Respondent Brief in Opposition — Huckins v. Duval County (No. 916)

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INDEX

: | - Page

| Adoption of Petitioners’ Statement een

Question Presented Ridsieniiel cexncethes beepers csuiebatusre vectra 1

Summary of PUIG so isessserrecnosse: eo . 14

Argument Sridionaielaacias sevvnavennssnnateccceees ee 0-14

Proof of Service we Naen HE iciovenhini Sena ees ace

List of Authorities — Judicial Decisions

Page

Blaekburn v. Portland Gold Mining Co., 175 U.S.

‘S71; 44 L. Ed. 276, 20 Sup. Ct. Rep. , SSR 7

California Powder Works v. Davis, 151 U.S. 389, ‘

38 L. Ed: 206, 14 Sup. Ct. Rep. 350 ....0..0002.00..... .. 8

Colorado Cont: ‘Consol. Min. Co. v. Turck, 150 U.S.

188, 37 L. Ed. 1030, 14 Sup. Ct. Rep. aria 7

Defiance Water Co. v. Defiance, 191 U.S. 184, | :

48 L. Ed. 140, 24 S. Ct. 63 shedpisicdiaehabin tiene i en a” 6

De Lamar’s Nevada Gold Mining | Co. v. Nesbitt, 177

. U.S. 523, 44 L. Ed. 872, 20 Sup* Ct. Rep. 715 mam 8

Denver v. New York Trust Co., 229 U.S. 123, 57

Le, Bd. 2101, 3B S. Ct. CBT -icccccccscccccossececscetMNccsenne. 6

First National Bank v. Williams, 252 U.S. 504,

AG Ke, TA, GRO, OG Ca, BIB scehecsssvecsssccccescccseseseses: 6

Florida C..& P. R. Co. v. Bell, 176 USS. 321,

44 L. Ed. 486, 20 Sup. Ct. Rep. SR 7

Gully v. First National Bank 299 U.S. 109,

foe FS eS ee 6

_ Hooker v. Los Angeles, 168 U.S. 314, 47 L. Ed.

FF Se Mis MI assist sancnsacadieniana aaeccunncasknnncearss 8

Joy v. St. Louis, 201 U.S. 332, 50 L. Ed. 776,

a. ¢ jae e ee 6

King County v. Seattle School Dist. 263 U.S. 361,

68 L. Ed. - TEN) ls OE sale tanlnedces ecco vests 6

Little York Gold-Washing & Water Co. v. Keyes, |

96 U.S. 199, 24 L. Ed. 656 wos ccccccccsssceeees 7, 8

ill

List of Authorities—Judicial Decisions Cont’d.

Page

New Orleans v. Benjamin, 153 U.S. 411,

} we Re. Rene 6

Robinson v. Anderson, 121 U.S..522, 30 L. Ed...

. 1021, 7S. Ct. RT RRS NADY Ana be SieE nee hes EINES 9

- San Francisco v. Scott, 111 U.S. 768, 28 L. Ed. 593,

Rs Ss MI WIE Wieden coca card cancess colconnecnstnirvrccncions 8

Shoshone Min. C. v. Rutter, 177 U.S. 505, ;

44 L. Ed. 864, 20 Sup. Ct. Rep. 726 ......0......... 7, 8

. Shulthis v. McDougal, 225 U.S, 561, 56 L. Ed. |

Ss WHEE scaclosmccbacansnscecde succes cnimenaen 7

Starin v. New York, 115 U.S. 248, 29 L. Ed. 388,

Taylor Vv. Smith, CCA 7th, 167 Fed. 2d 791, |

oe | 8 ewe iordeisnbelhons weadaaneskate'cave Case Ia VerreIeEd 6

Treaty

Treaty of Amity Settlements and Limits ................ 2, 5

Statutes

Title 28 USCA Section 1331 oes nate ]

