♦This was a controversy over about 800 acres of land lying in the bed of what is known as Owl lake, in Humboldt county, Iowra. The original plaintiffs, the appel¬ lees in this case, claimed under the act of Congress of September 28, 1850, commonly known as the swamp land grant. Defend¬ ants’ position was that the lands were un¬ surveyed lands belonging to the national government, subject to entry under the homestead and pre-emption laws, under which they had made entry. The state of Iowa intervened and claimed to own the land in virtue of its right of sovereignty over the beds of all lakes meandered by the general government.
The suit was originally instituted by a petition in equity filed in the district court of Humboldt county by Edwin O. Rood and others against George A. Wallace and oth¬ ers, founded upon allegations: (1) That the lands w’ere conveyed to the state under the swamp land act of September 28, 1850, and thence by intermediate conveyances to the plaintiff; (2) that at the date of this act the lands were in fact swamp and over¬ flowed lands, and continued to be, until I’earsons, plaintiffs’ grantor, received the title, marshy and unfit for cultivation with¬ out artificial drainage. That in 1884 Pear¬ sons began to reclaim the land by ditches, building fences around it, and for several years used and occupied it for pasturage, and spent a large amount of money in drain¬ ing, reclaiming it, and making it fit for cul¬ tivation; (3) that defendants have taken possession, and built a cabin upon the land, and are interfering with the plaintiffs in their use and enjoyment of it.
Wherefore an injunction was prayed.
A demurrer to this bill was overruled and an answer filed in general denial of the pe¬ tition.
187 U, S.
Thereupon the state of Iowa filed a peti¬ tion of intervention, alleging that the land in question was a part of the bed of Owl lake, and did not constitute any part of the land which the United States government was authorized or empowered to sell. *That[891 the state was duly admitted into tbe Union in 1846, and, as a sovereign state, became the owner of all the lakes within its bor¬ ders, subject to the right of the public to use the same, and that the title to the soil was in the state. That in surveying the public lands adjoining the lake the same was meandered, and the land up to the me¬ ander lines sold by the United States to dif¬ ferent persons, and after such survey and sale the United States had no right, title, or interest in any part of the lake bed, and that the same had passed to the state upon its admission to the Union.
The petition denied that the land de¬ scribed was within the swamp land grant, and averred that the act of the plaintiffs and their vendors in draining the said lake and drawing off the water was unlawful.
Wherefore the state prayed a decree against both plaintiffs and defendants, quieting its title to the land, and for a writ of possession removing both parties there from.
Defendants Wallace and others subse¬ quently amended their answer to the effect that the lands were unsurveyed lands, sub¬ ject to entry by settlers, and that defend¬ ants had entered the lands as homesteads, built houses thereon, and occupied the same as homes. That, at the date of the swamp land act, the lands were covered by water from 6 to 15 feet in depth, with well-defined shores and high banks upon the south and east sides, and navigable by ordinary steam¬ boats. That the lands were never swampy, and never came within the meaning of the grant as swamp and overflowed lands. And that whatever rights plaintiffs might have in the land were junior and infei ior to those of defendants.
Plaintiffs thereupon amended their peti¬ tion by averring that since the commence¬ ment of the suit the lands had been patented to the state under the swamp land act of 1850; and answered the petition of the in¬ terveners, alleging that by the proper officer of the government the character, quality, and condition of said lands were duly adju¬ dicated in the manner provided by law, and that the title of the United States passed through certain patents mentioned in amendments to plaintiffs’ petition, and fi¬ nally inured to the benefit of the plaintiffs,
♦and that said patents have never been set[QO] aside nor canceled.
Testimony was taken by the plaintiffs, and a decree entered dismissing the inter¬ veners’ petition, and quieting the title in this and several other cases involving the same facts, in the plaintiffs. On an appeal taken to the supreme court of Iowa, the judgment of the district court was con¬ firmed. Whereupon the state sued out a writ of error from this court.
