text:
    Robert BOWMAN, Plaintiff-Appellant, v. CHRYSLER CREDIT CORPORATION, Defendant-Appellee.
    No. 72-3683.
    United States Court of Appeals, Fifth Circuit.
    July 10, 1974.
    Darryl A. Hurt, Lucedale, Miss., for plaintiff-appellant.
    A. M. Murphy, Lucedale, Miss., for defendant-appellee.
    Before COLEMAN, CLARK and GEE, Circuit Judges.
   PER CURIAM:

This case began as a suit for damages in the state court and was removed to the United States District Court on diversity of citizenship and jurisdictional amount. On a trial to the Court without a jury judgment was awarded the defendant. We affirm.

The basis for the suit was that Chrysler Credit Corporation, from a public street, had peaceably repossessed an automobile, unlocked and with the ignition key in it, belonging to the plaintiff-appellant, Robert Bowman. The automobile was the subject of a conditional sales contract, assigned to Chrysler, and was in default for failure to comply with certain insurance provisions of the contract. The contract provided that upon default by Bowman the owner of the contract could repossess the automobile. The taking, with' no state participation, did not violate the due process clause of the Fourteenth Amendment, James v. Pinnix [5 Cir., 1974], 495 F.2d 206.

Neither did it violate Mississippi law, Martin v. Cook, 237 Miss. 267, 114 So.2d 669 (1959).

Consequently, the judgment for Chrysler was correct.

As an additional ground of recovery, Bowman alleged that a sum of money left in the glove compartment of the automobile had been taken by those who seized the automobile. The District Court found this contention to be incredible, a finding which, on the evidence, is not clearly erroneous.

The judgment of the District Court is

Affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Lorene W. BYRD, Appellant, v. FIELDCREST MILLS, INC., et al., Appellees.
    No. 74-1015.
    United States Court of Appeals, Fourth Circuit.
    Argued April 3, 1974.
    Decided May 20, 1974.
    Norman B. Smith, Greensboro, N. C. (Smith, Carrington, Patterson, Follín & Curtis, Greensboro, N. C., on brief), for appellant.
    Bynum M. Hunter, Greensboro, N. C. (Smith, Moore, Smith, Schell & Hunter, Greensboro, N. C., on brief), for appellees.
    Before RUSSELL, FIELD and WIDENER, Circuit Judges.
   PER CURIAM:

Alleging that the defendants’ negligent violation of the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., was the proximate cause of her intestate’s death, the plaintiff instituted this action for damages in the district court. Since, concededly, plaintiff’s intestate died as the result of injuries sustained in an accident arising out of and in the course of his employment with the defendant, Fieldcrest Mills, Inc., which was covered under the North Carolina Workmen’s Compensation Act, the district court concluded that 29 U.S.C. § 653(b)(4) precluded a private remedy and dismissed the action under Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief could be granted.

Upon careful consideration of the record, briefs and oral arguments we agree with this conclusion of the district court and affirm the judgment of dismissal.

Affirmed.

      . “Nothing in this chapter shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.” 29 U.S.C. § 653 (b)(4).

      . Cf. Skidmore v. Travelers Insurance Company, 356 F.Supp. 670 (E.D.La.1973), aff’d per curiam, 483 F.2d 67 (5 Cir. 1973).


author: PELL, Circuit Judge.

text:
    ST. MARY’S HOSPITAL OF EAST ST. LOUIS, INC., Plaintiff-Counter-defendant-Appellee, v. Richard B. OGILVIE, Governor of the State of Illinois, et al., Defendants-Counterplaintiffs-Appellants.
    No. 72-1827.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 10, 1973.
    Decided May 23, 1974.

      William J. Scott, Atty. Gen., Robert J. O’Rourke, Asst. Atty. Gen., Chicago, 111., for appellants.
    Timothy C. Toomey, Chicago, 111., for appellee.
    Before CUMMINGS, PELL and STEVENS, Circuit Judges.
   PELL, Circuit Judge.

This is an appeal from the district court’s granting of a preliminary injunction ordering the state to pay Medicaid reimbursements to St. Mary’s Hospital in an amount representing a 9.7 percent increase over the prior reimbursement rate.

In Illinois, Medicaid is paid by the state to the hospitals on a cost-reimbursement method. St. Mary’s Hospital of East St. Louis, Illinois, filed suit under Title XIX of the Social Security Act seeking declaratory and injunctive relief, to enjoin state implementation of new procedures for Medicaid reimbursements. The state filed a counterclaim to recover approximately $927,000 in Medicaid overcharges paid to St. Mary’s Hospital dating back to 1966.

On February 16, 1972, the district court issued a preliminary injunction ordering the state to reimburse the hospital for Medicaid services at the 1970 rate of $55.24 per patient day. On July 28, 1972, pursuant to a motion by the hospital, the district court amended the preliminary injunction to require reimbursements at the rate of $60.65 per patient day, retroactive to November 1, 1971. This was a 9.7 percent increase over the prior reimbursement rate. The amended injunction was issued without a requirement that St. Mary’s post security for the overcharges alleged in the counterclaim. The district court denied the state’s motion to vacate, alter, or amend the order of July 28,1972.

The state raises two issues on appeal: (1) the applicability of the Economic Stabilization regulations to the Medicaid reimbursements in question; (2) the necessity of requiring, under Rule 65(c), Fed.R.Civ.P., a security deposit for the overcharges as a condition of granting the preliminary injunction.

I. JURISDICTION OF THIS COURT.

As a preliminary matter, it must be determined whether this court has jurisdiction over the appeal or whether the appeal properly should have been made to the Temporary Emergency Court of Appeals (T.E.C.A.). The jurisdiction of T.E.C.A. is created by § 211(b)(2) of the Economic Stabilization Act of 1970, 12 U.S.C. § 1904, which provides:

“Except as otherwise provided in this section, the Temporary Emergency Court of Appeals shall have exclusive jurisdiction of all appeals from the district courts of the United States in cases and controversies arising under this title or under regulations or orders issued thereunder.” (Emphasis added.)

We interpret the phrase “arising under” as requiring that the allegations of the complaint, not merely the answer, call for the application of the Economic Stabilization Act to the suit. In the absence of such triggering allegations in the complaint, the court of appeals has jurisdiction over the appeal.

This interpretation of § 211(b)(2) is consistent with interpretations of the same phrase, “arising under,” in the context of federal-question jurisdiction in the federal courts. In the latter situation, it has long been held that to invoke the jurisdiction of the federal courts on the basis of a claim “arising under” the Constitution or laws of the United States [28 U.S.C. § 1331], the complaint, and not the answer, must be based on those laws or the Constitution. Louisville & Nashville R. R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 672, 70 S.Ct. 876, 94 L.Ed. 1194 (1950).