Act of May 8, 1822 (2 Statute 709) ooo... 2, 4; 5

Act of Feb. 8, 1827 (4 Statute NEE nksacecaeecaseas etna 4,5

Miscellaneous:

ae wee OE oe 14

Vol. 4 American State Papers, Public Lands

ee Un BS Oe ni isseuctamine reas icaoaiennts 2

NOTE.—The respondents, being satisfied with the

petitioners’ references to the “Opinion Be-

3 low,” “Jurisdiction,” “Statute Involved,”

and “Statement of the Case,” hereby ac-

cept them. P

QUESTION PRESENTED

Although the petitioners present for review three

proposed questions, these respondents cannot accept

the question or questions before this Court as being as

presented by the petitioners but as being more prop-

erly stated as follows:

Do the allegations of the Complaint present mere-

_ ly_a question of land boundaries, or a question

arising- under the Constitution, laws or treaties of

the United States within purview of section

1331(a), title 28, of the United States Code?

It is the contention of the respondents that nothing

more than land boundaries is presented by the peti-

tioners’ Complaint filed in the District Court.

SUMMARY OF ARGUMENT

The answer to the question of jurisdiction of the

District Court of this case revolves around a construc-

tion of the following portion of section 1331, title 28,

of the United States Code, as that section provided

at the time this action was commenced on November

~ 10, 1958, to wit: ;

’ “The district courts shall have original jurisdic-

. tion of all civil actions: wherein the matter in con- -

troversy exceeds the surn or value of $3,000.00,

exclusive of interest and costs, and arises: under

the Constitution, laws or treaties of the United

States.” (Emphasis supplied) — -

For the court to have jurisdiction under this Statutory

provision, the cause of action, that is, the question for .

stitutional, statutory or treaty provision of the United -

determination of the case, must: arise under some con-

States, not be merely a quiéstion of the location of a

land boundary. ee

On April 5, 1816, the King of Spain granted to An-

- drew Atkinson, by Royal Title, a parcel of land in East

Florida, described as being: ~ ai.

“A tract of land consisting of four hundred fifty

acres, more or less, on:the St. Johns River, at the

place known by the name of King’s Plantation or

the Shipyard,' joining on the nortlt with- the St.

- Johns River; on the south with pine land; on the

east with a creek, which divides said lands of

Vincent Ferrer; and on the west with the swamp

of the said river St. Johns.” (Vol. 4, American:

State Papers, Public Lands,” Duff Green Edition,

page 406, No. 20.)

This tract of land is sometimes referred to as the “An-

_ drew Atkinson Grant.” The Treaty of Amity, Settle-

ment and Limits, between the King of Spain and the ~

United States, by Article VIII thereof. required that

“all grants of land made before the 24th of January —

1818 . . . shall be ratified and confirmed to the person

in’ possesson .of the lands, to the same extent that the

. Same grants would be valid if the territories-had re-

mained under the dominion of” Spain. Subsequent

to the effective date of said treaty, the Congress of the

United States, by its Act of May 8, 1822, (2 Stat. 709)

made provisiog for, and set up the procedure to be fol-

lowed, in ratifying and confirming Spanish grants of

‘land in the Floridas prior to January 24, 1818, includ-

E 3

ing the setting up of a Commission to receive applica-

tions for ratification and confirmation of such claims,

to determine what disposition should be made of such |

- applications, and to report their findings and recom-

_ mendations to the Congress of the United States. This

the said Commission did as to the said-Andrew Atkin-

son grant, finding it valid and binding on the United

States under and ‘pursuant to said article VIII of the

said Treaty of Amity, Settlement and Limits, and

recommending to the Congress that the said grant be

recognized and confirmed. The said Andrew .Atkinson

grant was approved and confirmed by the said Com-

missian and by the Congress of the United States by

its Act of February 8, 1827 (4 Stat. 202). .

