12 monash nmronrnrz.
contested question of law arising under the constitution or laws of
the United States in the case. The only question in the case seems
to be this: Conceding that both parties had grants of tracts of land,
·that each grant was confirmed, that a patent issued for each rancho
as confirmed`, and that the tract in controversy in this case is cov-
ered by grants and patents, which party acquired the title to the tract
in controversy? And that depends upon which in fact acquired the
oldest effective grant. That question is to be determined by an ex-
amination of the proceedings of the Spanish and Mexican govern-
ments in making the inchoate grants to the respective parties, and
upon the subsequent acts of the parties and Mexican government
under the grants, and before the cession of California to the United
States; or upon the facts and laws of Mexico in force in California
before its acquisition by the United States. It should afnrmatively
appear that there will arise some contested point of law depending
upon the constitution or laws of the United States, and what the
question is. Nothing of the kind affirmatively appears in the petition
or records. It appears to me that this case falls within the rule
adopted in Tmjiton v. Nougnes, 4 Sawy. 178, substantially affirmed
by the United States supreme court in Gold Washing Oo. v. Keyes,
.96 U. S. 199, and within the case of Rcmic v. Casanova, 91 U. S.
379; also McStay v. Friedman, 92 U. S. 723, 724, and San Francisco v.
Scott, 111 U. S. 768; S. C. 4 Sup. Ct. Rep. 688.
The cases cited by defendants do not appear to me to conflict with
the doctrine of those cases. In Hills v. Hornton, 4 Sawy. 198, the
whole cseturned upon a disputed construction of the two patents.
There was clearly a contested question of law arising under the con-
stitution and laws of the United States. The other cases do not ap- A
pear to determine or discuss any question arising in this case. It is
not enough that a question may possibly arise under the constitution
and laws of the United States. It should be made to appear from
the facts stated that such a question will arise, and what the question
- is, and how it will arise. Should one arise in the course of the trial
in the state court material to the correct decision of the case, the rul-
ing of the state court may still be reviewed by the United States su-
preme court on writ of error in favor of the party against whom the
ruling is made.
Upon the views expressed, the case must be remanded to the state
l court; and it is so ordered.