MILLER v. wyrrmn. 53
In the latter case Mr. Justice Wxrrn says: T
"Nothing was stated (in the complaint) from which it could in any manner
be inferred that the defendants sought to justify the acts complained of by any
such authority, (the constitution or laws of the United States.) "
The petition for removal was the only pleading on the part of the
company, and that stated its ownership, derived from the United States,
of certain mining land that only could be worked by the hydraulic
process, which required the use of Bear river and its tributaries, and
asserted that it acquired the right to so use the river under certain
specified acts of congress, the construction of which were necessarily
involved in the determination of the case, without, as the chief justice
says, stating any facts to show the right it claims, or "to enable the
court to see whether it necessarily depends upon the construction of
the statutes;" to wl1ich he adds:
"The immunities of the statutes are, in effect, conclusions of law from the
existence of particular facts. Protection is not afforded to all under all cir-
cumstances. In pleading the statute, therefore, the facts must be stated which
call it into operation. The averment that it is in operation will not be enough;
for that is the precise question the court is called upon to determine."
The former case was a writ of error to a state court under section
25 of the old judiciary act, and the question was whether a right
claimed by the plaintiff in error, and which was decided against him
in the court below, was derived from "an authority exercised under
the United States," to—wit, an order of the United States district
court. But it plainly appearing to the court that the order in ques-
tion gave no such right, the writ was summarily dismissed, the chief
justice saying, as he did so: "Something more than a bare assertion
of such authority seems essential to the jurisdiction of this court."
But in this case there is a distinct assertion in the complaint that
the lands in question are swamp and overflowed, and that they were
' so on March 12, 1860, and that as such were still within the purview
and operation of that act in November, 1871, and liable to be selected
by the state as the grantee thereof, and that they were so selected,
and passed as such from the latter tothe plaintiffs by purchase in
1872, all of which statements are denied and controverted by the an-
swer of the defendant. Admitting all this, counsel for the plaintiffs
contends that "the matter in dispnte" is the right of the defendant to
maintain this dam as against the plaintiffs, and that such dispute
does not arise under an act of congress, and its determination only
involves the question of whether or not the dam is a nuisance.
Section’2 of the act of 1875 (18 St. 470) gives the right to remove
from a state court to this court any suit "arising under the constitu-
tion or laws of the United States, " where "the matter in dispute" ex-
ceeds the sum or value of $500. "The matter in dispute" may be real
or personal property, or damages for an injury to either, or to the per-
son; but in any case it must exceed $500 in amount or value. This is
the money element of the jurisdiction ; and the other is, that the suit in