETERMINED

IN THB

UNITED STATES CIRCUIT COURTS OF APPEALS AND THE

CIRCUIT AND DISTRICT COURTS.

NOONAN V. DELAWARE, L. & W. R. CO.

(Circuit Court, S. D. New York. May 14, 1895.) 1. UNITED STATES COURTS-JURISDICTION-DEMUKRER.

A citi: of New Jersey sued a citizen of Pennsylvania in a federal court in New York. The defendant appeared generally, and demurred for want of jurisdiction. Held, that the objection that the action was brought in the wrong district was waived by the appearance, and was not raised

by the demurrer. 2. PLEADING-ACTION ON STATE STATUTE.

The action was founded on a statute of New Jersey, which was not pleaded. Held that, as the courts of the United States take judicial notice of the laws of the several states, the right could, nevertheless, be enforced by the federal court in New York.

This was an action by John Joseph Noonan, as administrator of James A. Noonan, against the Delaware, Lackawanna & Western Railroad Company, to recover damages for the death of his intestate. Defendant demurred to the complaint for want of jurisdiotion, and also on the ground that the complaint did not state facts sufficient to constitute a cause of action.

A. G. Vanderpoel, for plaintiff.
Hammond Odell, for defendant.

WHEELER, District Judge. The plaintiff is a citizen of New Jersey, suing as administrator, appointed in New York, for the death of his intestate in New Jersey; and the defendant is a citi. zen of Pennsylvania, having its principal office in New York. The personal; and not the represented, citizenship governs as to the place of bringing suit; and, under the act of 1888, this suit could properly be brought only in the district of New Jersey or a district of Pennsylvania. But it is between citizens of different states, and it could properly be brought in the circuit court of the United States for some district. The right to have it brought in such district could be waived, and would be by a general appearance in it, if brought in some other district and making defense.

7.68 f.no.1—1

Ex parte Schollenberger, 96 U. S. 369; Bank v. Morgan, 132 U. S. 141, 10 Sup. Ct. 37. The appearance here was general, accompanied by a demand of service of all papers upon the attorney appearing. The irregularity as to place was thereby waived. The demurrer raises the general question of the jurisdiction of the court over the subject-matter of the suit, but not that of this irregularity. That no law of New Jersey is alleged giving such an action is set down as ground of demurrer; but that the courts of the United States take judicial notice of the laws of the several states which they are called upon to administer is well settled. This right of recovery can be enforced here. Dennick v. Railroad Co., 103 U. S. 11. The statute gives the action to the administrator for the benefit of the widow and next of kin, with damages with reference to the pecuniary injury resulting to them; and this complaint alleges damages to the next of kin, which seems to be sufficient. Demurrer overruled.

ST. PAUL, M. & M. RY, Co. et al v. ST. PAUL & N. P. R. CO.

ST. PAUL & N. P. R. CO. V. ST. PAUL, M. & M. RY. CO. et al

(Circuit Court of Appeals, Eighth Circuit. May 6, 1895.)

Nos. 455 and 456.

1. FEDERAL COURTS-JURISDICTION-FEDERAL QUESTION.

If it appears from the plaintiff's complaint that, in any aspect which the case may assume, the right of recovery may depend upon the construction of federal statutes, and if the right of recovery, so far as it turns upon the construction of such statutes, is not merely a colorable claim, but rests on a reasonable foundation, a federal question is involved which is ade quate to confer jurisdiction, although the right of recovery is also predicated on other grounds, not involving federal questions, and although the case is ultimately decided upon grounds not involving the determination of

any federal question. 2. SAME-CLAIM MERELY COLORABLE.

A case which, in fact, depends for its decision upon questions of local or general law, cannot be brought within the jurisdiction of the federal courts by a reference in the complaint to a federal statute, and by setting up a merely colorable claim thereunder, nor because it may be found necessary to consult some federal statute to ascertain the meaning of a

contract or the scope and effect of a local law. 3. SAME_TITLE DERIVED FROM UNITED STATES.

