The bill alleged the incorporation of, tions which are quite familiar, and conthe company and that of various corpo- tains the provisions set out in the bill, rations impleaded with it, and the fol- which subjects the land unsold within lowing facts: March 3, 1871, Congress three years after the completion of the made a grant to the Texas Pacific Rail-road to settlement and pre-emption at road Company of certain sections of the a price not exceeding an average of $2.50 public lands and provided that the lands an acre. which should not be sold or otherwise disposed of within three years after the completion of the entire road should be subject to settlement and pre-emption like other lands, at a price to be fixed by and paid to the company at not exceeding an average of $2.50 per acre for all of the lands granted.

By § 23 the Southern Pacific Railroad Company of California was authorized to construct a line of railroad from a point at or near Tehachapi Pass, by way of Los Angeles, to the Texas Pacific Railroad at or near the Colorado river, "with the same rights, grants, and privileges, and subject to the same limitations, restrictions, and conditions, as were granted" to the Southern Pacific Railroad Company by the Act of July

Section 23 of the act made a further grant of certain sections of the public lands in the state of California to the Southern Pacific Railroad, and con-27, 1866, with reservations of rights to tained the provision that the company other railroad companies. should construct a line of railroad from and to certain named points, "with the same rights, grants, and privileges, and subject to the same limitations, restrictions, and conditions, as were granted to said Southern Pacific Railroad Company by the Act of July 27, 1866 [14 Stat. at L. 292, chap. 278]."

The road was completed between the designated points more than ten years prior to the 1st of December, 1913.

Among the lands which have not been sold or disposed of that are within the limits of the grant are those described in the bill, and on October 29, 1913, complainant (appellant) tendered the company $800 and demanded of it and the other defendants (appellees) a conveyance of the land, which demand was refused, to the injury and damage of complainant. The land is of the value of $3,000, and complainant has the qualifications entitling him to purchase the land.

Based on this provision complainant puts three questions as involved in the case, but says it is only necessary for this court to answer the following one: "Was this grant of lands to the Southern Pacific Railroad Company under the Act of March 3, 1871, made subject to the rights, grants, and privileges of said act, or under the rights, grants, and privileges of the Act of July 27, 1866, and subject only to its terms?" Complainant's answer to the question is that the grant to the Southern Pacific was [412] made under the Act of 1871, and not under the Act of 1866, and deduces from that that the provision in § 9, requiring under certain circumstances a sale of pre-emptors, is applicable to the Southern Pacific.

Complainant's argument in support of the answer does not submit easily to succinct statement. Its postulate is that the policy of Congress in regard to the public lands came to have its chief solicitude Complainant offers to pay the $800 in in the disposition of them to actual court, and alleges [411] that the suit settlers at reasonable prices, and that was brought, among other things, for the this policy was not overlooked even in purpose of having the court interpret and the grants to railroads. And the policy construe the acts of Congress referred to. dictated, it is said, the provision of § 9 The other defendants are alleged to have of the grants to the Texas Pacific Railan interest in the land, and a construc-road Company, and determines the intion of the acts of Congress is prayed and of all other acts that have any relation to them; that defendants be decreed to convey to complainant the land; and that he have general relief.

Sections 9 and 23 of the Act of March 3, 1871, are directly involved; the other sections of the act and other acts only as illustrating §§ 9 and 23.

By 9 a land grant is made to the Texas Pacific Railroad of public land in California in the terms and qualifica

sertion of a like provision in § 23, which concerns the grant to the Southern Pacific Company, though it is not inserted

therein.

We may grant, if a policy exists, that it may be used to resolve be a substitute for a law. However, we the uncertainty of a law, but it cannot do not find the uncertainty in §§ 9 or 23 that complainant does, whether jointly or separately considered. Section 23 is complete in itself. The restrictions upon the grant it made that were deemed appropriate were expressed, and their

expression excludes any other by a wellknown rule of construction.

ing said boundary disputes within the jurisdiction of certain special authorities of which this court must take judicial notice of each of said republics of jurisdiction," must necessarily have deprived the courts since, even if an attenuated Federal question can be discovered, it is no more than formal, a commission having sat under the last of the treaties, and its action having been rejected by the United States government as abortive.

