on this court. And the court further finds | States "there are citizens, but no subjects. with and for the defendants and against 'Citizen of the United States.' 'Citizens of the complainants on the evidence, and that the bill as amended is without equity. And, for both and all the reasons hereinbefore recited," the bill was dismissed.

The court then granted a certificate in these words: "It is certified that the question of jurisdiction referred to in the opinion was passed upon, but that the case was also determined upon its merits. The question of jurisdiction set forth in the opinion filed herein, together with the question of the merits of the case, is hereby certified to the Supreme Court, all of which are shown by the decree and the opinion."

another state.' 'Citizens of different states.' 'A state or citizen thereof.' The term 'subject' occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet 'foreign' is prefixed."

The supreme court of North Carolina, in State v. Manuel, 20 N. C. (4 Dev. & B. L.) 20, 26 (quoted in United States v. Wong Kim Ark, 169 U. S. 649, 42 L. ed. 890, 18 Sup. Ct. Rep. 456), said: "The term 'citizen,' as understood in our law, is precisely analogous to the term 'subject' in the common law, and the change of phrase has en-[35] tirely resulted from the change of governAn appeal was taken directly to this ment. The sovereignty has been transcourt under the first of the classes of cases ferred from one man to the collective body enumerated in § 5 of the judiciary act of of the people; and he who before was a 'subMarch 3, 1891 (26 Stat. at L. 827, chap.ject of the King' is now 'a citizen of the 517, U. S. Comp. Stat. 1901, p. 549), and state."" we are shut up to the consideration of the question of jurisdiction alone. We do not understand that the amount in controversy was treated below as having any bearing in respect of that question. The act of March 3, 1881, provides for jurisdiction "without regard to the amount in controversy," and [34]the averment here was that the value of the trademark exceeded $2,000. The point, however, was not relied on, and we confine ourselves to the question of jurisdiction as dependent on citizenship.

By the Constitution the judicial power of the United States extends to controversies between citizens of a state "and foreign states, citizens, or subjects." And by statute, circuit courts of the United States have original cognizance of all suits of a civil nature, at common law or in equity, in which there is "a controversy between citizens of a state and foreign states, citizens, or subjects." 25 Stat. at L. 433, chap. 866.

In Stuart v. Easton, 156 U. S. 46, 39 L. ed. 341, 15 Sup. Ct. Rep. 268, it was held that by the description of plaintiff as "a citizen of London, England," the fact that he was a subject of the British Crown was not made affirmatively to appear as required; but, in the case at bar, complainants described themselves as "all of Cognac in France, and citizens of the Republic of France," and this was sufficient.

In that view, the people of France are properly described as citizens of that Republic.

As complainants were citizens of a foreign state, and defendant was a citizen of Nebraska, as affirmatively appeared from the pleadings, no issue of fact arising in that regard, the circuit court had jurisdiction.

Decree reversed, and cause remanded for rehearing on the merits.

JAMES HENNESSY et al., Appts.,

v.

WALTER MOISE et al. (No. 204)

JAMES HENNESSY et al., Appts.,

v.

CARRIE MAY et al. (No. 205)

(See S. C. Reporter's ed. 35.)

Mr. Chief Justice Fuller:

These cases must take the same course as that just decided, and the same decrees will be entered.

P. H. KIRWAN, as United States Surveyor General for the District of Minnesota, and Thomas H. Croswell, Appts.,

v.

SIMON J. MURPHY, George O. Robinson,
Elisha A. Flinn, and Temple E. Dorr.

No averment of alienage was necessary. It is true that by § 6 of the judiciary act of March 3, 1891, the judgments and decrees of the circuit courts of appeals were made final in cases, among others, in which the jurisdiction was dependent entirely on the opposite parties to the suit or controversy being citizens of different states, or "aliens and citizens of the United States." the word "aliens" as there used embraces subjects or citizens of foreign countries, and not merely persons resident in this country, who owe allegiance to another. And the language of the Constitution and of the act. determining the jurisdiction of the circuit courts is explicit.

But

In Chisholm v. Georgia, 2 Dall. 419, 456, 1 L. ed. 440, 456, Mr. Justice Wilson said that under the Constitution of the United

(See S. C. Reporter's ed. 35–56.)

Equitable jurisdiction-irreparable injury -multiplicity of suits-interference with executive administration.

NOTE. On the scope of equitable jurisdiction -see notes to Fuller v. Detroit F. & M. Ins. Co.

(C. C. N. D. Ill.) 1 L. R. A. 801; and Corinth Locke (Vt.) 11 L. R. A. 207.