Moreover, T.E.C.A. itself recently noted in United States v. Cooper, 482 F.2d 1393, 1398 (Em.App. 1973), that “a loose construction [of § 211(b)(2)] is unacceptable in light of the traditional rule that courts of special jurisdiction should strictly construe their statutory grants of jurisdiction.” See also Associated Gen. Contractors of America, Inc. v. Laborers Int’l, Local 612, 489 F.2d 749 (Em.App. 1973).

In the present case, the allegations of St. Mary’s complaint did not create issues calling for the application of the Economic Stabilization Act. The applicability of the Act was first raised by the state after the preliminary injunction had been issued. In this situation, the case did not “arise under” the Act and therefore this court has jurisdiction over the appeal.

II. APPLICATION OF THE ECONOMIC STABILIZATION REGULATIONS.

Title XIX of the Social Security Act establishes the Medicaid program. Specifically, 42 U.S.C. § 1396a(a)(13) (D) provides “for payment of the reasonable cost of inpatient hospital services provided under the plan.” The Economic Stabilization Act authorizes the President to issue orders and regulations to stabilize prices, rents, wages, and salaries. Medicaid reimbursements were specifically frozen under Economic Stabilization regulation No. 305:

“[P]ayment schedules established during the base period for medical services provided under the Medicaid program are considered to be prices and are frozen. In effect, then, the Medicaid reimbursements (per unit of service) based on these payment schedules are frozen.” Economic Stabilization Cir. No. 102

The Price Commission issued a regulation, effective December 29, 1971, regarding increases in prices of institutional health:

“[N]o institutional provider of health services may charge a price in excess of the base price, if the effect of the increase ... is to—
-X- * -X- * * *
(2) Increase its aggregate annual revenues . . . at an annualized rate of 6 percent over the amount of its aggregate annual revenues for its last fiscal year, unless the provider has received an exception from the Price Commission . . . .”6 C.F.R. § 300.18 (1973).

The district court offered no reason for its finding that the above regulation is inapplicable to its amended order which resulted in a 9.7 percent increase in the Medicaid reimbursement rate. St. Mary’s Hospital, in urging that we find the Economic Stabilization regulations inapplicable, has advanced essentially two arguments.

First, the hospital argues that the Economic Stabilization Act and accompanying Executive Orders did not expressly authorize the state welfare agencies to deviate from the provisions of Title XIX of the Social Security Act which requires full reimbursement for Medicaid costs. Application of the Economic Stabilization regulations to Medicaid reimbursements, according to St. Mary’s would violate Title XIX.

We find this argument unpersuasive. In its recent decision, American Nursing Home Ass’n v. Cost of Living Council, 497 F.2d 909 (Em.App. 1974), T.E.C.A. held that there is no conflict between § 300.18, as it applies to nursing care homes, and Titles XVIII and XIX of the Social Security Act. We similarly find no conflict between this Economic Stabilization regulation, as applied to a hospital, and the Social Security Act. Under the Economic Stabilization regulations, a hospital could obtain full reimbursement for any Medicaid costs. The regulations only required that a certain procedure be followed when the aggregate annual revenue increased by a designated percentage. Short-term economic controls do not necessarily conflict with more permanent, long-term legislative schemes “simply because they may impinge or overlap the same sectors of the economy.” Id. at 915. Moreover, the fact that Congress, in the Economic Stabilization Act, did not expressly authorize a deviation from Title XIX is irrelevant. “If there is no evidence [of either congressional awareness or unawareness], the presumption must be in favor of congressional awareness.” Id. at 916. .

The second argument presented by the hospital for not applying the Economic Stabilization regulations to it is that St. Mary’s Medicaid reimbursements do not fall within the terms of § 300.18(c)(2). The hospital’s argument is essentially two-pronged: (a) the regulation refers to “price” increases whereas what St. Mary’s is seeking is an increase in reimbursement rates, which are based on costs; (b) even if reimbursement payments are construed as “prices,” the price increase is regulated only if there is a resulting 6 percent increase in aggregate annual revenues, and the latter increase has not been shown.

As to the first prong of this argument, “price” is defined at 6 C.F.R. § 300.5 (1973) as “any compensation for the sale or lease of any property or services and includes rent, commissions, dues, fees, margins, rates, charges, tariffs, fares, or premiums, regardless of form.” In the commentary on the regulations, “price” is further explained as including “a direct price paid as well as a price reimbursed to a provider by a third party payer on a cost basis.” 36 Fed.Reg. 25384 (1971). In the present case, the reimbursements are the compensation which the state pays in exchange for St. Mary’s services with respeet to Medicaid. The reimbursement rate is, thus, the “price” paid by the state. The “price” in this situation simply háppens to be statutorily limited to cost.

The second prong of St. Mary’s argument regarding the wording of § 300.18 can also be disposed of by reference to the definitions given in the regulations. St. Mary’s is correct in pointing out that to be within § 300.18(c)(2), there must be a 6 percent increase in aggregate annual revenues. The revenues referred to, however, are “aggregate,” not net, so they must be computed without deducting operating costs. Thus, according to the regulation, “aggregate annual revenues” are computed by:

“(1) Taking the sum of all patient service revenues for the year concerned .
(2) Adding thereto all other operating revenues from services, sales, and activities for the fiscal year concerned
. and
(3) Subtracting from the sum of paragraphs (1) and (2) the amount of the deduction for the year concerned for charity, courtesy, and contractual discounts and allowances for bad debts.” 6 C.F.R. § 300.18(a) (1973).

In the present case, the Medicaid reimbursements would be included in St. Mary’s revenues since we have already determined that these payments represent compensation for patient service. If the district court’s order is upheld, St. Mary’s would have an increase in aggregate revenues of 9.7 percent. St. Mary’s has made no demonstration that it has sufficient “charity, courtesy, and contractual discounts and allowances for bad debts” to offset this 9.7 percent increase. St. Mary’s has only alluded to rising operational costs, which are not deducted in computing “aggregate annual revenues.”

We conclude that the Economic Stabilization regulations do apply to the 9.7 percent increase in the Medicaid reimbursement rate sought by St. Mary’s. The district court was, therefore, incorrect in ordering the state to pay reimbursements at the increased rate. Rather, St. Mary’s should have followed the administrative procedures set forth in the regulations for receiving an exception.