87
Supreme Court of the United States.
Oot. Term,
Ur. Charles W. Mnllan argued the cause and filed a brief for plaintiff in error:
Under the deed of cession from Virginia, so far as Virginia had any claim to the ter¬ ritory now embraced within the boundaries of the state of Iowa, and under the treaty of 1803 between the United States and France, and under the act of Congress of 1846 admitting Iowa into the Union, that state when it became one of the states of the Union became possessed of every right, advantage, and immunity which had there¬ tofore teen possessed by the original thir¬ teen states.
Pollard v. Hagan, 3 How. 212, 11 L. ed.
565.
When the Revolution took place, the peo¬ ple of each state became themselves sov¬ ereign, and in that character hold the ab¬ solute right to all their navigable waters and the soils under them, for their own com¬ mon use, subject only to the rights since surrendered by the Constitution to the gen¬ eral government.
Martin v. Waddell, 16 Pet. 410, 10 L. ed. 1012; Withers v. Buckley, 20 How. 92, 15 L. ed. 819; McCready v. Virginia, 94 U. S. 394, 24 L. ed. 248 ; Neurport d G. Bridge Go. v. United States, 105 U. S. 491, 26 L. ed. 1150; Pennsylvania v. Wheeling d B. Bridge Co. 13 How. 518, 14 L. ed. 249; Shiv¬ ely v. Bowlby, 152 U. S. 31, 38 L. ed. 343, 14 Sup. Ct. Rep. 548 ; Mann v. Tacoma Land Co. 153 U. S. 273, 38 L. ed. 714, 14 Sup. Ct. Rep. 820; Mumford v. War dwell, 6 Wall. 436, 18 L. ed. 761; Knight v. United States Land Asso. 142 U. S. 161, 35 L. ed. 974, 12 Sup. Ct. Rep. 258.
There was drawn in question in this cause a claim to a right and title under the Con¬ stitution and statutes of the United States, and under an authority exercised by the United States, the decision whereof by the state court is against the right and title claimed by the state of Iowa.
The Banks v. Hew York, 7 Wall. 16, sub nom. N ew York ex rel. Bank of N. Y. Nat. Bkg. Asso. v. Connelly, 19 L. ed. 57; Trebil- cock v. Wilson, 12 Wall. 687, 20 L. ed. 460; Lytle v. Arkansas, 22 How. 193, 16 L. ed. 306; Dooley v. Smith, 13 Wall. 604, 20 L. ed. 547 ; Pennywit v. Eaton, 15 Wall. 380, sub nom. Scott v. Eaton, 21 L. ed. 72; Mur¬ dock v. Memphis, 20 Wall. 590, 22 L. ed.
429.
Mr. Robert M. Wright argued the cause and filed a brief for defendants in error :
The question of ownership of the beds of non-navigable, meandered lakes is a ques¬ tion for the determination of the states wherein the said lakes are situated. It is a question of state law, and is to be deter¬ mined solely by such law.
Eldridge v. Trezevant, 160 U. S. 452, 40 L. ed. 490, 16 Sup. Ct. Rep. 345; St. An¬ thony Falls Water Power Co. v. St. Paul Water Coinrs. 168 U. S. 349, 42 L. ed. 497, 18 Sup. Ct. Rep. 157 ; Jersey City d B. R. Co. v. Morgan, 160 U. S. 288, 40 L. ed. 430, 78 Sup. Ct. Rep. 276; Bartlett v. Lockwood, 88
160 U. S. 357, 40 L. ed. 455, 16 Sup. Ct. Rep. 334; Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838; Kqukauna Water Power Co. v. Creen Bay d M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 193; Shively v. Bowlby, 152 U. S. 1, 38 L. ed. 331, 14 Sup. Ct. Rep. 548; Lowndes v. Huntington, 153 U. S. 1, 38 L. ed. 615, 14 Sup. Ct. Rep. 758.