Under section 7 of said Act of February 8, 1827, it

was made the duty of the keépers of the public ar-

chives of the Floridas to furnish “the surveyor of pub-

lie lands in Florida, without delay, a description of

each claim to land, which shall have been confirmed,

which shall specially designate the quantity, locality

and connection of such claim; and where the confirma-

tion may have been made on a grant or survey, a copy

of the courses and distances contained in such grant or

survey, and the date of the survey or’ grant; and it

shall be the duty of the surveyor of public lands in

Florida, to cause, under such. instructions as he may

receive from the Treasury Department, the said claims

to be surveyed, and connected with the township lines

of the public surveys, and to give to them their proper

township and sectional numbers, agreeably to such de-

scriptions; and he shall make separate plats and cer-

tificates of survey of the same, one of which shall be

returned to the office of the register of the land office

for the district in which the land may lie, and the

other shall be delivered to the claimant. But it shall be

4 '

"the duty of the surveyor to withhold his certificate,

if he shall have reason to believe that the lands ;

claimed are other‘lands than those intended to be con- .

~ firmed; or if. it shall appear that the survey, under

which the land is claimed, has been made subsequent |

to the date of the survey under which the claim was |

¢ confirmed.” (Emphasis supplied. )

These proceedings and Congressional action deal

with.a parcel of land and the identification and loca-

tion of it. The existence and the operation of the Treaty

_of Amity, Settlement and Limits, the Act of Congress

of May 8, 1822 (2 Stat. 709) and the Act of. Congress

of February 8, 1827 (4 Stat. 202), are admitted and

their construction is not necessary to a determination

of the question of the rights of the parties. The ques-

tion is one of ascertaining and determining the extent

of the lands granted to Andrew Atkinson by the King

of Spain on April 1, 1816. The petitioners contend that

its boundaries extend to and embrace the area claimed

by them, and the respondents contend that it extends

toa lesser area. The contention of both parties relate

to land boundaries, not to a construction or application

of the said treaty or the said Acts of Congress, or

either of them. The purpose and intention of the said

Acts of Congress, including the survey to be made

thereunder, was the establishment of the title and

boundaries of the land. The two lower courts were cor-

rect in holding that only a question of land boundaries,

and no question of the construction of the federal con-

stitution, or any act or treaty, was involved, and that

the District Court was without jurisdiction of the

cause.

“N 4

——

ARGUMENT

THE COMPLAINT OF THE PETITIONERS

FILED IN THE DISTRICT COURT INVOLVES

MERELY AND ONLY A QUESTION OF LAND

BOUNDARIES AND NOT ONE OF THE CON-

STRUCTION OF THE CONSTITUTION, LAWS

OR TREATIES OF THE UNITED STATES.

The Treaty of Amity, Settlement and Limits be-

tween the King of Spain and the United States by

article VIII thereof, required that the United States

recognize as valid grants made by Spain prior to Janu-

ary 24, 1818, which, under the laws of Spain, would

‘Wave been recognized had. there been no change of

_National title. This constitutional provision was

deemed applicable to the Andrew Atkinson grant of

* April 5, 1816, described in the Complaint filed in the

-_ District Court. This grant, pursuant to the act of May 8,

1822, was duly considered, approved and fully rec-

ognized as valid, by the Commission provided by the

said Act, which’ action of the said Commission was

recogrized and approved by the Act of Congress of

February 8, 1827, subsequent to which it was duly

surveyed as required by said Act of 1827.

A reading of the Complaint clearly shows a dispute

as to the location of the boundaries of the Andrew At-

kinson grant. Its location and boundaries were estab-

lished and fixed by the proceedings had under the said

acts of May 8, 1822 and February 8, 1827, which

boundaries must be presumed to have beeen surveyed

by the government surveyor as directed by the Act

of February 8, 1827. If the said government surveyor

made an error in running the boundaries of the said

. tract of land, it was the fault and error of the surveyor

and not of the Treaty of Amity, Settlement and Limits,

onaied omecennermeenee es oR ili

t ,

-or the acts of May 8, 1822 or of February 8, 1827. The

case does not arise under the Constitution, laws o

treaties of the United States. |

In Gully v. First National Bank, 299-U.S. 109, text

112 and 113, 57 S. Ct. 96, 81 L. ed. 70, text 72, Mr.

