8 unum mourn,.
a private nuisance. No right was asserted under the constitution or
laws of the United States, and nothing was stated from which it
could in any manner be inferred that the defendants sought to justify
the acts complained of by reason of any such authority. It resulted,
therefore, that the validity of the judgment of the circuit court re-
manding the cause, and brought into question by the writ of error,
depended upon the suihciency of the facts set forth in the petition
for removal. "For the purposes of the transfer of a cause," said the
the court, (page 202,) "the petition for removal, which the statute
requires, performs the office of pleading. Upon its statements, in con-
nection with the other parts of t-he record, the courts must act in de-
claring the law upon the question it presents. It should, therefore,
set forth the essential facts, not otherwise appearing in the case, which
the law has made conditions precedent to the change of jurisdiction.
If it fails in this, it is defective in substance, and must be treated ac-
cordingly." `
In that case the judgment of the circuit court remanding the cause
was affirmed on account of the insufficiency of the petition for re-
moval, notwithstanding in that the defendants set forth their own-
ership, by title derived under the laws of the United States, of cer-
tain valuable mines that could be worked only by the hydraulic
process, which necessity required the use of the channels of the river
and its tributaries in the manner complained of, and claimed the
right to this use under the provisions of certain specified acts of con-
gress; the petition alleging that the action arose under, and that its
determination would necessary involve and require the construction
of, the laws of the United States specifically enumerated, as well as
the pre-emption laws, because it stated no facts to show the right
claimed, or to enable the court to see whether it necessarily depended
upon the construction ofthe statutes. “Oertainly," said the court,
(page 203,) "an answer or plea, containing only the statements of the
petition, would not be sufficient for the presentation of a defense to
the action under the provisions of the statutes relied upon. The im-
munities of the statutes are, in effect, conclusions of law from the ex-
istence of particular facts. Protection is not afforded to all under all
circumstances. In pleading the statute, therefore, the facts must be
stated which call it into operation. The averment that it is in opera-
ation will not be enough, for that is the precise question the court is
called upon to determine. * * * A cause cannot be removed
from a state court simply because, in the progress of the litigation,
it may become necessary to give a construction to the constitution or
laws of the United States; the decision of the case must depend upon
» that construction." Tried by these tests, there was no sufficient
ground for the removal of the present action, and the motion to re-
vmand must be granted. I
As already shown, the pleadings do not show a case, arising under
the constitution or laws of the United States, and the petition for re-