[For other cases, see Appeal and Error, 938989, in Digest Sup. Ct. 1908.]

[No. 104.]

uary 13, 1919.

Let us repeat: the Southern Pacific Company is authorized to construct a line of railroad in California with the same rights, grants, privileges, and subject to the same limitations, restrictions, and conditions, as were granted to the company by the Act of July 27, 1866. And there could not have been oversight, nor the inadvertence of expressing one thing when another was meant. Yet this is practically the contention of complainant. Not the conditions of the Act of 1866 are imposed on the grant, Submitted December 18, 1918. Decided Janbut the conditions imposed by § 9,conditions upon a different grant and a different company, is the contention, though complainant admits that "there is no question but that the language of § 23, segregated from [413] the act of which it is a part, and construed alone, supports the contention of the appellees." The language gains, we think, not loses in strength from its location. It makes evident that there was a conscious contrast of provision between the grants and the companies. Decree affirmed.

Error to district court
tion
statute.

construction

Federal quesor validity of

IN ERROR to the District Court of the trict of Texas to review a judgment in favor of plaintiff in an action of trespass to try title. Dismissed for want of jurisdiction.

United States for the Western Dis

The facts are stated in the opinion.

Mr. Frank G. Morris submitted the cause for plaintiff in error:

This court has jurisdiction of this writ of error on the grounds that the jurisdiction of the trial court is a question presented for decision, and further because there is involved in the decision below, a question arising under treaties of the United States, involving their construction and application.

L. ed. 1383, 34 Sup. Ct. Rep. 794; Me-
Johnson v. Geralds, 234 U. S. 422, 58
Govern v. Philadelphia & R. R. Co. 235
U. S. 389, 59 L. ed. 283, 35 Sup. Ct. Rep.
127, 8 N. C. C. A. 67.

A dispute between nations as to an international boundary line, which has been submitted to arbitration, is not jusNo question as to the validity or con- ticiable in the courts of either country struction of a treaty of the substantial pending the arbitration, and when the character essential to support a direct writ title of litigants cannot be adjudicated of error from the Federal Supreme Court without judicially determining the interis involved in the decision of a district national boundary, which neither govcourt which, upon the ground that the ernment has undertaken to decide for United States government is in fact asserting its authority over the land in dispute, itself, the issue is not justiciable in the upholds its jurisdiction of an action of tres- courts of either country; and this is pass to try title to land on the Mexican especially true where, as in this case, side of the Rio Grande when that river was the nations concerned have expressly established as the international boundary, committed these boundary questions to but now on the Texas side, over defendant's the exclusive jurisdiction of a boundary objection that the United States govern- commission or to their direct adjustment ment recognized that the boundary line was disputed by Mexico, and that "the treaties through diplomatic channels in cases of and acts of the respective governments plac- disagreement between the commission

Note.-On direct review in Federal Supreme Court of judgments of district or circuit courts-see notes to Gwin v. United States, 46 L. ed. U. S. 741, and B. Altman & Co. v. United States, 56 L. ed. U. S. 894.

ers.

Foster v. Neilson, 2 Pet. 253, 7 L. ed. 415.

It is for this court to decide, when private rights are involved, whether an arbitration award is self-executing and valid in the absence of any authoritative 248 U. S.

denial by this government of the validity | treaty are involved or are drawn in of such award.

Ibid.

question, do not create a case under cl. 4, § 238 of the Judicial Code.

Budzisz v. Illinois Steel Co. 170 U. S. 41, 42 L. ed. 941, 18 Sup. Ct. Rep. 503. It is the political departments of the government that must determine the line of the boundary between nations; and the assertion by the political departments of the United States of jurisdiction over the territory including the dis

When the plea, though denominated a plea to the jurisdiction, raises a Federal question which really requires an examination into the facts on the merits in order to determine whether the question raised will arise in the case, the plea is substantially one on the merits, and raises a Federal question on the merits, and the order of the court, in such a case,puted land binds the hands of the courts, sustaining a demurrer or exception to the plea, is substantially a ruling on the merits.