On the jurisdiction of equity where remedy at law exists-see notes to Meldrum v. Meldrum

(Colo.) 11 L. R. A. 65; Delaware, L. & W. R. Co. v. Central Stockyards & T. Co. (N. J. Eq.) 6 L. R. A. 855; and Tyler v. Savage, 36 L. ed. U. S. 83.

1. The prevention of irreparable injury and of a multiplicity of suits cannot be invoked as grounds for equitable relief against a threat ened survey, under direction of the Land Department, of lands to which complainants assert title, but which the Department claims to be unsurveyed public lands of the United States, where such survey can be made with out material injury to the soil or timber, and the persons directly interested in such sur vey are not made parties, are not numerous, and assert separate and independent rights.

2. The courts cannot interfere with the execu

tive administration of the Land Department by enjoining, at the instance of persons claiming to be the owners of the land, a sur vey, under the direction of such Department. of certain lands lying between an alleged meander line and the actual waters of a lake, which are claimed by the Department to be unsurveyed public lands of the United States.

[No. 161.]

the land in the township; that the survey,
field notes, and plat were incorrect, and did
not accurately show the location and subdi-
visions of the land and water of the town-
ship, for that Cedar Island lake is smaller
than delineated, and several of the complain-
ants' fractional lots are larger, and others
are smaller, than shown on the plat; that
complainants purchased said lands for value
as extending to the lake upon an estimate of
the timber thereon, without knowledge *of [37]
the inaccuracy or fraud of the survey; that
the principal consideration inducing such
purchase was that the land bordered on the
lake and they owned other timber lands, the
timber from which could be brought to mar-
ket by floating through the lake and its out.
let down the St. Louis river, then the only
means of transport; that in 1892 five cer-
tain settlers, knowing complainants' rights
and claims, petitioned for a survey of said
lands, which the surveyor general recom-

Argued January 30, February 2, 1903. De- mended to the Commissioner of the Gener

cided April 6, 1903. al Land Office should be allowed, but the petition was disallowed, whereupon, on apPPEAL from the United States Circuit peal to the Secretary of the Interior, such

A Court of Appeals for the Eighth Cir. proceedings were thereafter had that in ve

cuit to review a decree which affirmed a decree of the Circuit Court for the District of Minnesota perpetually enjoining a survey, under the direction of the Land Department, of certain lands claimed by it to be unsurveyed public lands of the United States. Reversed and remanded to the Circuit Court, with directions to dismiss the bill.

See same case below, 48 C. C. A. 399, 109 Fed. 354.

Statement by Mr. Chief Justice Fuller: Murphy and others filed their bill of complaint in the United States circuit court for the district of Minnesota against Kirwan, as United States surveyor general for that district, and Thomas H. Croswell, as deputy surveyor, to enjoin them from surveying, by direction of the Commissioner of the General Land Office, certain lands claimed by the Land Department to be unsurveyed public lands of the United States.

Complainants alleged that they owned lots 1.2, and 3 of section 2; lots 1 and 2 of section 3; lots 1 and 8 and parts of lots 6 and 7 of section 4; and certain described parts of sections 9, 10, and 11, in township 57 north, range 17 west, 4th principal meridian, Minnesota, deriving title thereto through mesne conveyances and patents from the government; that the land was surveyed by Henry S. Пlowe in June, 1876, and records of the survey and field notes were approved by the surveyor general August 7, 1876, and a plat therefrom was by himn duly made and submitted to the Commissioner of the General Land Office; that complaint was filed against the accuracy and good faith of the survey, which the Commissioner dismissed, and June 11, 1879, approved the survey and plat, which were duly filed and are the only survey and plat of the township ever made or adopted by the government, and according to them the government sold and disposed of all

tober, 1895, the Commissioner of the General Land Office directed the United States surveyor general of the district of Minnesota to make a resurvey, which order was ratified and confirmed in November, 1896; that the contract for the resurvey of said land had been let by the surveyor general to Croswell, and the survey was about to

commence.

The bill averred that "by a new survey of said lands your orators will be put to great and vexatious litigation in making proof of their title in actions against parties who are wholly irresponsible; that a very large amount of the timber standing as aforesaid on the land of your orators and owned by them will be destroyed in the making of such proposed survey, and the remainder thereof exposed to damage by fire by reason of said resurvey, and your orators will be thereby irreparably injured."

