Opinion of the Court.

under his patent 4058 is endeavoring to claim over sixteen thousand (16,000) more acres in said township' than he is entitled to claim thereunder, and by 'a malicious suit now seeks to cast a cloud upon the title of others who have entered the western lands in said township . . . honestly and according to law, and who are in the peaceable and undisturbed possession of the same.'”

The answer of the other defendant was similar. And further —

"In limine litis plaintiff's counsel filed an exception and motion to strike out a portion of the defendant's answers on the ground that the official plat of survey of G. F. Connelly, United States surveyor, made in 1836, and on which his patent was based, cannot be questioned or impeached by the defendant, and this court is wholly without jurisdiction to determine whether same is or not erroneous. And that the said patent cannot be questioned or impeached by the defendant for fraud or error.

"That the United States Government, as the owner of the sea marsh adjacent to the seashore and to West Bay, 'acquired all the alluvian made by accretion to said lands between the years 1836 and 1850; and when said lands were granted by the United States Government to the State of Louisiana,' same passed to the State by the granting act of Congress, and that same passed to the plaintiff as patentee thereof, and that he acquired all of said lands as well as the accretions which were added thereto, as they were at the time they were granted by the United States to the State of Louisiana,' said granting act passing a fee simple title in præsenti to the State, not only as the land was at the time of the survey by Connelly in 1836, but as it was at the date of the grant, and that the whole was acquired by the plaintiff as patentee.

"His additional representation is that the plaintiff as patentee acquired all of said lands in township No. 22 south, range No. 31 east, on the southeastern west of the river land district, according to the official survey of said lands in the state land office, as they were at the time they were granted by the United States to the State of Louisiana.'"

Opinion of the Court.

The decision of the district court was in favor of the motion, and after comment on the ruling the Supreme Court said:

"Reduced to a last analysis, the pleadings present for our consideration and decision a purely petitory action, in which the defendant holds the affirmative side of the controversy and is bound to succeed on the strength of his own title, and in deciding the question of title we are to determine whether the patents which the State issued to H. J. Leovy, in 1893, reflect a title which is superior and paramount to the patent which the State issued to the plaintiff in 1890, to the extent that they conflict.

"This controversy is not so much with regard to the character or strength of the respective parties as it is with regard to the area or domain which the State actually and really conveyed to the plaintiff; for it is quite true and cannot be denied that the State was wholly without power to convey to the defendant H. J. Leovy any land in 1893 which she had previously sold to the plaintiff in 1890, without trenching upon the issues of error or fraud which were excluded from consideration. In other words, we are to determine from the evidence before us whether the plaintiff's patent covers and includes all the land in township twentytwo south, of range thirty-one east, in the southeastern land district west of the Mississippi River; for if it does, in fact, the patents which were subsequently issued to the defendant H. J. Leovy do not reflect a paramount title thereto."

The court then gave elaborate consideration to the views of the district court, expressing its dissent from them; also at great length reviewed the evidence and the land laws of the State and the descriptions of the respective patents, and concluded as follows:

"As, in our opinion, this controversy is quite similar to the one presented in Buras v. O'Brien - that is to say, one for the determination of the area of sea marsh which is covered by a state patent- our conclusion is that the plaintiff's patent 4058 does not extend to nor include the land which is called for by the patents which were subsequently issued by

Opinion of the Court.

the State to the defendant H. J. Leovy, and that consequently there is no conflict between them.

"Under the jurisprudence and statutes of this State governing the sale and entry of swamp and marsh lands, we think it our duty to consider all the provisions and recitals of patents issued therefor and to give same effect according to their tenor; and thus considering the patent of the plaintiff, we regard it as evidencing a sale by measure and not by estimation of quantity. We consider the words thereof 'containing 3840 acres' as limiting the words preceding, all the unsurveyed marsh west of lots fronting on the right bank of the Mississippi,' and that the reference made therein to the official plat of the survey of said lands in the state land office' was intended to verify and confirm the statement as to the character and extent of the area of land which was actually conveyed to the patentee.