Justice Cardozo, writing for the Court, said that:

“How and when a case arises ‘under the Consti-

tution or laws of the United States” has been much

‘considered in the books, some tests are well es-

. tablished. To bring a case within the statute,

a right or immunity created by the Constitution

or laws of the United States must be an element,

and an essential one, of the plaintiff’s cause of ac-

tion. Starin v, New York, 115 U.S. 248, 257, 29 L.

Ed. 388, 390, 6 S. Ct. 28; First Nat. Bank v. Wil-

liams, 252 U.S. 504, 512, 64 L. Ed. 690, 692, 40 S.

Ct. 372. The right or immunity must be such that

_ it will be supported if the Constitution or laws

of the United States are given one construction

or effect, and defeated if they receive another.

Ibid.; King County v. Seattle School Dist. 263,

U.S. 361, 363, 364, 68 L. Ed: 339-341, 44 S. Ct. 127.

’ A genuine and present controversy, not merely a

possible or conjectural one, must exist with refer-

ence thereto (New Orleans v. Benjamin, 153

US. 411, 424, 38 L. Ed. 764, 769, 14 S. Ct. 905;

Defiance Water Co. v. Defiance, 191 U.S. 184, 191,

48 L. Ed. 140, 143, 24 S. Ct. 63; Joy v. St. Louis;

201 U.S. 332, 50 L. Ed. 776, 26 S. Ct. 478; Denver

v. New York Trust Co. 229 U.S. 123, 133, 57 L. Ed.

1101, 1120, 33 S. Ct. 697... .)”

In Taylor v. Smith, CCA 7th, 167 Fed. 2d 797, 12

- ALL.R. 2d 1, text 4, the court said:

“To bring the case within the statute the right

created by the laws of the United States must be

an essential element of plaintiffs’ cause of action.

The right must be-such that it will be supported if

the laws of the United States are given one con-

“

nite SA AIR Pn oS

q -

struction or effect, an defeated if they receive

another. but a genuine and present controversy,

_ not merely a possible or conjectural one, must.

exist with reference thereto.” Citing Gully v.

First National Bank, supra.

And,

... before the jurisdiction of the District Court ©

can be maintained on the ground that a federal

question is involved, it must appear that the fed-

eral question is one in substance and not in mere

assertion and ‘this must appear from the plain-

tiff’s statement of his own claim... .’”

- The case of Shulthis v: McDougal (1912), 32 S. Ct.

705, 225 U.S. 561, 56°L. ed. 1205, text 1211, involved

conflicting claims to a tract of land alloted to the Creek

Indians and the Court speaking through Mr. Justice

Van Devanter, had this to sav:

“3. A suit to enforce a right which takes its origin

in the laws of the United States is not necessarily,

or for that reason alone, « 1e arising under those

laws, for a suit does not so arise unless it really

and substantially involves a dispute or contro-

versy respecting the validity, construction, or

. effect of such a law, upon the determination of

which the result depends. This is especially so ofa .

suit involving rights to land acquired under a

law of the United States. If it were not, every

suit to establish title to land in the central and

western states would so arise, as all title in those

States are traceable back to those laws. Little

York Gold-Washing & Water Co. v. Keyes, 96

U.S. 199, 24 L. Ed. 656; Colorado Cent. Consol.

Min. Co. v. Turck. 150 U.S. 138, 37 L. Ed. 1030.

14 Sup. Ct. Rep. 35; Blackburn v. Portland Gold

Min. Co. 175 U.S. 571, 44 L. ed. 276, 20 Sup. Ct.

Rep. 222, 21 Mor. Min. Rep. 358; Florida C. &

P. R. Co. v. Bell, 176 U.S. 321. 44'L. Ed. 486. 20

_ Sup. Ct. Rep. 399; Shoshone Min. Co. v. Rutter.

177 U.S. 505, 44 L. Ed. 864, 20 Sup. Ct. Rep. 726;

De Lamar’s Nevada Gold Min. Co. v. Nesbitt, 177

U.S. 523, 44 L. Ed. 872, 20 Sup. Ct. Rep. 715.”