The federal courts, do not acquire jurisdiction of a controversy in respect to the title to lands because the title was derived originally from the United States unless the controversy involves the construction, meaning,

or euect of the granting acts. 4. STATUTES-CONSTRUCTION--FORFEITURE OF LAND GRANT.

The state of Minnesota conferred upon the S. & P. Ry. Co. the interest of the state in a large quantity of land granted to the state by congress, in aid of the construction of a railroad, by certain acts which provided that the title to the lands should only be acquired as the road adjacent to the particular lands was completed. By subsequent proceedings, the S. & P. Co. was practically divided into two corporations, the second known as the F. D. Co. The F. D. Co. constructed a large part of the road, and the governor of the state, acting in his official capacity and upon the supposition that such lands had been duly earned by the F. D. Co., conveyed large quantities of land to it, including some land beyond the furthest point to which the road was built. The deeds were duly recorded at the times when they were made, in 1866 and 1871, and the F. D. Co. sold and conveyed large amounts of the lands covered by them. The S. & P. Ry. Co. 'having failed to construct a part of the line, the legislature of Minne sota, on March 1, 1877, passed an act to provide for its completion, forfeiting the grants previously held by the S. & P. Co. appertaining to the uncompleted portion of the line, and authorizing any corporation organized to build a railroad in the state to acquire the right to complete the line, and, upon so doing, and complying with the act, to be invested with the rights, lands, and property appertaining to the portion of the road it should complete, and formerly held by or belonging to the S. & P. Ry. Co. This act contained provisions for reserving part of the lands by the state, to pay claims for labor and materials used in completing the road, and excluding any corporation which should take advantage of it from acquiring title to any land in the grant upon which any settlement had been made or pre-emption claim filed. It did not appear that, at the time of the passage of this act, the validity of the deeds executed by the governor in 1866 and 1871 had ever been questioned. The complainant corporation complied with the provisions of the act, and completed the road, including the part beyond the point at which the F. D. Co. stopped. Heli, that it was not the intention of the legislature, by the act of 1877, to forfeit the lands conveyed by the deeds of the governor, or to declare such deeds void, and that the complainant corporation acquired no rights in the lands conveyed by such deeds to enable it to question the title of those who held under them.

Appeals from the Circuit Court of the United States for the District of Minnesota.

This was a bill which was filed by the St. Paul & Northern Pacific Railroad Company, hereafter termed the plaintiff company, against the St. Paul, Minneapolis & Manitoba Railway Company et al., to establish its title to a large body of land in the state of Minnesota, and to annul certain deeds which were executed by the governor of that state in the years 1866 and 1871, on the ground that they operated as a cloud on the plaintiff company's title. The plaintiff also prayed that the defendant company might be required to account for and to pay over to it all such sums as it had realized from sales made of any of the lands embraced in the aforesaid deeds. The lands in controversy are a part of the lands granted by the United States, on March 3, 1857, to the then territory of Minnesota, to aid in the construction of a main line of railroad from Stillwater, on the eastern boundary of the territory, via St. Paul and St. Anthony, to a point on the western boundary of the territory between the foot of Big Stone lake and the mouth of the Sioux Wood river, afterwards fixed at Breckenridge, with a branch from St. Anthony, via Anoka, St. Cloud, and Crow Wing, to St. Vincent, in the northwestern portion of the territory.

