Opinion of the Court. It is clear that this is a case in which the appeal was properly taken and within the time limited; and it is contended for the petitioner that under § 7 it has an absolute right to a supersedeas of the injunction pending the appeal, on the filing of a bond satisfactory to the Circuit Court. Reference is made to the case of Pasteur v. Blount, 51 Fed. Rep. 610, in the Circuit Court for the Southern District of Ohio, where, a supersedeas having been allowed, on granting a like appeal, a motion to vacate the supersedeas was denied, the court (Jackson, Circuit Judge) saying that, under § 7, there was no discretion in the court or judge allowing the same to deny or refuse the appellant a supersedeas. The argument made is, that the use, in § 7, of the words "in other respects," implies that there must be a stay as to the operation of an injunction, while the only discretion given is as to ordering a stay, "in other respects" than as to the injunction. But there is no express provision that the operation of the injunction must be stayed. The matter is rested wholly on implication. The defendant is sought to be protected by requiring him to take an appeal within thirty days and by giving precedence to the case in the appellate court; and discretion is given to the Circuit Court to proceed or not on the interlocutory decree pending the appeal. Where a plaintiff has an adjudication that he is entitled to an injunction, he has rights which cannot be abridged or stayed by language which is not more clear and unambiguous than that contained in § 7. The matter may be made clear by legislation. As it stands, the Circuit Court had a discretion to grant or refuse a supersedeas; and its discretion, as we have uniformly held, (In re Hawkins, Petitioner, ante, 486, and cases there cited,) cannot be controlled by a writ of mandamus. Application denied. Statement of the Case. HAMBLIN v. WESTERN LAND COMPANY. ERROR TO THE SUPREME COURT OF THE STATE OF IOWA. No. 1042. Submitted January 23, 1893. - Decided February 6, 1893. There must be at least color of ground for the averment of a Federal question in a case brought here by writ of error to the highest court of a State, in order to give this court jurisdiction. When a line of a land grant railroad as located does not satisfy the terms of the granting act, whether the Land Department may not consider it as a temporary and provisional one, quære. A reservation of public land from entry, made by the Department of the Interior as coming within the limits of a railroad grant, operates to withdraw the land from homestead entries, even if found afterwards not to come within such limits. A valid homestead entry could not be made upon indemnity lands of the Sioux City & St. Paul Railroad Company after the patent from the United States to the State of Iowa, issued June 17, 1873, under the act of May 12, 1864, 13 Stat. 72, c. 84. THIS case is submitted on a motion to dismiss or affirm. The facts are these: Defendant in error, the Western Land Company, on August 24, 1887, filed its petition in the District Court of O'Brien County, Iowa, to recover from the defendant Hamblin, now plaintiff in error, the possession of the northeast quarter of section 1, township 95 north, range 41 west, fifth principal meridian. Defendant appeared and answered; a trial was had, and on April 23, 1888, judgment was rendered in favor of the plaintiff, the Western Land Company, for the possession of the property. From this judgment Hamblin appealed to the Supreme Court of the State, which, on February 10, 1890, affirmed the judgment of the District Court. Thereupon Hamblin sued out a writ of error from this court. The Land Company's record title consisted of a patent from the United States to the State of Iowa, dated June 17, 1873, conveying the land to the State for the use and benefit of the Sioux City and St. Paul Railroad Company; a decree of the Circuit Court of the United States for the Southern District of Iowa, of May 18, 1882, (Chicago & St. Paul Railway v. Opinion of the Court. Sioux City &c. Railroad, 10 Fed. Rep. 435;) modified cn May 21, 1886, in pursuance of a mandate from this court, (Sioux City & St. Paul Railroad v. Chicago & St. Paul Railway, 117 U. S. 406,) by which the title of this land was adjudged held by the State in trust for the Chicago, Milwaukee and St. Paul Railway Company; a patent from the State of Iowa to the Chicago, Milwaukee and St. Paul Railway Company, of date September 27, 1886; and a warranty deed from the latter company to the Western Land Company, of date May 26, 1886. Hamblin's claim to the land rests upon the fact that in February, 1884, nearly eleven years after the issue of the patent, he took possession and made application to enter it under the homestead laws of the United States. This application apparently failed, and he made a second application in September, 1885. He built a house upon the land, and made other improvements, and has resided on it since March, 1884. It does not appear that the Land Department ever recognized any right in him to enter the land; so that his only claim is based upon the fact of occupation, made, as he says, with a view to entering it as a homestead. Mr. John S. Monk for the motion. Mr. W. L. Joy