In Hooker v. Los Angeles, 168 U.S. 314, 23 S. Ct.

395, 47 L. Ed. 487, it was contended that the decision

of the state court against the claim of plaintiffs in er-

. ror to certain riparian rights and in certain alleged

. percolating waters, which rights were alleged to be

derived from a patent of the United States, and con-

firmed Mexican grants, was a decision against a title, —

right, privilege, or immunity claimed under the Con-

stitution or some statute or treaty of the United States

and so reviewable here. But this Court held otherwise,

and said:

“Obviously, the question as to the title or right of

plaintiffs in error in the land, and whatever apper-

tained thereto, was one of state law and of gen-

eral public law;.on which the decision of the state .

court was final. San Francisco v. Scott, 111 U.S.

768, 28 L. Ed. 593, 4 Sup. Ct. Rep. 688; California

Powder Works v. Davis, 151 U.S. 389, 38 L. Ed.

206, 14 Sup. Ct. Rep. 350." >

Mr. Justice Brewer in Shoshone Mining Co. v. Rut-

ter and Bradley (1900); 177 U.S. 505, 20 S. Ct. 726,

44 L. Ed. 864 in speaking of the constitutional pro-

. visions relating to the jurisdiction of Federal Courts

and the Congressional authority concerning Federal

‘ eviameaaasioins said:

... It has so constructed the judicial system of

the United States that the great bulk of litigation

respecting rights of property, although those

rights may in their inception go back to some law

of the United States, is in fact carried on in the

courts.of the several states .

and then quoted from Little York Gold-Washing &

Water Co. v. Keyes, 96 U.S. 199, 203, 24 L. Ed. 656,

658:

“*“The suit must, in part at least, arise out of a

controversy between the parties in regard to the

operation and effect of the Constitution or laws

upon the facts involved. . -. Before, therefore, a

circuit court can be required to retain a cause

under this jurisdiction, it must, in some form, ap-

pear: upon the record, by a statement of facts, ‘in

legal and logical form’, such as is required in good

pleading, . . . that the suit is one which ‘really

and -substantially involves a dispute or contro-

‘ versy’ as to a right which depends upon the con-

struction or -effect of the Constitution or some

law or treaty of the United States.”’”

* The case of Robinson v. Anderson (1887), 121 U.S.

922, 30 L. Ed. 1021 is peculiarly- applicable to the case

at bar as the Court, through Mr. Chief Justice Waite,

said: .

““This is a writ of error sued out under section’5 -

of the Act of March 3, 1875, chap. 137, 18 Stat. at

L. 470, for the review of an order of the circuit

court dismissing a suit brought by Robinson, a

‘citizen of California, against other citizens of the

same State, for want of jurisdiction. The claim

. on the part of the plaintiff in error is that upon

the face of the complaint it appears that the suit

is one arising under the Constitution- or laws or

treaties of the United States, and that conse-

quently the circuit court: had jurisdiction by.

reason of the subject matter of the action; but on

examination we find that, according to the plain-

tiff’s own showing in his complaint, his rights all

depend on the boundaries of the Rancho Los Bol-

Sas, granted by the Mexican Government to

Manuel Nieto, and confirmed and patented to his

representatives by the United States under the

Act of March 3, 1851, Chap. 41, 9 Stat. at L. 631,

“to ascertain and settle the private land claims in

the State of California.” Primarily these bounda-

. Ties depend on the description of the land granted

as found in the patent issued under the decree of

confirmation, and it nowhere appears that either

the Constitution or any law or treaty of the United

States is involved in this.’