The right of the state of Iowa to these lake beds is not claimed under the Consti¬ tution of the United States, nor under any treaty or statute of, or commission held or authority exercised under, the United States, but its right is claimed to be a part and parcel of the state’s inherent sov¬ ereignty, and, as such, is an independent right.
Shively v. Bowlby, 152 U. S. 16, 38 L. ed. 337, 14 Sup. Ct. Rep. 548.
The new states since admitted into the Union have the same rights, sovereignty, and jurisdiction in that behalf as the orig¬ inal states possess within their respective borders.
Shively v. Bowlby, 152 U. S. 30, 38 L. ed. 342, 14 Sup. Ct. Rep. 548.
The decision of the supreme court of Iowa was not against, but in favor of, the author¬ ity exercised under the United States. This being so, this court has no jurisdiction to review it.
Jersey City d B. R. Go. v. Morgan, 160 U. S. 288, 40 L. ed. 430, 16 Sup. Ct. Rep. 276; Bartlett v. Lockwood, 160 U. S. 357, 40 L. ed. 455, 16 Sup. Ct. Rep. 334; Whit¬ ten v. Tomlinson, 160 U. S. 231, 40 L. ed. 406, 16 Sup. Ct. Rep. 297 ; Missouri v. An- driano,
138 U. S. 496, 34 L. ed. 1012, 11 Sup. Ct. Rep. 385 ; Commonwealth Bank v. Griffith, 14 Pet. 56, 10 L. ed. 352; Fulton ▼. M'Affee, 16 Pet. 149, 10 L. ed. 918; Linton v. Stanton, 12 How. 423, 13 L. ed. 1050; Reddall v. Bryan, 24 How. 420, 16 L. ed. 740; Ryan v. Thomas, 4 Wall. 603, 18 L. ed.
460.
The Federal question must have been de¬ cided against the authority exercised under the United States. The question may have teen erroneously decided; it may be quite apparent that a wrong decision has teen rendered; but, unless the decision is against the authority exercised, the court cannot en¬ tertain jurisdiction.
Murdock v. Memphis, 20 Wall. 590, 22 I*, ed. 429.
This court is not required to re-examine the judgment of the state court simply be¬ cause a Federal question may have been de¬ cided. To give this court jurisdiction, it must appear that such a question was neces¬ sarily involved in the decision.
Moore v. Mississippi, 21 Wall. 636, 22 L. ed. 653.
If the record shows upon its face that a Federal question was not necessarily in¬ volved, this court will not go outside of it, to the opinion of the court below, or else¬ where, to ascertain whether one was in fact decided.
Ibid.
In order to give this court jurisdiction of
187 TJ. S.
W02.
<0-92
1 3VA v. Hcoa,
a writ of error to a state court, it must ap¬ pear affirmatively, not only that a Federal question was presented for decision to the highest court of the state having jurisdic¬ tion, but that the decision of the Federal question was necessary to the determination of the case, and that it was actually decided, or that the judgment, as rendered, could not have been given without deciding it.
De Saussure v. Gaillard, 127 U. S. 216, 32 L. ed. 125, 8 Sup. Ct. Rep. 1053; Johnson v. Risk, 137 U. S. 300, 34 L. ed. 683, 11 Sup. Ct. Rep. Ill; New Orleans v. New Orleans Waterworks Co. i42 U. S. 79, 35 L. ed. 943, 12 Sup. Ct. Rep. 142.
The courts of the United States will adopt and follow the decisions of the highest court of the state, whether founded on statutes or not, when tne same have become rules of property within the state.
Lowndes v. Huntington, 153 U. S. 19, 38 L. ed. 619, 14 Sup. Ct. Rep. 758; Kaukauna Water Power Co. v. Green Bay d M. Canal Co. 142 U. S. 271, 35 L. ed. 1010, 12 Sup. Ct. Rep. 173; Bucher v. Cheshire R. Co. 125 U. S. 555, 31 L. ed. 795, 8 Sup. Ct. Rep. B74; Gormley v. Clark, 134 U. S. 348, 33 L. ed. 913, 10 Sup. Ct. Rep. 554.