Scully v. Bird, 209 U. S. 481, 52 L. ed. 899, 28 Sup. Ct. Rep. 597; Illinois C. R. Co. v. Adams, 180 U. S. 28, 45 L. ed. 410, 21 Sup. Ct. Rep. 251.

Messrs. Walter B. Grant and T. J. Beall submitted the cause for defendant

in error:

The case was brought in the United States court solely on the question of diversity of citizenship. Whether the Federal court had jurisdiction on grounds other than diversity of citizenship must be determined from complainant's own statement as set forth in the pleading affirmatively and distinctly, regardless of questions subsequently arising; grounds of jurisdiction may not be inferred argumentatively.

Lovell v. Newman, 227 U. S. 412, 57 L. ed. 577, 33 Sup. Ct. Rep. 375; Shultis v. McDougal, 225 U. S. 561, 569, 56 L. ed. 1205, 32 Sup. Ct. Rep. 704; Omaha Electric Light & P. Co. v. Omaha, 230 U. S. 123, 124, 57 L. ed. 1419, 1421, 33 Sup. Ct. Rep. 974; Filhiol v. Torney, 194 U. S. 357, 48 L. ed. 1016, 24 Sup. Ct. Rep. 698; Devine v. Los Angeles, 202 U. S. 313, 332, 50 L. ed. 1046, 1053, 26 Sup. Ct. Rep. 652.

The allegations of the defendant in general terms, without the showing of material and substantial jurisdictional facts, are not sufficient to raise a question for the decision of this court.

and leaves no question under the Constitution, or arising under treaties, open for the decision of the trial court or for the decision of this court.

United States v. Arredondo, 6 Pet. 691, 711, 8 L. ed. 547, 554; Foster v. Neilson, 2 Pet. 253, 7 L. ed. 415; Jones v. United States, 137 U. S. 202, 212, 34 L. ed. 691, 695, 11 Sup. Ct. Rep. 80; United States v. Texas, 143 U. S. 621, 628, 36 L. ed. 285, 12 Sup. Ct. Rep. 488; La Roche v. Jones, 9 How. 155, 13 L. ed. 85; LattiLuther v. Borden, 7 How. 56, 12 L. ed. mer v. Poteet, 14 Pet. 16, 10 L. ed. 334; 604; Harrold v. Arrington, 64 Tex. 238; Pearcy v. Stranahan, 205 U. S. 257, 51 L. ed. 793, 27 Sup. Ct. Rep. 545.

Mr. Justice Holmes delivered the opinion of the court:

This is an action of trespass to try title to land in Texas lying between the present and former bed of the Rio fendant in error) alleged that his testaGrande. The plaintiff (the present detor and those under whom the latter claimed had held the land under color of title from the state of Texas for the several statutory periods of limitation, entered when the plaintiff had the legal and that the defendant unlawfully title in possession as devisee. The juris

diction of the district court was based

upon diversity of citizenship. The defendant pleaded that the plaintiff's title within the United States, and that that depended upon whether the land was depended upon whether the Rio Grande, Spencer v. Duplan Silk Co. 191 U. S. 526, 48 L. ed. 287, 24 Sup. Ct. Rep. 174; changed its channel in such a way as to established as the boundary in 1852, had Brown v. Keene, 8 Pet. 112, 8 L. ed. 885; continue to be the boundary or not,Muse v. Arlington Hotel Co. 168 U. S. the land in question having been upon 430, 42 L. ed. 531, 18 Sup. Ct. Rep. 109; the Mexican side of the river in 1852, Ex parte Smith, 94 U. S. 455, 24 L. ed. and now being on the side of the United 165; Colorado Cent. Consol. Min. Co. v. States. The defendant [418] went on to Turck, 150 U. S. 138, 37 L. ed. 1030, 14 allege that while the United States now Sup. Ct. Rep. 35; Press Pub. Co. v. Mon-exercises a de facto jurisdiction over the roe, 164 U. S. 105, 41 L. ed. 367, 17 Sup. territory where the land lies, it does so Ct. Rep. 40. with the admission by treaty and diploMere allegations not based upon thematic correspondence that the boundary facts presented, showing wherein the is unsettled, and that "the treaties and construction and the validity of the acts of the respective governments plac

stop occupation by squatters who were taking advantage of the government's forbearance. Keblinger was appointed to determine what persons showed a prima facie title. He decided against the defendant, and, with the sanction of the government, informed the plaintiff that the government would not object if he should proceed.