opposing. MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court. case. It is doubtful whether there is a Federal question in this A real, and not a fictitious, Federal question is essential to the jurisdiction of this court over the judgments of state courts. Millingar v. Hartupee, 6 Wall. 258; New Orleans v. New Orleans Water Works Co., 142 U. S. 79, 87. In the latter case it was said that "the bare åverment of a Federal question is not in all cases sufficient. It must not be wholly without foundation. There must be at least color of ground for such averment, otherwise a Federal question might be set up in almost any case, and the jurisdiction of this court invoked simply for the purpose of delay." Opinion of the Court. Now, in ordinary cases, it would not be doubted that a party entering upon vacant land, the title to which had been conveyed from the general government by patent to an individual, could not create a Federal question such as to give this court jurisdiction over the judgment of the highest court of the State, by simply averring that such possession was taken with a view of entering the land under the homestead laws of the United States, and that he went through the form of making application to the local land office for permission to make such entry; for if he could, as is suggested in the foregoing quotation from 142 U. S., almost any case in ejectment could be taken from the Supreme Court of a State to this. In order that such claim of the party in possession may raise a genuine Federal question, there must be some reason to believe that the apparent legal title transferred by the patent from the United States was wrongfully conveyed, and that the real title in fact remains in the government; and whether there be such shadow upon the legal title of the Land Company, that the denial of Hamblin's right to enter the land as a homestead presents a genuine rather than a fictitious Federal question, is a doubtful matter. We must therefore investigate not merely the instruments by which the legal title passed to the Land Company, but the legislation and proceedings claimed to give authority therefor. On May 12, 1864, Congress passed an act granting lands to the State of Iowa, to aid in the construction of two railroads. 13 Stat. 72, c. 84. So much of the first section as is material for the question here involved is as follows: "That there be, and is hereby, granted to the State of Iowa, for the purpose of aiding in the construction of a railroad from Sioux City, in said State, to the south line of the State of Minnesota, at such point as the said State of Iowa may select between the Big Sioux and the west fork of the Des Moines River; also to said State for the use and benefit of the McGregor Western Railroad Company, for the purpose of aiding in the construction of a railroad from a point at or near the foot of Main Street, South McGregor, in said State, in a westerly direction, by the most practicable route, on or near the forty-third parallel of north lat Opinion of the Court. itude, until it shall intersect the said road running from Sioux City to the Minnesota State line, in the county of O'Brien, in said State." It will be noticed that the road of the McGregor Company was to proceed westerly, on or near the forty-third parallel, to an intersection with the Sioux City road, in the county of O'Brien. On August 30, 1864, that company filed in the General Land Office a map of the definite location of its line. This line extended westwardly to a point in section 19, township 95, range 40, in O'Brien County, where it was then expected that a junction would be formed with the Sioux City road. In July, 1867, the Sioux City Company filed its map of definite location. Both of these maps were approved. The line of the Sioux City Company ran through the northwest corner of O'Brien County, and the western terminus of the McGregor Company's line, as located, was about nine miles south and twelve miles east of the point at which the Sioux City line entered O'Brien County on the west. The McGregor line did not, therefore, intersect with the Sioux City line in O'Brien County, nor come nearer to it than 17 or 18 miles. It will be noticed that, under the statute, the Sioux City line was not to be located so as to intersect with the McGregor line, but the latter was to proceed in a westerly direction and intersect the Sioux City line. In other words, the Sioux City Company had the primary right of location, the McGregor Company the subordinate, and the latter company was to locate its line in a westerly direction so as to connect with the Sioux City line wherever located in O'Brien County. So, although the McGregor Company's map of definite location was approved when filed, yet, after the filing and approval of the map of definite location of the Sioux City Company's line, the location made by the McGregor Company was questioned as not in conformity with the terms of the act; and on September 2, 1869, a new map of definite location was filed, and this has since been recognized by the Land Department as the true line of definite location. On March 15, 1870, and May 11, 1870, the local land offices were instructed by the Commissioner of the General Land Office to recognize this as the true line, and to restore to the public domain such lands |