The need to exhaust administrative remedies is particularly strong where the subject matter involved is highly complex, as is the case here. In City of New York v. New York Telephone Co., 468 F.2d 1401 (Em.App. 1972), an action was brought by the city seeking declaratory and injunctive relief against an increase in telephone rates. In denying relief, T.E.C.A. held that the city was required to submit its complaint to the Price Commission before seeking judicial relief. The court noted:

“Judicial review is surely hindered by the failure of the litigant to give the agency an opportunity to make a factual record, exercise its discretion or apply its expertise. The Commission is confronted with difficult tasks which require considerable specialized acumen. . . . Finally, frequent deliberate skirting of the Commission may well result in an erosion of effectiveness and public confidence in the Commission which we must recall is a ‘collaborative instrumentalit[y] of justice.’ ” 468 F.2d at 1403.

See also McKart v. United States, 395 U.S. 185, 193-195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); Anderson v. Dunlop, 485 F.2d 666, 669-670 (Em.App. 1973).

III. SECURITY DEPOSIT.

The state argues that the district court erred in ordering it to pay Medicaid reimbursements without conditioning the order upon the hospital’s giving security for the overcharges alleged in the counterclaim. Since we have found the district court’s order regarding the reimbursements to be erroneous, we need not decide whether a security deposit was necessary under Rule 65(c), Fed.R.Civ.P.

Accordingly, the preliminary injunction ordering the state to pay Medicaid reimbursements at a rate 9.7 percent higher than the previous rate is reversed, the preliminary injunction is vacated, and the case remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . The method for obtaining an “exception” to the 6 percent limitation is specifically set out in Subpart 0 of 6 C.F.R. § 305 (1973). In applying for an exception, St. Mary’s could have presented information as to the particular operational costs it had encountered which justified the increased reimbursement rate. One of the central concepts of the control plan is that the program is to be kept flexible through a system of exceptions based on individual — rather than industry-wide — costs and profits. See Comment, Administration and Judicial Review of Economic Controls, 39 U.Clii.L.Rev. 566, 575-76 (1972).

      . “In interpreting the specific wording of the regulation, the Court must place great weight upon an agency’s interpretation of its own regulation.” United States v. Lieb, 462 F.2d 1161, 1166 (Em.App.1972). See also Thorpe v. Housing Authority, 393 U.S. 268, 276, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); United States v. Electrical Workers, Local 11, 475 F.2d 1204, 1209 (Em.App.1973).

      . Even though St. Mary’s presumably had patients other than those in the Medicaid category, we note (a) a substantial part of the hospital’s services were rendered to Medicaid patients and (b) there is no basis for thinking that St. Mary’s claimed cost increases would not have also been reflected in the revenues generated by non-Medicaid patients.


author: LUMBARD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellant, v. John V. O’CONNELL, and Jopat Realty Corporation, Defendants-Appellees.
    No. 523, Docket 73-2149.
    United States Court of Appeals, Second Circuit.
    Argued March 5, 1974.
    Decided May 16, 1974.

      Taggart D. Adams, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. for the Southern District of New York, and Gerald A. Rosenberg, Asst. U. S. Atty., on the brief), for plaintiff-appellant.
    Frank J. Delany, Washington, D. C., for defendants-appellees.
    Before LUMBARD, OAKES and TIMBERS, Circuit Judges.
   LUMBARD, Circuit Judge:

The issue for decision here is a question of real property law of the sort rarely coming before this court. Claiming that it was the owner of easements by implication in two pieces of property located in Peekskill, New York, the United States commenced this action for a declaratory judgment, permanent and preliminary injunctions, and damages on January 4, 1973, in the Southern District of New York. Under Rule 65(a)(2), F.R.Civ.P., the hearing on a preliminary injunction was combined with the trial on the merits, and on March 20, 1973, a bench trial was held before Judge Duffy. He ruled in favor of the defendants, John V. O’Connell and the Jopat Realty Corporation and dismissed the government’s complaint, D.C., 358 F.Supp. 925, and judgment was entered on April 30, 1973. This appeal by the United States followed. Since we find that the district court applied an erroneous rule of law, we vacate and remand.

I.

Three parcels of land are involved in this dispute. Parcel A includes two lots. The major part of Parcel A is some 5.7 acres, bounded by Sherman Avenue on the north and Welcher Avenue on the south, which are the site of the Patricia Gardens housing project. The rest of Parcel A is a parking lot 100 feet by 150 feet located on the other side of Sherman Avenue. Parcel B is a lot 60 feet by 150 feet which is immediately east of the portion of Parcel A that is north of Sherman Avenue. Parcel B is also a parking lot. Parcel C is a private roadway about 50 feet wide and 550 feet long which connects Sherman and Welch-er Avenues to the west of the project. Several apartments in the Patricia Gardens project front on this private roadway and the roadway provides access to two parking lots within the project.

All the land in these three parcels was originally owned by O’Connell or the Jopat Realty Corporation of which O’Connell is the majority shareholder. Sometime in 1958 O’Connell decided to build a housing project of duplex apartments called Patricia Gardens. In November 1958 he applied for mortgage insurance from the Federal Housing Administration (FHA) in connection with the project. In August 1959 O’Connell received a commitment for insurance from the FHA. Apparently because a then applicable FHA regulation, 24 C.F.R. § 232.17 (1959), a separate corporation, Patricia Gardens, Inc., was formed to build and operate the project. In April 1960 O’Connell transferred to Patricia Gardens, Inc. the project and the FHA commitment for 100 shares of common stock. The FHA held the preferred stock in the corporation. Sometime after this the land on which the project was to be built was conveyed to Patricia Gardens, Inc. There is no evidence in the record that Jopat, listed in the stipulation of facts as being the prior owner of this part of Parcel A, received any consideration for this land. of

On July 7, 1960, Patricia Gardens, Inc. entered into a mortgage agreement with the County Trust Co. of Tarrytown, New York. The mortgage covered the land transferred to Patricia Gardens, Inc., and required it to follow all municipal ordinances in its use of the property. In January 1961 the directors of Patricia Gardens, Inc., for reasons which are unclear, authorized the company to acquire that part of Parcel A that was north of Sherman Avenue for parking space and to place it under the mortgage. From the record it does not appear whether Patricia Gardens, Inc., gave any consideration for this land nor does it appear that Jopat or O’Connell received any. On February 7, 1961, a spreader agreement was executed so that all of Parcel A became subject to the mortgage.

The City of Peekskill’s zoning ordinance required that such projects be submitted to its Planning Commission for approval prior to construction. Under the ordinance in effect at the time the site plan for the project was approved by the Planning Commission, October 5, 1960, there had to be 1.5 parking spaces for every apartment, or 150 in all. The ordinance also required that the spaces be within 500 feet walking distance of the apartments and that the spaces be in the same ownership as the apartments and subject to a deed restriction, filed with the county clerk, binding the owner, his heirs and assigns to continue to maintain the required number of spaces throughout the existence of the project or until alternative spaces were provided.

