Statement by Mr. Chief Justice FULLER:
This was an action in ejectment brought by John Turck against the Colorado Central Consolidated Mining Company, December 2, 1885, in the circuit court of the United States for the district of Colorado. The complaint alleged:
That plaintiff owned the property in fee, and was entitled to possession, and that the value of the rents, issues, and profits, 'while said plaintiff has been excluded therefrom by the defendants, amounts to two hundred and fifty thousand dollars.' Wherefore judgment was demanded for possession, damages, and costs. [150 U.S. 138, 140] The defendant answered by a general and special denial, and for a second defense said:
And by the fourth paragraph defendant denied that it wrongfully withheld possession from plaintiff of the Aliunde lode, or any vein having its apex within the side lines thereof.
Plaintiff replied to this second defense, denying the defendant's ownership in the Colorado Central lode to the extent averred; admitting the second paragraph of the answer that the Colorado Central lode was patented before discovery and patent of the Aliunde, and that the two lodes lay adjoining each other; but denying that the Aliunde lode was a part of the Colorado Central lode, and that the vein of the plaintiff had its top or apex within the side lines of the Colorado Central lode, at any point claimed by the plaintiff, and denying that defendant had not wrongfully withheld possession.
The case went to trial, and resulted in a verdict for the plaintiff, and judgment thereon, which was set aside on payment of costs, under the local statute, and a second trial was had with the same result. Certain exceptions were taken by [150 U.S. 138, 141] the defendant to parts of the charge of the court and to the refusal to give certain instructions requested. The case was taken by writ of error to the United States circuit court of appeals for the eighth circuit, and the judgment was affirmed, May 8, 1892. A petition for rehearing was filed during the term, which was denied February 18, 1893, and thereupon a writ of error was allowed to this court.
The opinions of the circuit court of appeals will be found in 4 U. S. App. 290, 2 C. C. A. 67, 50 Fed. Rep. 888, and 4 C. C. A. 313, 54 Fed. Rep. 262.
The case was submitted on motion to dismiss or affirm.
Willard Teller and H. M. Orahood, for the motion.
C. J. Hughes, Simon Sterne, and R. S. Morrison, opposed.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
From Wiscart v. Dauchy, 3 Dall. 321, to American Const. Co. v. Jacksonville, T. & K. W. R. Co., 148 U.S. 372 , 13 Sup. Ct. Rep. 758, it has been held in an uninterrupted series of decisions that this court exercises appellate jurisdiction only in accordance with the acts of congress upon that subject.
By the judiciary act of March 3, 1891, it is provided that the review by appeal, by writ of error, or otherwise, from existing circuit courts shall be had in this court, or in the circuit courts of appeals, thereby established, according to the provisions of the act regulating the same. The writ of error in this case was brought under section 6 of that statute, which provides that 'judgments or decrees of the circuit courts of appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different states,' and also that 'in all cases not hereinbefore, in this section, made final there shall be of right an appeal or writ of error or review of the case by the supreme court of the United States where the matter in controversy shall exceed one thousand dollars besides costs.' 26 Stat. 826, c. 517. [150 U.S. 138, 142] If the judgment of the circuit court of appeals for the eighth circuit was final, under the section in question, then this writ of error must be dismissed; and in order to maintain that the decision of the circuit court of appeals was not final it must appear that the jurisdiction of the circuit court was not dependent entirely upon the opposite parties being citizens of different states.
Under the act of March 3, 1875, (18 Stat. 470, c. 137,) circuit courts of the United States had original cognizance of all suits of a civil nature at common law or in equity; among others, where the matter in dispute exceeded, exclusive of costs, the sum or value of $500, and arising under the constitution or laws of the United States, or in which there was a controversy between citizens of different states.
This complaint was filed December 2, 1885, and alleged the diverse citizenship of the parties as the ground of jurisdiction. But it is said that the vital question raised in the case was whether the patentee of a lode claim, whose discovery and patent were later than the date of another's patent, may follow his junior patented lode, the apex thereof being within his side lines, into the other's patented ground on the dip; and that the solution of this question depended upon the construction and application of section 2322 of the Revised Statutes, concerning the dip and apex of lodes. Hence, that the suit really and substantially involved a controversy only to be determined by reference to the federal statute, and that jurisdiction existed on that ground and did not depend entirely upon the other.
To maintain this proposition it is contended that reference may be made to the entire pleadings, the evidence, or the rulings of the courts below.
This view, however, ignores the settled doctrine that the inquiry, in cases such as this, into the jurisdiction of the circuit court, is limited to the facts appearing on the record in the first instance. This has been often so held in the enforcement of the inflexible rule which requires this court in the exercise of its appellate power to deny the jurisdiction [150 U.S. 138, 143] of courts of the United States in all cases where such jurisdiction does not affirmatively appear in the record on which it is called upon to act.
And we do not think we can do better in elucidation of the rule than quote from the opinion of the court in Metcalf v. Watertown, 128 U.S. 586, 588 , 9 S. Sup. Ct. Rep. 173, where the subject is considered and the authorities cited.
The jurisdiction of the circuit court was invoked December 2, 1885, by the filing of the complaint, from which it appeared that the suit was one of which cognizance could be properly taken on the ground of diverse citizenship, but it did not appear therefrom that jurisdiction was rested, or could be asserted, on any other ground. The federal question now suggested did not emerge until the defendant set up its second defense, and not then unless deducible from the bare averment that it claimed under the senior discovery and patent, which was admitted in the replication.
The proposition that the right given by section 2322 of the Revised Statutes to the holder of the apex to follow his vein on its dip outside of the side lines of his claim is merely a right against an adjoining claimant holding under a junior patent or certificate was afterwards advanced in certain instructions requested by defendant and refused.
The jurisdiction had, however, already attached, and could not be affected by the subsequent developments. It depended entirely upon diverse citizenship when the suit was commenced, and to that point of time the inquiry must necessarily be referred.
If the plaintiff had invoked it on two distinct grounds, one of them being independent of diverse citizenship, a different question might have been presented.
We are of opinion that the judgment of the circuit court of appeals was final under the sixth section, and that the writ of error cannot be maintained.
Writ of error dismissed.