Opinion of the Court.

Section 4 of the act of Congress of June, 1856, is as follows: "SEC. 4. And be it further enacted, That the lands hereby granted to said State shall be disposed of by said State only in manner following, that is to say: That a quantity of land, not exceeding one hundred and twenty sections for each of said roads, and included within a continuous length of twenty miles of each of said roads, may be sold; and when the governor of said State shall certify to the Secretary of the Interior that any twenty continuous miles of any of said roads is completed, then another quantity of land hereby granted, not to exceed one hundred and twenty sections for each of said roads, having twenty continuous miles completed as aforesaid, and included within a continuous length of twenty miles of each of such roads, may be sold; and so, from time to time, until said roads are completed; and if any of said roads is not completed within ten years, no further sale shall be made, and the lands unsold shall revert to the United States."

These lands confessedly were not part of the first one hundred and twenty sections, which the State might sell prior to the construction of any portion of the road, and there is no pretence that at the time of these contracts of Bagley's any certificate had been made by the governor of the State to the Secretary of the Interior, as provided in the act. The Supreme Court, in its first opinion, held that, under the act of 1870 and the reservation in the mortgage, the railroad company had absolutely no power to sell until the making of that certificate; and that any attempted sale made prior thereto was a nullity, not voidable, but absolutely void. Now, whether that was a correct construction or not of the act of 1870 and the reservation of the mortgage, is a purely local question, and involves nothing of a Federal character. The question is not what rights passed to the State under the acts of Congress, but what authority the railroad company had under the statute of the State. The construction of such a statute is a matter for the state court, and its determination thereof is binding on this court. The fact that the state statute and the mortgage refer to certain acts of Congress as prescribing the rule and measure of the rights granted by the

Opinion of the Court.

State, does not make the determination of such rights a Federal question. A State may prescribe the procedure in the Federal courts as the rule of practice in its own tribunals; it may authorize the disposal of its own lands in accordance with the provisions for the sale of the public lands of the United States; and in such cases an examination may be necessary of the acts of Congress, the rules of the Federal courts, and the practices of the Land Department, and yet the questions for decision would not be of a Federal character. The inquiry along Federal lines is only incidental to a determination of the local question of what the State has required and prescribed. The matter decided is one of state rule and practice. The facts by which that state rule and practice are determined may be of a Federal origin.

We see nothing in the cases of St. Louis &c. Railway Co. 7. McGee, 115 U. S. 469, and Doe v. Larmore, 116 U. S. 198, conflicting with these views, or throwing any light on this question. These cases involved simply a consideration of the effect to be given to the later act of Congress, in respect to the rights of the State in the lands, and held that the later act was not to be considered as a new and independent grant, but simply as an extension of time.

Our conclusion, therefore, is that as the construction of the statute of 1870 and following mortgage presented no question of a Federal nature as upon that construction the Supreme Court decided the case-and as such question is sufficiently broad to sustain the judgment, the case must be

Dismissed.

Statement of the Case.

COLORADO CENTRAL CONSOLIDATED MINING COMPANY v. TURCK.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH

CIRCUIT.

No. 935. Submitted October 16, 1893. Decided November 6, 1893.

This court exercises appellate jurisdiction only in accordance with the acts of Congress on that subject.

When the original jurisdiction of a Circuit Court of the United States is invoked upon the sole ground that the determination of the suit depends upon some question of a Federal nature, it must appear, at the outset, from the pleadings, that the suit is one of that character, of which the Circuit Court could properly take cognizance at the time its jurisdiction is invoked.

When the jurisdiction of a Circuit Court is invokeď solely on the ground of diverse citizenship, the judgment of the Circuit Court of Appeals is final, although another ground for jurisdiction in the Circuit Court may be developed in the course of subsequent proceedings in the case.

THIS was an action in ejectment brought by John Turck against the Colorado Consolidated Mining Company, December 2, 1885, in the Circuit Court of the United States for the District of Colorado. The complaint alleged:

“First. That plaintiff is a resident and citizen of the State of Colorado; that the Colorado Central Consolidated Mining Company, defendant, is a corporation organized and existing under and by virtue of the laws of the State of New York; that the amount in dispute in this action exceeds the sum of $500 exclusive of costs.

"Second. Plaintiff further alleges that upon the first day of January, A.D. 1885, he was the owner of, seized in fee and entitled to the possession of a certain lode mining claim and premises, situate in Argentine mining district, Clear Creek County, Colorado, described as follows, to wit: The Aliunde Tunnel lode, No. 2, with all the dips, spurs, angles and variations of said lode throughout their entire length and depth, and all other lodes, veins, ledges or deposits of mineral, the top or

Statement of the Case.

apex of which lie inside of said Aliunde Tunnel lode, No. 2, as patented to John Turck by certain letters patent of the United States, dated the 31st day of January, A.D. 1883, which lode, mining claim and premises are described in said patent as mineral entry No. 1862 in the series of the United States land office at Central City, Colorado, and designated by the surveyor-general of the State of Colorado, as survey lot No. 1494, which lode is fifteen hundred feet in length, by one hundred and fifty feet in width.

"Third. That said Aliunde Tunnel lode, No. 2, has a pitch to the northwest of about sixty degrees from a horizontal; that the top and apex of said lode lies within the side and end lines of said Aliunde Tunnel lode, No. 2; that owing to the dip of said lode to the northwest, at a depth of about three hundred feet beneath the surface of the ground, said Aliunde Tunnel lode, No. 2, passes under the north side line of said. patent and enters the land adjoining; that while plaintiff was so seized and possessed of said Aliunde Tunnel lode, No. 2, the defendant afterwards, and on the 1st day of January, A.D. 1885, wrongfully entered upon and ousted the plaintiff from about four hundred feet of said Aliunde Tunnel lode, No. 2, mining claim and premises next hereinafter described, and now wrongfully withholds the same from plaintiff, that is to say: That said defendant wrongfully ousted the plaintiff from so much of said Aliunde Tunnel lode, No. 2, mining claim and premises as lies beneath the depth of three hundred feet beneath the surface of the ground north of the north side line of said Aliunde Tunnel lode No. 2, carrying said north line down vertically, and from thence on the pitch of said lode northwesterly, and measuring thence along the line of said. Aliunde Tunnel lode, No. 2, a distance of four hundred feet next west of the northeast end line of said claim."

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.

Statement of the Case.

The defendant answered by a general and special denial, and for a second defence said:

"1. That it is, and ever since the 15th day of December, A.D. 1879, it hath been, the owner and seized in fee and in the actual possession of the Colorado Central lode mining claim survey, lot No. 261, being a lode mining claim 1500 feet in length by 50 feet in width, and of all lodes the tops or apexes of which may be found within the lines of said survey, lot No. 261.

"2. That said Colorado Central lode mining claim was entered for patent and patented by the United States to the grantors of defendant before said date and long before the real or pretended discovery, location or patenting of said Aliunde Tunnel lode, No. 2.

"3. That said Colorado Central lode mining claim lies immediately to north of and adjoining the survey lot of said Aliunde Tunnel lode, No. 2, and that whatever vein the defendant has worked on is the vein of the Colorado Central lode, or some vein having its top or apex within the side lines of said survey lot No. 261, and not within the side lines of the survey lot of said Aliunde Tunnel lode, No. 2."

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 defence, 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