"We are of the opinion that inasmuch as the plaintiff's patent 4058 calls for all the unsurveyed marsh west of lots fronting on the Mississippi, except section sixteen in township twenty-two,' he is not entitled to survey, select and appropriate all the dry land or swamp land above overflow in said township in order to make out the quantity of 3840 acres' he purchased.

"We are of opinion that inasmuch as the patent conveys 'all the, unsurveyed marsh west of the lots fronting on the Mississippi,' those lots must be taken as the initial point from which the area is to be computed, same being the only fixed and definite boundary mentioned in the patent.

"Thus considering the law and the evidence, we are of opinion that there should be judgment in favor of the defendant H. J. Leovy maintaining his patents as reflecting the paramount title to the lands which are therein described, and perpetuating his writ of injunction."

It is manifest no Federal question was passed on by the court. Its decision was put upon an independent ground involving no Federal question and of itself sufficient to support the judgment. It merely determined the extent of the grant to the State, and, interpreting the contending patents

Counsel for Plaintiff in Error.

as conveyances, decided that the lands described in that of plaintiff did not embrace the lands in controversy, and that the lands described in that of defendant did embrace them. This was but the interpretation of written instruments, and if it were even apparent to us to be wrong, which we cannot say, we should nevertheless be without power to review it.

In Remington Paper Co. v. Watson, 173 U. S. 443, we had occasion to repeat and affirm the rule announced in Eustis v. Bolles, 150 U. S. 361, 370, “that when we find it unnecessary to decide any Federal question, and when the state court has based its decision on a local or state question, our logical course is to dismiss the writ of error.”

The writ of error is dismissed.

ATCHISON, TOPEKA AND SANTA FÉ RAILROAD COMPANY v. MATTHEWS.

ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.

No. 147. Submitted January 18, 1899. - Decided April 17, 1899.

The provision in § 2 of c. 155 of the acts of Kansas of 1885, entitled "An act relating to the liability of railroads for damages by fire," that, "in all actions commenced under this act, if the plaintiff shall recover, there shall be allowed him by the court a reasonable attorney's fee, which shall become a part of the judgment," must, for reasons stated in the opinion of the court, be sustained as legislation authorized by the Constitution of the United States.

THE statement of the case will be found in the opinion of the court.

Mr. Robert Dunlap and Mr. E. D. Kenna, for plaintiff in error, submitted on their brief.

Opinion of the Court.

MR. JUSTICE BREWER delivered the opinion of the court.

In 1885 the legislature of Kansas passed the following act: "An act relating to the liability of railroads for damages by fire.

"SECTION 1. Be it enacted by the legislature of the State of Kansas: That in all actions against any railway company organized or doing business in this State, for damages by fire, caused by the operating of said railroad, it shall be only necessary for the plaintiff in said action to establish the fact that said fire complained of was caused by the operating of said railroad, and the amount of his damages, (which proof shall be prima facie evidence of negligence on the part of said railroad): Provided, That in estimating the damages under this act, the contributory negligence of the plaintiff shall be taken into consideration.

"SEC. 2. In all actions commenced under this act, if the plaintiff shall recover, there shall be allowed him by the court a reasonable attorney's fee, which shall become a part of the judgment.". (Sess. Laws 1885, c. 155, 258.)

Under it an action was brought in the district court of Cloud County which resulted in a judgment against the railroad company, plaintiff in error, for $2094 damages and $225 attorney's fees. This judgment having been affirmed by the Supreme Court of the State, the company brought the case here on error.

All questions of fact are settled by the decision of the state courts, Hedrick v. Atchison, Topeka &c. Railroad, 167 U. S. 673, 677, and cases cited in the opinion, and the single matter for our consideration is the constitutionality of this statute. It is contended that it is in conflict with the Fourteenth Amendment to the Federal Constitution, and this contention was distinctly ruled upon by the Supreme Court of the State adversely to the railroad company. In support of this contention great reliance is placed upon Gulf, Colorado & Santa Fé Railway v. Ellis, 165 U. S. 150. In that case a statute of Texas allowing an attorney's fee to the plaintiffs in actions against railroad corporations on claims; not exceeding in

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