“

“Even if the complaint, standing by itself, made

out a case of jurisdiction, which we do not decide,

it was taken away as scon as the answers were in,

because if there was jurisdiction at all it was by

reason of the averments in the complaint as. to

what the defenses against the title of the plaintiffs

would be; and these were of no avail as soon as the

answers were filed and it was made to appear that

na such defenses were relied on. The circuit court

cannot be required to keep jurisdiction of a suit

simply because the averments in a complaint or

_ declaration make a case arising under the Con-

stitution, laws, or treaties of the United States, if,

when the pleadings are all in, it appears that these

averments are immaterial: in the determination

of the matter really in dispute between the par-

ties, and especially, if, as here, they were evi-

dently made, “for the purpose of creating a case”

cognizable by the circuit court, when none in fact

existed ....’” “ . 3 |

From the above and foregoing authorities the rule

appears that an action having for its purpose the en-

forcement of a right which finds its origin ‘in the Con-

stitution, treaties or laws of the United States is not

necessarily and for that reason alone one arising under

such Constitution, treaties and laws. An action arises -

under the Constitution, treaties or laws of the United

States, or presents a federal question, where and onlv

where it involves a question with respect to the.cor-

struction or effect of the Federal Constitution, or with

respect to the validity, construction, or effect of an act

of Congress or a treaty, the determination of which ‘°

necessary to a correct decision, or involves some right,

title, privilege or immunity which will be sustained if

the Constitution, treaties or laws of the United States

- are given one construction, and defeated if they re-

ceive another construction. Would the right of the peti-

tioners to the land area claimed in their Complaint be

sustained if article VIII, of the Treaty of Amity, Set-

tlement and Limits, between the King of Spain and

the United States, and the Acts of Congress of May 8,

1822 and of February 8, 1827, are given one construc- _

tion and would such right of the petitioners be de-

feated if they are given another? These respondents |

submit that the petitioners’ claim depend upon the

__” boundaries of the said Andrew Atkinson grant, and not

on the construction of the. said treaty and acts of Con-

gress or any of them.

allegations or facts ‘in the Complaint which affirma-

tively show that a constructidn-of the Treaty or the

Acts of Congress are necessarily involved or required.

The Treaty, and the Acts of Congress made pursuant

thereof, are the sources of Andrew Atkinson’s title, the

original claimant. There are no. factual allegations in’~

the Complaint to the effect that the mandates of the

Treaty have not been complied with. Neither are there

any factual allegations in the complaint.:to show that

the Acts of Congress of May 8, 1822 or of February 8,

1827 have not been complied with. The petitioners

assert, however, that their rights require a construc-

tion of said Treaty and said Acts of Congress; that

_ their rights will be supported if the treaties and. laws

are given one contruction or effect, and defeated if they

receive another. These allegations are merely conclu-

sions of the pleader. The Treaty required that the

United States wouid recognize grants of land made be-

’ | 12

fore the 24th day of January, 1818 by his Catholic Maj-

esty to claimants in possession, and, that the same

‘would be ratified and confirmed to such claimants.

Nothing can be gleaned from the pleading that this was

not done. Since the Act of Congress of February 8,

1827 required that a survey of the private claims be

made, and also required the issuance of patents to such

claimants, after‘survey, it would seem reasonable that

* a patent must have been issued, although the plaintiffs

made no mention of the issuance of a »atent in the de-

raignment of their title (R. 4). Under the Treaty and

more than 130 ‘years the Court will indulge the pre-

sumption that the legal processes of acquiring title

were complied with and that all things were done to

secure to the claimant Andrew Atkinson title to lands

-which he claimed under the grant papers and which

* lands he was in possession.

The description of “Parcel A”, referred to in the

- Complaint, is not tied to any survey or map other than

the Extension Survey of 1949. The fact that an Exten-

sion Survey was made in 1949, as alleged in the Com-

plaint, is sufficient to show that “Parcel A”, which —

plaintiffs now ¢laim, was not shown on the Township

map or survey of 1851. The reason that “Parcel A” was

not shown on the map or survey of 1851 can only be

surmised. It was the duty of the public surveyor, in

making surveys and maps of the Township, from his

field notes, to show the position of the lands that were

surveyed. “Parcel A”, not having been shown on the

1851 map or survey, being shown for the first time on

the Extensior:.Survey of 1949, could not, therefore,

have beén determined by the public surveyor to have.

been part of the original grant.