The district court sustained the de

ing said boundary disputes within the | exclude from it persons who had no jurisdiction of certain special authori- prima facie Mexican titles, in order to ties, of which this court must take judicial notice, must necessarily have deprived the courts of each of said republics of jurisdiction," etc. On this ground it was prayed that the court either dismiss the case or stay the trial until the boundary should be established. Subject to this the defendant pleaded not guilty and the ten years' Statute of Limitation of Texas. The plaintiff demurred to the plea to the jurisdiction as show-murrer to the plea to the jurisdiction, ing on its face that the United States and the only color of right to bring the and Texas were exercising de facto juris- case to this court by direct appeal condiction over the land; set up that it was sists in a suggestion that the construcagreed between the United States and tion of a treaty is involved. Mexico that Mr. Wilbur Keblinger The decision of a court that it has should decide what lands in the dis- jurisdiction on the ground taken by the puted territory were proper subjects of demurrer simply means that the court litigation in the courts of the United finds the government in fact asserting States and of Texas, that he had decided its authority over the territory and will this land to be such, and that his finding follow its lead. It does not matter to had been acquiesced in by both govern- such a decision that the government ments. He further alleged that the gov-recognizes that a foreign power is disernment of the United States always had claimed and now claims the land as belonging to the United States, and he denied all the defendant's allegations of fact.

puting its right, and that it is making efforts to settle the dispute. The reference to Keblinger and his finding is important only as showing that there is no present requirement of comity to refrain from exercising the jurisdiction which in any event the courts possess. Jurisdiction is power and matter of fact. [420] The United States has that power and the courts may exercise their portion of it unless prohibited in some constitutional way.

If the passage quoted from the answer is sufficient to open the contention that treaties had contracted for the establishment of a boundary commission with exclusive jurisdiction, and so had prohibited the courts from dealing with the question, neither the validity nor the construction of any treaty was drawn in question; or if an attenuated question can be discovered, it is no more than formal. A commission sat under the last

It was agreed that the patents from the state of Texas under which the plaintiff claimed bounded the grants on the Rio Grande, and that if the additions now in controversy had been made by accretion, they belonged to the plaintiff. It also was admitted and agreed that the court, in deciding upon the demurrer, might notice that the United States, the state of Texas, and the county and city of El Paso were then and for many years before exercising government control and political jurisdiction over the property in question, and that the United States and [419] state had enforced their laws over the whole of the same. It was agreed further that the court might take notice of the correspondence between the Secretary of State, the Mexican Ambassador, of the treaties and its action was and Keblinger, the opinion of the Bound-jected by the government as abortive. ary Commission, and the action of the As the government had withdrawn its United States thereon. It appeared from suggestion of comity so far as the presthe documents that the United States, ent case is concerned, there was no reawhile admitting that the boundary line son why the court should not proceed to was in question between the two coun- trial, and there is no reason why the tries, never had admitted any derogation present writ should not be dismissed, as of its de facto jurisdiction over the it was in Warder v. Loomis, 197 U. S. tract; that it had suggested to the Fed- 619, 49 L. ed. 909, 25 Sup. Ct. Rep. 799, eral courts that, as a matter of comity, and in Warder v. Cotton, 207 U. S. 582, they should not put into execution writs 52 L. ed. 350, 28 Sup. Ct. Rep. 259. It of ejectment, etc., against persons alleg- follows that some other questions argued ing Mexican titles, but that it found it cannot be discussed. necessary to limit this comity so as to

Writ of error dismissed.

re