A general statement of the facts out of which the controversy arises is as follows: Both parties derive title to the lands in dispute under the aforesaid grant of March 3, 1857 (11 Stat. 195, c. 99). That act granted to the territory of Minnesota, in aid of building the aforesaid main and branch lines of railroad, “every alternate section of land, designated by odd numbers, for six sections in width on each side of each of said roads and branches,” with the right to select land, in alternate sections or parts of sections, lying within 15 miles of said main and branch lines, to make up for any deficiency in the grant caused by sales of land or by the filing of pre-emption claims before the definite location of the road. The act further provided “that the lands hereby granted for and on account of said roads and branches, severally, shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses; * * * that the said lands hereby granted to the said territory or future state shall be subject to the future disposal of the legislature thereof for the purposes herein expressed and no other;" and that they should be disposed of "by said territory or future state only in the manner following, that is to say: that a quantity of land not exceeding one hundred and twenty sections for each of said roads and branches, and included within a continuous length of twenty miles of each of said roads and branches, may be sold; and when the governor of said territory or future state shall certify to the secretary of the interior that any twenty continuous miles of any of said roads or branches is completed, then another quantity of land hereby granted, not to exceed one hundred and twenty sections for each of said roads and branches having twenty continuous miles completed as aforesaid, and included within a continuous length of twenty miles of each of such roads or branches, may be sold; and so from time to time until said roads and branches are completed. *

By an act of congress approved March 3, 1865 (13 Stat. 526, c. 105), the aforesaid grant was increased to 10 sections per mile, and the indemnity limits were extended to 20 miles from said lines of road. As to the mode of disposing of the land, the act of March 3, 1865, provided as follows: “When the governor of said state shall certify to the secretary of the interior that any section of ten consecutive miles of said road is completed in a good, substantial, and workmanlike manner, as a first-class railroad, and the said secretary shall be satisfied that said state has complied in good faith with this requirement, the said secretary of the interior shall issue to the said state patents for all the lands granted and selected as afore said, not exceeding ten sections per mile, situated opposite to and within a limit of twenty miles of the line of said section of road thus completed, extending along the whole length of said completed section of ten miles of road, and no further. And when the governor of said state shall certify to the secretary of the interior, and the secretary shall be satisfied that another section of said road, ten consecutive miles in extent, connecting with the preceding section or with some other first-class railroad, which may be at the time in successful operation, is completed as aforesaid, the said secretary of the interior shall issue to the said state patents for all the lands granted and situated opposite to and within the limit of twenty miles of the line of said completed section of road or roads, and extending the length of said section, and no further, not exceeding ten sections of land per mile for all that part of said road thus completed under the provisions of this act and the act to which this is an amendment, and so, from time to time, until said roads and branches are completed. And when the governor of said state shall so certify, and the secretary of the interior shall be satisfied that the whole of any one of said roads and branches is completed in a good, substantial, and workmanlike manner, as a first-class railroad, the said secretary of the interior shall issue to the said state patents to all the remaining lands granted for and on account of said completed road and branches in this act, situated within the said limits of twenty miles from the line thereof, throughout the entire length of said road and branches. * *" An act of congress approved July 13, 1866 (14 Stat. 97, c. 183), relative to the aforesaid grant, provided "that all the lands heretofore granted to the territory and state of Minnesota to aid in the construction of railroads, shall be certified to said state by the secretary of the interior, from time to time, whenever any of said roads shall be definitely located, and shall be disposed of by said state in the manner and upon the conditions provided in the particular act granting the same, as modified by the provisions of this act; * * * that the lands granted by any act of congress to the state of Minnesota, to aid in the construction of railroads in said state, specifically, lying in place, on any division of ten miles of road, shall not be disposed of until the road shall be completed through and coterminous with the same; provided, however, that this provision shall not extend to any lands authorized to be taken to make up deficiencies."

Turning to state legislation with reference to the aforesaid grant, and to other acts done which affect the questions at issue, the following may be mentioned as the most material: The grant made by the act of March 3, 1857, supra, was conferred by the territorial legislature on the Minnesota & Pacific Railroad Company, which had been incorporated to construct the main and branch lines of railroad aforesaid, but, that company having failed to discharge its obligations, the grant became revested in the state of Minnesota on June 23, 1860, by proper proceedings taken that are not challenged. The state thereafter, on March 10, 1862, incorporated the St. Paul & Pacific Railroad Company to construct said uncompleted lines of road, and, for the purpose of aiding it in so doing, conferred upon it “all the interest of the state,

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