Despite these provisions, the plan as approved provided for two lots within the project holding 46 automobiles, a lot on the north side of Sherman Avenue encompassing part of Parcel A and all of Parcel B holding 56 automobiles and spaces on the roadway that is Parcel C holding 50 automobiles for a total of 152 spaces. Parcels B and C were and are owned by either Jopat or O’Connell. The stipulation of facts state that Parcel B was owned by Jopat and Parcel C by either Jopat or O’Connell. O’Connell at trial, however, testified that he owned Parcel C and that either he or Jopat owned Parcel B and that there was not much difference in who owned it.

Even at this late date it is not clear why Patricia Gardens, Inc. was not given title to all the land used for access to parts of the project and parking spaces used in connection with the project. It is clear that local and federal officials did not complain about this severance of ownership. Local officials in letters did comment about the number of spaces but never the ownership. An employee of the planning commission said that no effort was made to see if the restrictions on land use necessary to ensure the continued availability of parking had been filed with the county clerk. No indication is given why FHA officials, who required that the land be surveyed, did not comment on this matter.

Construction of the project literally had rocky beginnings as outcropping of rocks forced modification of plans, caused delay, and created financial difficulties. These difficulties continued after Peekskill authorities issued certificates of occupancy and the FHA endorsed the mortgage for insurance in August 1962. During the period of 1963 to 1965 the mortgage note went into default. The mortgage had been assigned to the State of New York which in turn assigned it to the FHA under the insurance agreement. In 1967 the FHA foreclosed and in 1968 the United States acquired title to Parcel A under a marshal’s deed as the highest bidder at a foreclosure sale.

From the time tenants began occupying the buildings they used Parcel B for parking and Parcel C for access and parking. A brochure advertising the project showed Parcels B and C as integral parts of the project. There is no evidence that Patricia Gardens, Inc. ever paid O’Connell or Jopat any fee for the use of their land. Certainly the United States after it became owner never paid any fee for the use of the land. The fact that the United States did not own Parcels B and C apparently surfaced early in 1971. A letter was sent by an official of the Department of Housing and Urban Development to O’Connell, saying that a survey had disclosed that O’Connell or Jopat owned the land and asking if the land was for sale. O’Connell said that the land was available and said that its value was $50,000.00. In a later letter O’Connell asked if he could acquire Parcel A by private negotiation. He was informed that this was not possible. Negotiations on purchase of Parcels B and C evidently fell through, and in November 1972, O’Connell erected steel posts which prevented access to Parcel B by tenants of Patricia Gardens and threatened to do the same with Parcel C. This action followed.

II.

The parties have assumed, and we agree, that state law, here New York’s, governs this action. While we have held that federal law governs FHA foreclosure proceedings, United States v. Walker Park Realty, Inc., 383 F.2d 732 (2d Cir. 1967); United States v. Merrick Sponsor Corp., 421 F.2d 1076 (2d Cir. 1970), we see no reason for a rule of nation-wide uniformity in determining precisely what property the buyer at the foreclosure sale had purchased. This case is analogous to United States v. Certain Property Located in Borough of Manhattan, 306 F.2d' 439 (2d Cir. 1962), in which we held that state law governs the determination of what property the United States took when it took all real property in an area by condemnation. There is no suggestion here as there was in United States v. Little Lake Misere Land Co., 412 U.S. 580, 93 S.Ct. 2389, 37 L.Ed.2d 187 (1973), that state law is hostile to the federal scheme. We, therefore, hold that New York law governs here. See Coos County Sheep Co. v. United States, 331 F.2d 456 (9th Cir. 1964). Cf. United States v. Doyle, 468 F.2d 633 (10th Cir. 1972); United States v. 1,078.27 Acres of Land, 446 F.2d 1030 (5th Cir. 1971), cert. denied sub nom. Galveston City Co. v. United States, 405 U.S. 936, 92 S.Ct. 945, 30 L.Ed.2d 811 (1972); United States v. Williams, 441 F.2d 637 (5th Cir. 1971). See generally Friendly, In Praise of Erie — And of the New Federal Common Law, 37 N.Y.U.L. Rev. 383 (1964). Since, as will be seen below, New York courts have not yet passed upon the questions presented by this case, we must exercise our “prophetic judgment” in determining what New York courts would do if faced with the problem. Cooper v. American Airlines, Inc., 149 F.2d 355, 359 (2d Cir. 1945).

III.

As the Restatement of Property notes, creation of easements by implication is an attempt to infer the intention of the parties to a conveyance of land and the “inference drawn represents an attempt to ascribe an intention to parties who had not thought or had not bothered to put the intention into words, or perhaps more often, to parties who actually had formed no intention conscious to themselves.” Restatement of Property, § 476, comment a, at 2978 (1944). The district court relied upon the four elements of implied easements which were first stated by Justice Bergan in Jacobson v. Luzon Lumber Co., 192 Misc. 183, 79 N.Y.S.2d 147 (Sullivan County Sup.Ct.1948), aff’d per curiam, 276 App.Div. 787, 92 N.Y.S.2d 537 (3d Dept.1949), aff’d mem., 300 N.Y. 697, 91 N.E.2d 724 (1950), and since repeated in other cases, e. g., McQuinn v. Tantalo, 41 A.D.2d 575, 339 N.Y.S.2d 541 (3d Dept.1973). These elements are: (1) The relevant parcels of land must have once been in unitary ownership; (2) A use must have been established in which one part or parcel of the land was subordinated to another; (3) The use must be plainly and physically apparent by reasonable inspection; and (4) The use must affect the value of the estate benefitted and it must be necessary to the reasonable use of such estate.

If this list of elements is not exhaustive, as is suggested by Chief Judge Cardozo’s comment in In re City of New York (Northern Blvd.), 258 N.Y. 136, 147, 178 N.E. 321 (1932), that the question of easement implication is one of intention to be answered in light of all of the circumstances, then two more factors should be considered here. See also Restatement of Property § 476, comment b, at 2979 (1944). The first is that the conveyance in 1968 was by marshal’s deed and was involuntary. The Restatement of Property says that in such cases it is more difficult to draw an inference that the parties intended to create an easement. Restatement of Property, § 474, comment b, at 2973-74 (1944). In our opinion this factor is more than balanced by a second factor, the requirement in the Peekskill zoning ordinance which provided that the ownership of the parking spaces be the same as the ownership of the housing project. The parties here either knew or should have known of this provision. It is reasonable to infer that the parties here intended that the owner of Parcel A would have easements in Parcels B and C since without such easements the project would not be in compliance with that provision of the Peekskill ordinance. Certainly there is no evidence in the record to suggest that anyone deliberately intended to violate the ordinance. The evidence only suggests that no authority in Peekskill tried to enforce the ordinance.