The decision of the state court, to be re- viewable in this court must have been against the right, title, privilege, or immu¬ nity claimed to depend upon the treaty, stat¬ ute, or authority exercised.
Baltimore d P. R. Co. v. Hopkins, 130 U.
8. 223, 32 L. ed. 913, 9 Sup. Ct. Rep. 503;
United States v. Lynch, 137 U. S. 285, 34 L. ed. 702, 11 Sup. Ct. Rep. 114; Cook County v. Calumet d C. Canal d Dock Co. 138 U. S. 653, 34 L. ed. 1116, 11 Sup. Ct. Rep. 435.
The decision of the state court was not against the validity of the authority exer¬ cised under the United States.
Millingar v. Hartupee, 6 Wall. 258, 18 L. ed. 829.
The decision was not against any title, right, privilege, or immunity specially set up or claimed by plaintiff in error under the Constitution or any treaty or statute of, or commission held or authority exercised under, the United States.
Pollard v. Hagan, 3 How. 212, 11 L. ed.
665.
Mr. John P. Dolliver also argued the cause for defendants in error.
Mr. Justice Brown delivered the opin¬ ion of the court:
Motion is made to dismiss thiB case upon the ground that no Federal question is in¬ volved; or if there be such question, that there was another nonfederal question, the decision of which was sufficient to sustain the judgment, irrespective of what the deci¬ sion of the supreme court may have been upon such Federal question.
1. From the foregoing abstract of the
pleadings it will be seen that the title set up by the state rests solely upon the propo¬ sition that it became vested, upon its admis¬ sion into the Union under the act of Con- 187 U. 8.
gress of December 28, 1848 (f 9^ at L.
117, chap. 1), with sovereignty over the beds of all lakes within its borders by the act of the general government in meander¬ ing such lakes, and excluding from its sur¬ vey of public lands all such as lay beneath their waters. This clearly does n< t involve the validity of any treaty or statute of the United States, or the constitutionality of any state statute or authority, so that, if jurisdiction exists in this court it must be by reason of the claim of a title, right, priv¬ ilege, or immunity under the Constitution, or an authority exercised und it the United States, the 'decision of which was against [81 ] such title, right, privilege, or authority.
The real question, then, is whether the sovereignty of the state ova.’ the beds of its inland lakes rests upon some statute or pro¬ vision of the Constitution, or upon general principles of the common law which long antedated the Constitution, and had their origin in rights conceded, to the Crown cen¬ turies before the severance of our relations with the mother country. If the latter, then the state must lock to the decisions of this court, recognizing and defining such rights and determining how far they are in¬ herited, first, by the United States as the successor of the Crown, and, second, by the several states upon their admission into the Union. This would not involve a construc¬ tion of the Constitution, nor of any title de¬ rived thereunder, but a determination of the title of the Crown to lands beneath the beds of inland lakes, and of the respective rights of the states and the general government as successors thereto.
In support of our jurisdiction the state relies ( 1 ) upon article 3 of the treaty with France for the cession of Louisiana (8 Stat. at L. 200), which merely provides that “the inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible, ac¬ cording to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citi¬ zens of the United States;” (2) the provi¬ sion of the Constitution, art. 4, § 3, which merely declares, with certain immaterial qualifications, that “new states may be ad¬ mitted by the Congress into this Union;” and (3) upon the act of Congress of 1846, admitting the state of Iowa into the Union, with the provision that it should be admit¬ ted on an equal footing with the original states in all respects whatsoever.
None of these provisions was questioned by the supreme court of Iowa in its opinion, but neither of them has even a remote bear¬ ing upon the question of the title of the state to the land beneath its lakes. Indeed, the argument now made by the attorney general, that the title of the state depends upon the construction given to this act of Congress, is quite inconsistent with his first assignment of error upon the merits, 'which [98] charges the court with error “in not hold¬ ing that the beds of all the meandered lakes and streams in the state of Iowa belong to said state in trust for the public by virtue
W>94
Supreme Court or the United States.