The prayer was that the "surveyor general, his agents, attorneys, solicitors, and servants may be restrained by the order and injunction of this honorable court from entering into any contract for the survey of the lands herein described, or from surveying the same, or from taking any action for a survey of said lands or any part thereof, and that boundaries of said lands of your orators may be defined and set out in the decree and order of this honorable court, and that all necessary direction may be given them for that purpose and to establish the boundaries of said lands, and that your orators may be protected in the use and enjoyment of such lands so owned by them as aforesaid, extending to and including the shores of said Cedar Island

lake and to the center of said lake, and [38] that said defendant and his successors in office may be perpetually enjoined from letting said contract for the survey of said land or any part thereof, and from surveying the same or any part thereof, and that your

"2. There is no evidence, nor any marks upon the ground, to indicate that any actual survey of said township 57 was ever made by said Howe, as required by his said contract, and by the rules and regulations of the General Land Office, or at all, beyond the running and due marking of the exterior boundary lines of said township, where the section, quarter, and other posts and markings established by him are and always have been clear, distinct, and readily found and traced. There is no evidence on the ground that section lines were ever run by him in or across said township, or section corner posts or quarter posts ever located or set by him, except a corner post at the northwest corner of section thirty-six (36) and a quarter post in the western line of said section thirty-six (36), and there is no evidence that witness trees were ever blazed or marked by him.

orators may have such other and further | Louis county, Minnesota, was made by the relief as to this court may seem meet." government of the United States with one Argument was had on the application for Henry S. Howe, as a deputy surveyor of a temporary injunction, and the matter the United States, and thereafter said Howe taken under advisement, whereupon defend-made and filed what purported to be field ants filed their joint answer to the bill. notes of a survey of said township, from Defendants admitted the making of a which a purported official plat of said towncontract of survey of the unsurveyed lands in ship was thereafter made and approved by these sections lying between Howe's purport- the surveyor general of the United States ed meander line and Cedar Island lake; that for the district of Minnesota and by the in 1876 a contract was made with Howe for Commissioner of the General Land Office, of the survey of the township, and that he re- which plat Exhibit A, attached to the bill turned the field notes of a pretended sur- of complainants, is a substantially correct vey, from which a plat was made and ap- copy. proved; but defendants averred that Howe surveyed only the exterior lines of the township, and in fact made no subdivision thereof, nor surveyed the lands within it; that his field notes were false, fraudulent, and fictitious, and the plat made therefrom was false and incorrect; they admitted that the survey and plat were approved by the Commissioner of the General Land Office after complaint to him of its inaccuracy, but not until after withdrawal of the charge of inaccuracy by the person making it. They admitted that an exhibit at tached to the bill was a true copy of such approved plat; they denied that all of the lands were disposed of by the government, and alleged that about 1,200 acres in these sections were never disposed of and were still unsurveyed, lying between Cedar Island lake and the lots described, all of which unsurveyed land is the land referred to, and is, by the plat made from Howe's field notes, indicated as part of Cedar Island lake; they allege that no lots conveyed to the complainants were smaller than shown on the plats; that the true relative size of the lake to that shown in the plat was that shown on an exhibit attached, and that the land beween the lake and the boundary line of the fractional lots was 1,200 acres of unsurveyed government land as referred to; defendants denied the good faith of complainants, and alleged complainants' full participation in the contest proceedings resulting in the decision and order for the [39]survey of these lands, and that the Commissioner and the Secretary of the Interior had full jurisdiction to pass on the question, and to make the decision and order. The answer denied that the timber on com

*"3. Cedar Island lake is a navigable, [40] deep, and permanent body of water, fed principally by springs, having an area of about nine hundred (900) acres, instead of about eighteen hundred (1,800) acres as described in the field notes of Howe and shown on said official plat of said township. Instead of the shores of said lake being low and swampy as stated in said field notes, the banks are generally high and sloping lands, suitable for agriculture, extending around the lake, and support a good growth of pine and other forest trees large enough for lumbering, such as will not grow in water. The condition was the same in 1876, and no material part of the land surrounding the lake is accretion. Southerly and westerly of said Cedar Island lake are five other deep, navigable, and permaplainants' land would be destroyed or damnent lakes in the same township, none of aged in making such survey, and denied every averment of the bill except as in the

answer averred or denied.

The circuit court granted the preliminary injunction, and its order was affirmed by the circuit court of appeals for the eighth circuit. 28 C. C. A. 348, 49 U. S. App. 658, 83 Fed. 275. An appeal was taken to this court and dismissed. 170 U. S. 205, 42 L. ed. 1009, 18 Sup. Ct. Rep.

592.

which are shown by the field notes of Howe's survey or upon said government official plat of said township, and all of which have, since the making of said official plat, been sold and patented by the government as land according to said plat.

"4. There is no evidence upon the ground that any meander line of said Cedar Island lake was ever surveyed by said Howe, or any meander posts placed by him about said lake, except one where the north line of said township encounters said lake. And the outlet of said lake is at a different place from that described in said field notes and "1. On or about April 26, 1876, a con- shown upon said official plat. After the tract for the survey of all lands in town-making of the said survey and plat and beship 57 north, of range 17 west, in St. fore its approval, complaints touching the

The cause then went to final hearing, and the circuit court found the facts as follows:

accuracy thereof were made to the Commis- | any statement of the acreage or amount of sioner of the General Land Office, but, on the withdrawal of such complaints, the said survey and plat were approved.