As far as the four elements listed in Jacobson are concerned, the district court found that the latter two elements of the test had heen met. 358 F.Supp. at 927. Presumably the district court also found that the second element was met since clearly there had been a use established which subordinated Parcels B and C to Parcel A. The decisive factor in the district court’s determination was its finding that the government had failed to show that the parcels had been in unitary ownership at the time the use arose. 358 F.Supp. at 927.

Easement by implication may arise when land under one ownership is divided into separately owned parts. Restatement of Property § 474 (1944). We assume, as did the district court, that the relevant conveyance for the purpose of determining whether there is an easement by implication here is the sale of Parcel A by foreclosure in 1968 The issue here presented is whether there can be sufficient unity of ownership for purposes of implying an easement when the use arises after ownership of the relevant parcels has been split between various corporations all dominated by the same person or entity.

Apparently the only case that has passed upon the issue before us is Cosmopolitan National Bank v. Chicago Title & Trust Co., 7 Ill.2d 471, 131 N.E.2d 4 (1955). There a driveway was built between two buildings partly on the land belonging to each building’s owner. At the time the driveway was built, the buildings were owned by two separate corporations in which the same two men owned all the stock. The Illinois Supreme Court held that each building’s owner has a reciprocal easement in the driveway. The court said that at the time the use arose there was sufficient common ownership to indicate an ability to arrange and adapt the property in a manner sufficient to establish an easement. .

No New York case has reached a result contrary to Cosmopolitan National Bank. Farley v. Howard, 60 App.Div. 193, 70 N.Y.S. 51 (1st Dept.1901), aff’d mem., 172 N.Y. 628, 65 N.E. 1116 (1902), which defendants rely upon, is not on point. Howard owned all of one lot and a one-half interest as tenant in common in an adjacent lot. He built a house upon the lot he owned whose porch encroached on the lot he owned in common. The two lots were later sold to third parties and the owner of the lot encroached upon brought suit. The court said that there could be no easement by implication in the encroached-upon lot because there was no unity of ownership at the time the use arose. As tenant in common Howard could not do as he pleased in subordinating the one lot to the lot he owned in full. See also Garvin v. State, 116 Misc. 408, 190 N.Y.S. 143 (Ct.Cl. 1921). The problem here is, of course, not one of only 50% ownership in one parcel, but O’Connell’s apparently complete dominance of the corporations that owned the parcels of land here in question.

Nor is Times Square Properties, Inc. v. Alhabb Realty Corp., 117 N.Y.S.2d 901 (New York County Sup.Ct.1952), aff’d mem., 282 App.Div. 1024, 126 N.Y.S.2d 887 (1st Dept.1953) on point. In that case two parcels of land had once had a common owner. After ownership had been severed, a tenant of the two parcels, as permitted by his leases, erected a concrete platform that encroached on one parcel. Later, when the need for the platform had ended, a dispute arose between the owners of the parcels and the claim was made that there was an easement on the encroached-upon parcel. Although the matter was not relevant to its decision, the trial court noted that there had been no unity of ownership during the period of common ownership since the pieces of land had always been treated as separate properties. Although it was later cited by a District of Columbia case in dicta as passing upon the issue before us, Westminster Investing Corp. v. Kass, 266 F.Supp. 597, 599 (D. D.C.1967), it is clear that Times Square Properties did not.

In addition to noting that Cosmopolitan National Bank was not a New York decision, the district court distinguished it on the ground that here the FHA had required the separate incorporation of Patricia Gardens, Inc. of which it now complains. We find this distinction unpersuasive. While the FHA may have required that the housing project be separately incorporated, it did not require that the ownership of required parking spaces be in a different corporate entity from the housing project itself. At the most the FHA only acquiesced in this separate ownership. There is certainly no reason to conclude that the FHA is somehow estopped to argue that there was sufficient unity of ownership in Parcels A, B and C so that easements by implication were created in 1968. See Loftus v. Mason, 139 F.Supp. 207 (E.D.Va.1956), aff’d, 240 F.2d 428 (4th Cir.), cert. denied, 353 U.S. 949, 77 S.Ct. 860, 1 L.Ed.2d 858 (1957).

Following Cosmopolitan National Bank and extrapolating certain statements made in Times Square Properties and Farley, we conclude that the New York courts would say there is sufficient unity of interest among various pieces of land owned by different corporations if the corporations are owned and controlled by one or two shareholders in such a manner that they can do with all of the pieces of land as they please and if the pieces of land are not treated as being separately owned. Factors important in determining whether this test is met here would include whether Patricia Gardens, Inc., ever paid any rental to O’Connell or Jopat for its use of Parcels B and C; whether any payment went to Jopat when Parcel A was conveyed from it to Patricia Gardens, Inc.; and what role minority shareholders, if there were any, played in the management of Jopat and Patricia Gardens, Inc.

Since the district court did not make any findings of fact necessary to reach a conclusion on the point, the case must be remanded. As the record on many of these points is scant or nonexistent, the district court may have to take additional evidence. Girard Trust Co. v. Windt, 178 F.2d 359 (2d Cir. 1949); C. Wright & A. Miller, Federal Practice and Procedure § 2577, at 699 (1971). The court should also consider the arguments that the government has raised for the first time upon appeal and upon which we do not pass. Of course, the United States has the burden of proving all facts necessary to support its claim of an implied easement. Tarolli v. Westvale Genesee, Inc., 6 N.Y.2d 32, 187 N.Y.S.2d 762, 159 N.E.2d 558 (1959).

IV.

It must be recognized that the district court in part rested its decision upon the well-known reluctance of the New York courts to “pierce the corporate veil.” See, e. g., Walkovszky v. Carlton, 18 N.Y.2d 414, 276 N.Y.S.2d 585, 223 N.E.2d 6 (1966); Bartle v. Home Owners Cooperative Inc., 309 N.Y. 103, 127 N.E.2d 832 (1955); International Aircraft Trading Co. v. Manufacturers Trust Co., 297 N.Y. 285, 79 N.E.2d 249 (1948); Berkey v. Third Avenue Ry. Co., 244 N.Y. 84, 155 N.E. 58 (1926). Those cases arose in the context of a plaintiff attempting to impose tort or contractural liability upon a shareholder for acts done by the corporation in its course of business. One purpose of incorporation is, of course, to limit shareholder liability. Our rule would impose liability upon Jopat and O’Connell only for what they have already done — letting their land be used by Patricia Gardens, Inc. without ever receiving any consideration. The separation of corporate and personal entities will be ignored only for the purpose of determining whether there is sufficient unity of ownership to allow implication of an easement.

Furthermore, the Court of Appeals in Walkovszky said that the shareholder will be held individually liable if he is “conducting the business in his individual capacity.” 18 N.Y.2d at 419, 276 N. Y.S.2d at 589, 223 N.E.2d at 9. If O’Connell was shifting land between his two corporations without ever giving Jopat any consideration, he is, as far as the question here at issue is concerned, doing business in his individual capacity. Cf. African Metals Corp. v. Bullowa, 288 N. Y. 78, 41 N.E.2d 466 (1942). Moreover, implying an easement, if that is the case, will enforce the Peekskill zoning ordinance and thus achieve equity. International Aircraft Trading Corp., supra, 297 N.Y. at 292-293, 79 N.E.2d 249. We, therefore, conclude that nothing in New York’s corporate law would prohibit the implication of an easement here if the conditions of our rule are met.

Vacated and remanded.

      . Appellees argue that there cannot be an implied easement here because the notice of public sale of Parcel A did not mention any implied easements in other land as they argue is required by 28 U.S.C. § 2002. We think that this failure to mention any easement at the foreclosure sale is only one fact to be considered in inferring the intention of the parties. We see no indication that the New York courts would not imply an easement in the context of a mortgage foreclosure. See Alleva v. Tornatore, 254 App.Div. 525, 5 N.Y.S.2d 479 (1st Dept.1938), aff’d mem., 279 N.Y. 770, 18 N.Ed.2d 860 (1939). The purpose of the public notice requirement of § 2002 is to inform the public of the nature of property to be sold so that it can be identified in the exercise of ordinary diligence. The description need not be correct in minute detail. See Newman v. Jackson, 25 U.S. (12 Wheat.) 570, 6 L.Ed. 732 (1827); Breeding Motor Freight Lines, Inc. v. Reconstruction Finance Corp., 172 F.2d 416, 422 (10th Cir. 1949).

      . However, this assumption may be questionable. It can be argued that easements by implication arose at the time of the conveyance of Parcel A to Patricia Gardens, Inc. The site plan provided for parking on Parcels B and G and it might be concluded that the parties intended that Patricia Gardens, Inc. receive easements in Parcels B and G at that time. This argument is particularly strong in the case of Parcel G which not only provided parking but also access to much of the project and to its two internal parking lots. See generally, e. g., Tarolli v. Westvale Genesee, Inc., 6 N.Y.2d 32, 187 N.Y.S.2d 762, 159 N.E.2d 558 (1959); Holloway v. Southmayd, 139 N.Y. 390, 34 N.E. 1047 (1893); Lord v. Atkins, 138 N.Y. 184, 33 N.E. 1035 (1893). Since this case must be remanded, we need not determine now whether easements arose in Parcels B and G in 1960. The district court should consider this problem further on remand.


author: RONEY, Circuit Judge:

text:
    HEIRS of Hubert BURAT (Buras), et al., Plaintiffs-Appellants, Janet Easterling and Jack Buras, Movants-Appellants, v. BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT OF the STATE OF LOUISIANA et al., Defendants-Appellees.
    No. 73-2380.
    United States Court of Appeals, Fifth Circuit.
    July 15, 1974.
    Rehearing Denied Aug. 12, 1974.
    John H. Brooks, New Orleans, La., Peter C. LaDart, Harvey, La., for Heirs of Burat.
    Charles R. Maloney, Forrest L. Bethay, Sr., New Orleans, La., for movants.
    James E. Wright, Jr., New Orleans, La., for Grove.
    Eugene G. Taggart, New Orleans, La., for La. Power & Light.
    W. S. Shirley, Jr., Lawrence K. Benson, New Orleans, La., for Standard Oil.
    Booth Kellough, New Orleans, La., William G. Duck, John E. Bailey, Houston, Tex., for Gulf Refining.
    David A. Kerstein, New Orleans, La., for Estate of W. G. Helis.

      John T. McMahon, Alvin B. Gibson, New Orleans, La., for Shell Oil.
    Richard J. McGinity, Jr., New Orleans, La., for Bd. of Levee Comm.
    Peter E. Duffy, Metairie, La., for Wildlife & Fisheries.
    Before RIVES, GEWIN and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

The heirs of Hubert Burat, a Louisiana pioneer who died in 1847, bring this action as class plaintiffs, approximately 550 in number, for declaratory judgment, money damages and injunctive relief. They seek to establish title to four sections of land, over 700 acres, in Plaquemines Parish, Louisiana, settled by their ancestor prior to 1795, land once colorfully described as “Batture du Diable,” the land of the devil. The complaint seeks money damages in the amount of $100,000,000 against the Board of Levee Commissioners of the Orleans Levee District, a state governmental agency, and nine other private and public defendants alleged to be bad faith possessors of the land. The plaintiffs request an injunction against the defendants’ continued possession. The District Court, with a good statement of reasons, dismissed the complaint for lack of federal jurisdiction of the subject matter. We affirm.

The plaintiffs’ brief tells us that the Burat settlement was some 60 miles below New Orleans on the east bank of the Mississippi River and that Burat endured flood, mosquitoes, storms, hurricanes and disease for his land. What is more, he did it all on his own. New Orleans was in those days a three-day trip by horse, and civilization’s only real representative was a seasonal priest who made it “down below” perhaps once a year to solemnize marriages, christen babies and resolve quarrels. Thus, the base claim to ownership of the land by Burat predates the Louisiana Purchase.

The factual history since then is both interesting and complicated, but it is not necessary to this decision to make a complete recitation of that history. It involves disputes at various junctures in the chain of title since 1803. Although the Louisiana Purchase incorporated Burat’s land into the United States, statutes formulated thereafter made it possible for Burat to claim the land on which he lived and worked. His attempts to perfect his title, however, went unsatisfied due to an erroneous survey which showed Burat’s four sections of land to be where they were not, and at the same time showed those sections which he was actually settling and occupying with his family as being vacant. This error enabled others to file a claim for his land so that two lines of title developed. In 1837, a federal land register and recorder included Burat’s corrected claim in his report to Congress and in 1842, Congress confirmed Burat’s ownership by special legislative act. In 1972 a patent for the tract was finally issued to the heirs of Hubert Burat, with this caveat:

This patent shall only operate as a relinquishment of title on the part of the United States, and shall in no manner interfere with any valid adverse right to the same land, nor be construed to preclude a legal investigation and decision by the proper judicial tribunal between adverse claimants to the same land.

In the meantime, squatters and persons purporting to have ownership from the alleged erroneous claim of title took turns at occupying the land and in 1838 and 1839 patents were issued to these alleged “outlaw” claimants. During the period from 1924 to 1930, the Levee Board of the Orleans Levee District expropriated the property and became its owner. The Levee Board, claims ownership through this expropriation and the other defendants claim leasehold interests from the Levee Board. 'The plaintiffs assert that this land was the exclusive property of the United States when it was expropriated and that the Levee Board exceeded its state authority and illegally and unconstitutionally assumed ownership of the lands in a proceeding the plaintiffs described as a farce.

The defendants’ brief cautions us that the colorful recitation of history by the plaintiffs should not obscure the fact that neither Hubert Burat nor his heirs asserted any interest or claim to the land in over 100 years, and their present claim is based on assertion of legal title and not on any rights acquired by possession.

Regardless of the interesting history in Burat’s line of succession, however, the specific question before us is whether, since there is no diversity of citizenship between the parties, the plaintiffs’ claim of title raises any federal question upon which to posit federal court jurisdiction under 28 U.S.C.A. § 1331(a). Section 1331(a) provides original jurisdiction to district courts of all civil actions for over $10,000 wherein the matter arises “under the Constitution, laws, or treaties of the United States.” In bringing their suit, the heirs of Burat did not specify the federal question relied upon for jurisdiction but the trial court examined all allegations which might be considered as such and considered the contentions presented by plaintiffs in memorandum brief and oral argument to determine whether plaintiffs could, by amending their pleadings, state a case arising under the Constitution, laws or treaties of the United States, within the meaning of 28 U.S.C.A. § 1331. We too have considered lengthy oral argument and have carefully reviewed the briefs and authorities cited to us by the plaintiffs. Their brief lists a plethora of federal treaties, statutes, confirmations and patents: The Treaty of 1803 and The Acts of March 26, 1804 (2 Stat. 283); March 2, 1805 (2 Stat. 324); February 28 and April 21, 1806; April 25, 1812; May 11, 1820; February 6, 1835 (4 Stat. 749); January 12, 1825; July 6, 1842; and June 2, 1853. (The plaintiffs did not provide complete citations for these Acts, but our decision makes it unnecessary for us to examine them.)

The District Court found that federal jurisdiction, if existent, had to arise from the following allegations: (1) that plaintiffs’ title to the lands derived from a United States patent issued on May 24, 1972, pursuant to a private claim confirmed by Act of Congress on July 6, 1842; (2) that the United States was the owner of the lands during the interim, but the patent had retroactive effect to the date of confirmation, and (3) that the defendant Board of Levee. Commissioners wrongfully assumed ownership of the lands by various acts of expropriation during the period 1924 through 1932 in excess of its authority and in violation of the Constitution of the United States. In addition, plaintiffs assert that the United States has a continuing obligation to protect Burat’s rights by virtue of the treaty obligations in the Louisiana Purchase.

Three principles to which we find no applicable exceptions foreclose federal jurisdiction of plaintiffs’ claims: first, questions as to the title and rights to land within a state are of primary concern to that state and are not the customary business of federal courts; second, the fact that title derives from an Act of Congress or a United States patent does not raise a federal jurisdictional question; and third, federal jurisdiction must appear from those allegations necessary to state plaintiffs’ own claim and cannot rest upon the assertion that the defense raises or will raise a federal question. Finding further that the recent Supreme Court case of Oneida Indian Nation v. Oneida County, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) does not furnish plaintiffs with a key to the federal courthouse, we leave the heirs of Burat to test their title in state court.

That land title and possessory actions are normally not the business of federal courts is not questioned by plaintiffs and is such a firm concept that it needs no amplification. See, e. g., Beauregard v. New Orleans, 59 U.S. (18 How.) 497, 15 L.Ed. 469 (1855); White v. Burnley, 61 U.S. (20 How.) 235, 15 L.Ed. 886 (1857); Mays v. Kirk, 414 F.2d 131 (5th Cir. 1969); cf. Aaron v. Florida Gas Transmission Co., 412 F.2d 802 (5th Cir. 1969).

It has become a settled principle of law that a jurisdictional federal question is not raised merely because title to land devolves from a patent, such as Burat’s 1972 patent, or under an Act of Congress, such as Burat’s 1842 confirmation. Oneida Indian Nation v. Oneida County, 414 U.S. 661, 782, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) [42 U.S.L.W. 4195]; Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205 (1911); Joy v. St. Louis, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776 (1906); Florida C. & P. R. R. v. Bell, 176 U.S. 321, 20 S.Ct. 399, 44 L.Ed. 486 (1900).

Plaintiffs cite only three cases which appear to hold contrary to this proposition, United States v. White, 17 F. 561 (C.C.Cal.1893); Doolan v. Carr, 125 U.S. 618, 8 S.Ct. 1228, 31 L.Ed. 844 (1887); and McGilvra v. Ross, 215 U.S. 70, 30 S.Ct. 27, 54 L.Ed. 95 (1909). We think these cases readily distinguishable. White was a suit by the United States to set aside a patent obtained from it by fraud; Doolan was well distinguished after the decision in Joy v. St. Louis, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776 (1906), by the opinion in Taylor v. Anderson, 197 F. 383 (C.C.E.D.Okla.1911), aff’d 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218 (1914); and the McGilvra litigation turned entirely on whether a United States patent to lakeshore property passed title to lands below the highwater mark, or whether those lands vested in the state upon its admission to the Union. Even if these cases and other earlier cases could not be successfully distinguished, we agree with the defendants that they must be disregarded in light of the large number of subsequent opinions that consistently establish the principle.

Indeed, the heirs tend to recognize the validity of this general legal principle but contend that their case is different. Specifically, they argue that the involvement of two conflicting patents, one in each chain of title, requires a federal court to entertain the suit since only a federal court can invalidate a federal patent. We have found no authority which requires only federal courts to choose between conflicting patents. In fact, California Powder Works v. Davis, 151 U.S. 389, 14 S.Ct. 350, 38 L.Ed. 206 (1894), leads us to an opposite conclusion. The factual situation there was strikingly similar to that in the instant case: two parties claimed fee simple ownership of the same tract of California land originating from Mexican grants prior to the Treaty of Guadalupe Hidalgo. After the treaty, each party perfected its ownership to include two separate confirmations and patents from the United States. A quiet title suit was initiated in the California state courts which determined the rightful owner, ostensibly holding one federal patent to be inapplicable. The United States Supreme Court dismissed a writ of error to the California Supreme Court on the basis of no federal appellate jurisdiction. The California court’s “invalidation” of a federal patent was upheld, disputing the Burats’ contention that only federal courts can sort through conflicting patents. A federal question is not automatically raised because there are conflicting federal patents. Indeed, the courts of Louisiana have adjudicated contests between parties claiming title to lands under separate federal sources. See, e. g., Lott v. Prudhomme, 3 Rob. 293 (1842); Watterston v. Bennett, 18 La.Ann. 250 (1866); Walsh v. Lallande, 25 La.Ann. 188 (1873); State v. Bozeman, 156 La. 635, 101 So. 4 (1924).

A second persuasive reason that a federal question as to a conflicting patent would not support plaintiffs jurisdictional claim furnishes the answer to another significant fact upon which the heirs rest their claim to federal jurisdiction: the alleged wrongful expropriation of the land by the Levee Board in violation of the United States Constitution. It is agreed that the Burats have sought to bring what would be called under Louisiana law, a petitory cause of action, a civil action to adjudge title to and ownership of real estate as distinguished from one to try merely the right of possession, the equivalent of the common law action for ejectment to try title. The essential allegation in such an action is that the plaintiffs have title to lands possessed by the defendants. Just as plaintiffs’ case rests on the strength of its own patent, not the possible invalidity of a conflicting patent, the attack on the defendants’ title through allegations of wrongful and unconstitutional expropriation is not essential to the Burats’ cause of action. Such allegations amount to possible defense on the strength of conflicting claims and to a negation of the Levee Board’s possible expropriation defense. It is well settled that matters of defense anticipatorily alleged do not create federal question jurisdiction. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). Such attempts must fail under the “well-pleaded complaint” rule, stated in Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218 (1914) as follows:

But the contention overlooks repeated decisions of this court by which it has become firmly settled that whether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute (now § 24, Judicial Code), must be determined from what necessarily appears in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.

234 U.S. at 75. Accord Joy v. St. Louis, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776 (1906); Florida C. & P. R. R. v. Bell, 176 U.S. 321, 20 S.Ct. 399, 44 L.Ed. 486 (1900).

The Burats argue that their cause of action requires them to affirmatively show “title good against the world,” thus making the wrongful expropriation an essential element of their case. Their case does not depend, however, on the expropriation; it depends on the patent involved through which the Burats claim ownership. The Burats recognized this point in their reply brief when they reduced the case to its simplest terms:

The plaintiff must prove a title; to do so he must prove that he holds a valid federal patent; accordingly, he must establish that his patent right is, in the face of other federal patents on the same land, the only patent of federal validity.

This is nothing more than any plaintiff would have to prove to succeed in an action of this kind. Proving that the Levee Board’s expropriation was unconstitutional or that other patents are invalid is not part of the proof that their patent is valid. As stated in 1 Moore Fed. Practice, § 0.60(8-3) at 632:

In determining whether plaintiff's claim is one “arising under,” the elements of the claim must be understood. Thus if the action is one involving possession of real property and the plaintiff is out of possession so that his suit is essentially ejectment, the action can seldom if ever present a case “arising under,” unless the plaintiff or defendant is a federal corporation. The reason is that a proper statement of claim consists of general allegations such as, plaintiff is the owner in fee simple of certain described property, the defendant wrongfully withholds possession, the plaintiff is entitled to immediate possession, and his damages, if any. No federal question emerges from this generalized, concise statement, whether plaintiff’s title comes remotely or directly from the United States.

Finally, the Burats attempt to draw a parallel between their case and the recent Supreme Court decision in Oneida Indian Nation v. Oneida County, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) in which the Court found federal question jurisdiction over a land dispute between the Oneida Indians and the State of New York. In anaylzing the case, the Burats contend that federal question jurisdiction rests on three controlling factors: (1) that the claimant have a possessory right which predated the United States acquisition of the land; (2) that there be an unconstitutional taking by the state; and (3) that there remains a continuing federal interest. In Oneida, these requirements were met by the Oneida Indians’ aboriginal ownership of the land, the unconstitutional taking by the State of New York, in violation of the Nonintercourse Act, 1 Stat. 137, and the continuing treaty obligations of the United States to uphold and protect the Indians’ lands. The Burats contend the fact situation at bar is parallel: (1) Hubert Burat owned the land during French and Spanish control of the territory which predated the United States acquisition through the Louisiana Purchase; (2) an agency of the State of Louisiana unconstitutionally expropriated the land, and (3) there is a continuing federal interest flowing from the Treaty of 1803, which recognized the rights of those settled in the territory, various statutes which outlined the procedure for perfecting title, and the fact that certain portions of the Burat tract remained in the public domain.

We find little guidance in the Oneida decision that helps the Burats. That case involved a federally protected right of an Indian tribe to possession of land. First, the Supreme Court focused on the facts that Indians were involved in Oneida, and much of the opinion was spent tracing the development of federal judicial treatment of Indian claims. The Court reiterated the proposition “that Indian title is a matter of federal law.” 414 U.S. at 670. As Justice Rehnquist’s concurring opinion points out, the case would have been quite possibly different had not the Indians’ particular relationship with the United States been present.

Second, the unconstitutional taking in Oneida stemmed from the Indians’ cession of reservation lands to the State of New York. This conveyance was forbidden without the consent of the United States under the Nonintercourse Act of 1790, 1 Stat. 137. In this case, however, it is alleged that the Levee Board unconstitutionally took land that was in the public domain and under congressional control. The Burats do not have standing to contest the expropriation of United States owned land, nor do they have standing to contest the taking of privately owned land from other owners. Their claim to the land must rise or fall on their own title.

Third, the treaty protection given Burat was not equivalent to that given the Oneida Indians. The Indian treaties guaranteed to the tribe a right of occupancy, a present and continuing right to possession which could not be divested except by the United States. The Treaty of 1803 made no such guarantees to the Burats. In Chouteau v. Eckhart, 43 U.S. (2 How.) 344, 11 L.Ed. 293 (1844), the Supreme Court interpreted the governmental obligations flowing from the Treaty of 1803:

inchoate claims . . . were not changed in their character, by the treaty by which Louisiana was acquired; that the treaty imposed on this government only a political obligation to perfect them; that this obligation, sacred as it may be, in any instance, cannot be enforced by any action of the judicial tribunals; and that the legislation of Congress, from 1804, to the present time, has proceeded upon this construction of the treaty, as is manifested by the modes adopted to investigate the claims through boards of commissioners, and then acting on them by legislation.

43 U.S. at 358-359. The treaty recognized that the inhabitants had certain property rights. The subsequent statutes merely enabled the inhabitants to perfect those rights. There was no guarantee of possession as in the Indian treaties.

The plaintiffs have failed to point out and we are unable to find any substantial federal issues, the determination of which would be decisive of plaintiffs’ claim.

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, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction or effect of such a law, upon the determination of which the result depends. This is especially so of a suit involving rights to land acquired under a law of the United States.

Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205 (1911). We hold that the heirs of Burat have not presented a federal question under 28 U.S.C.A. § 1331.

Affirmed.