DAE SNe in svi

CE mes at OLE ee ged iON (8

OB he Wi ei MAN ct ce hdl ine

. a.

wh r

: 13

The petitioners in their alleged claim of ownership

‘of “Parcel A”, deraign their title of the original grant

from its confirmation down to the time when they re-

ceived title. In ‘this deraignment (R. 8) it is shown

that the title to “said land” was quieted in a suit in the

Circuit Court; that a Final Decree was entered in said

cause on May 3, 1916. If it is the purpose of the peti-

tioners to fix and determine the Northerly boundary of

the grant as running to. the river then, the question

arises: What has happened to the Northerly boundary

since the Final Decree in said Circuit Court, which:

Decree necessarily had to describe the boundaries of

the lands, the title of which was quieted? The said

confirmatory Act of Congress did not fix or definitize

the northern boundary of the original grant. Accord-

ing to the terms of the Statute, a survey was required:

also the issuance of a patent was authorized upon a

survey being made of the claim. Such survey neces-

sarily had to be made of the lands of which the claim-

ant was.in possession in order to meet the require-

ments and provisions of Article VIII of the Treaty.

The paramount reason for requiring surveys to be

made was in order to separate the private claims from

the public domain. Pursuant to the requirements of

said statute, surveys were accordingly made and re-

turned to the General Land Office and became a part

of the public records. These surveys of the private

, Claims made pursuant to the statute necessarily had

to be made of the lands whic!: claimants were in

possession of, in order to conform to the provisions of

Article VIII of the Treaty. It is alleged in the Com-

plaint that a survey of said Township, by Marcellus A.

Williams, was made in the first quarter of 1851 and ap-

proved by the Surveyor General on October 25. 1851.

The private claim of Andrew Atkinson, and other

claimants, are shown on this survey or map. of said

Township.

The Extension Survey of 1949, made by Oscar B.

WaAlsh and Paul K. Russell, clearly shows the northern

boundary of the Atkinson grant to be some distance

from the lands having a position in said Extension

Survey. “Parcel A” described in the Complaint was

determined to be a part of the public domain of the

United States. (R. 13) Therefore, it would appear

that the case made by the Complaint is no more than

a dispute with reference to a boundary. This was the

conclusion reached by the District Judge, which was

affirmed by the Court of Appeals. Petitioners argue.

in their Brief, that fur practical purposes, the sole basis

of this suit under the Treaty and Acts of Congress :s

.to have the river established .as a boundary of the

grant, and, that such right constitutes a federal ques-

tion. They argue that with respect to their rights, there

exists a dispute with respect to the construction, or ef-

fect, of the Constitution laws and treaties creating

such rights. The respondents, on the other hand, con-

tend that the Complaint does not by positive allega-

tions of facts show the existence of a substantial right

. as would constitute a federal question.

The petitioners have failed, by their Complaint filed

in the District Court, to show that t.:e litigation “‘arises

States.” Only a question of the boundaries of the An-

drew Atkinson grant is in issue.

NOTE: There appears in 12 A.L.R. 2d, on pages 5

to 74, an annotation on the question of “What actions —

arise under Constitution, laws and treaties of the

United States; general principles.”

Boiron:

Respectfully submitted,

RICHARD W. ERVIN

Attorney General

FRED M. BURNS”.

ROBERT C. PARKER

Assistant Attorneys General

SID J. WHITE

Special Assistant

Attorney General

Capitol Building, Tallahassee,

Florida

Attorneys for the Respondents

Trustees of the Internal

- J. HENRY BLOUNT

1325 Barnett National Bank Bldg.

Jacksonville, Florida

Attorney for Respondent

Duval County, Florida ~

c+.

: ere

CERTIFICATE OF SERVICE

I hereby certify that a copy hereof has been fur-

nished to Herman Ulmer, ie Esquire; 1215 Barnett

Bank Building. Jacksonville 2, Florida, Attorney fo

. Petitioners, by mail, this a iibaerauialaaies day of May, A.D.

. 1961. |

FRED M. BURNS

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