Oot. Term,
of its sovereignty, and that this right does Hot depend upon any act of Congress or any grant from, the United States.” In other words, the state is put in the dilemma of insisting, for the purpose of sustaining the jurisdiction of this court, that the title of the state is dependent upon the proper con¬ struction of these three instruments, and, for the purpose of sustaining its case upon the merits, denying that the title depends upon either of them. This is an attempt to blow hot and cold upon the same question.
The mere fact that the plaintiff in error asserts title under a clause of the Consti¬ tution or an act of Congress is not in itself sufficient, unless there be at least a plau¬ sible foundation for such claim. A party may assert a right, title, privilege, or im¬ munity without even color for such asser¬ tion, and if that were alone sufficient to give this court jurisdiction, a vast number of cases might be brought here simply for de¬ lay or speculative advantage. New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, 46 L. ed. 936, 22 Sup. Ct. Rep. 691.
It is equally clear that the mere fact that an act of Congress or a patent of the United States appears in a chain of title does not constitute such a right, title, or immunity as gives the Federal court jurisdiction, un¬ less such title involves the construction of the act, or the determination of the rights •f the party under it. De Lamar’s Nevada Gold Min. Go. v. Nesbitt, 177 U. S. 523, 44 L. ed. 872, 20 Sup. Ct. Rep. 715.
The case of New Orleans v. De Armas, 9 Pet. 224, 9 L. ed. 109, is directly in point. Plaintiffs claimed a parcel of land in the eity of New Orleans by incomplete title from the Spanish government, which was, however, confirmed under the laws of the United States, and a patent issued there¬ for. The city claimed the land as a part of a quay dedicated to the city in the original plan of the town, and therefore not grant- able by the King. The state court gave judgment for the plaintiffs, which was af¬ firmed by the supreme court, and the city Bued out a writ of error. The court held, through Chief Justice Marshall, that to sus- [•3]tain ‘its jurisdiction it must be shown that the title set up by the city wa3 protected by the treaty ceding Louisiana to the United States (the treaty involved in this case), or by some act of Congress applicable to that title. It was held that the 3d article of the treaty, above quoted, did not embrace the case, and that the act of Congress ad¬ mitting Louisiana into the Union, which is identical in language with the act admit¬ ting Iowa, could not be construed to give ap¬ pellate jurisdiction to this court over all questions of title between citizens of Louis¬ iana; that the case involved no principle upon which this court could take jurisdic¬ tion, which would not apply to all the con¬ troversies respecting titles originating be¬ fore the cession of Louisiana to the United States, and that “it would also comprehend all controversies concerning titles in any of the new states, Bince they are admitted into 00
the Union by laws expressed in similar lan¬ guage.” The writ of error was dismissed.
This ease is conclusive against the existence of a Federal question in the case under con¬ sideration.
2. We are also asked to sustain the juris¬
diction of this court upon the ground that the action of the government surveyors in segregating and setting apart the lake in question by meander lines from the public land, and the approval of such survey by the Commissioner of the General Land Of¬ fice, was an adjudication by the government of the United States, by its duly authorized officers and agents, that the lake so segre¬ gated and set apart was the property of the state of Iowa, and not a part of the public domain.
We do not so interpret the action of these officers. They undoubtedly did survey the lands adjoining this lake and meander the lake itself, but they determined nothing as to the title of the land beneath its waters, — a determination which would have been wholly beyond their powers; but simply omitted those lands from the survey, and left their title to be subsequently deter¬ mined either by state or congressional action.
It was obviously beyond the powers of a gov¬ ernment surveyor, or of the Land Office, to determine the title to these lands, or to ad¬ judicate anything whatever upon the subject.
Had the decision of the supreme court been adverse to the ‘plaintiffs, who claimed