"5. The land lying between the actual water line of said Cedar Island lake and the meander line of that lake, as delineated on said official plat of said town ship, comprises the land in controversy in this suit, and is the same land directed to be surveyed by the Commissioner of the General Land Office and referred to in the surveyor's contract, which is attached as Exhibit A to the answer in this suit, being therein described as 'the public lands situate in secs. 2, 3, 4, 9, 10, and 11, in town ship No. 57 N., R. 17 W., of the 4th princi[41]pal meridian, lying between the old mean der boundary of Cedar Island lake, as given by the original field notes of Henry S. Howe, U. S. deputy surveyor, approved by the surveyor general of Minnesota, Aug. 19, 1876, and the shore line of said Cedar Is

land lake.'

"6. Prior to the commencement of this suit the United States has sold, and by its patents has conveyed to the purchaser, according to said official plat made from said Howe survey, all the land in said township 57, as the same appeared upon said plat; to which plat all of said patents expressly refer; it being then and still the only government plat of said township.

"7. The complainants are the grantees and owners by mesne conveyances from the patentees of the record title to the following-described fractional lots in said township, to wit: Lots one (1), two (2), and three (3), in section two (2); lots one (1) and two (2), in section three (3); lots one (1) and eight (8), and portions of lots three (3), five (5), and six (6), in section four (4); lots one (1), two (2), three (3), and four (4), in section nine (9); lots one (1), two (2), three (3), and four (4), in section ten (10); and lot three (3) in section eleven (11),-being the same lands which are more particularly described in complainants' bill; and each of which fractional lots appear and are represented on said official plat as bounded by and upon said Cedar Island lake.

"8. So far as appears, none of the patentees of said lands had any notice or knowledge of any fraud or misconduct on the part of said Howe in or about the making of said survey and field notes, and all were purchasers in good faith of said lands.

"9. Complainants purchased said fractional lots of land of the patentees or their grantees for the pine timber thereon, and the convenience of landing the same in the said Cedar Island lake, to be driven to the place of manufacture; and before such purchase, in the year 1883, caused said lands to be explored and examined by an experienced timber estimator, who, in making such examination, used, as is customary in such cases, a copy of said official plat of said township, which did not have upon it

land in any of the subdivisions; and who[42] reported to the complainants his estimate of the amount of pine timber on said lands, and the general character of said land, and the riparian character thereof as bounded upon said Cedar Island lake; but did not discover or report any fraud or error in the survey of said township, or any error or mistake in the said official plat. And the said complainants purchased, paid for, and took conveyances of said lands in good faith, and without any notice or knowledge of any such fraud, error, or mistake.

"10. The other permanent lakes in said township, not shown upon such official plat, but appearing thereon as land, and since sold and patented by the government as land according to such official plat, include land lake; and portions of such lakes were areas equal to the area of said Cedar Ispurchased by complainants as land with their other purchases in said township. in this suit was ordered by the Commission"11. The survey sought to be restrained er of the General Land Office, upon the direction of the Secretary of the Interior, in a proceeding instituted by certain settlers upon the land in controversy; of which proceedings the complainants had due notice, and in which they appeared." Fed. 104.]

And the circuit court decreed:

[103

"That the complainants are the grantees and owners, by mesne conveyances from the patentees, of the title of record and, in fact, to the following-described fractional lots, situate in township fifty-seven (57) north, range seventeen (17) west, in the county of St. Louis, state of Minnesota, to wit:" [Here follows description of lots.] "being the same lands which are more particularly described in the complainants' bill of complaint herein; and that said above-described fractional lots extend to, and are bounded by and upon, the actual waters of Cedar Island lake.

"It is further ordered, adjudged, and decreed that the defendants have no jurisdiction or authority to meddle with said lands, or to make the survey complained of in the bill of complaint herein; and

"It is further ordered, adjudged, and decreed that the injunction *heretofore issued [43] in this cause be, and the same is hereby, made perpetual; and that the said defendants and their successors, representatives, and assigns be, and they are hereby, severally and perpetually restrained and joined from surveying, or causing to be sur veyed, the lands hereinbefore described, or any part thereof." And for costs.

en

Appeal was then taken to the circuit court of appeals and the decree affirmed. 48 C. C. A. 399, 109 Fed. 354. Thereupon the case was brought to this court.

the

The following drawing, taken from petitioners' brief, sufficiently illustrates situation: