and the charters of the city to the Federal Constitution is primarily for the state courts.

The question of the repugnancy of these acts or charters to the impairment clause or the deprivation clause of the Constitution, does not actually or necessarily arise under the allegations of the bill. The judicial power extends to all cases in law or equity, arising under the Constitution, but these are cases actually, and not potentially, arising, and jurisdiction cannot be assumed on mere hypothesis. New Orleans v. Benjamin, 153 U. S. 411, 424; Defiance Water Company v. Defiance, 191 U. S. 184.

Section 1979, Title XXIV, Revised Statutes of the United States, has no application to suits of this nature. Holt v. Indiana Manufacturing Company, 176 U. S. 68.

The fact that the United States, in issuing patents to the predecessors of the appellants, under the act of March 3, 1851, did not pretend that it was the owner of such lands, is shown by the provisions contained in the act, that patents issued thereunder shall be "conclusive between the United States and said claimants only, and shall not affect the interests of third persons." The act is not drawn in question and made the subject of dispute merely because adverse claims are made to rights claimed thereunder. Cook County v. Calumet & C. Canal & D. Co., 138 U. S. 653; Blackburn v. Portland Gold Mining Co., 175 U. S. 571; DeLamar's Nevada Gold Min. Co. v. Nesbitt, 175 U. S. 523.

The disclaimers contained in the answer effectually remove any possible ground of Federal jurisdiction. Crystal Springs Land & Water Co. v. Los Angeles, 177 U. S. 169; Boston &c. Mining Co. v. Montana Ore Co., supra.

MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.

There being no diversity of citizenship, the jurisdiction of the Circuit Court could only be maintained upon the ground

that the suit arose under the Constitution or laws or treaties of the United States, and a suit does not so arise unless it really and substantially involves a dispute or controversy as to the effect or construction of the Constitution or some law or treaty of the United States, upon the determination of which the result depends. And this must appear from the plaintiff's statement of his own claim, and cannot be aided by allegations as to the defenses which might be interposed.

Complainants prayed for a decree quieting their title to the lands described in the bill, but the averments did not bring the case within the classes of bills of peace or to quiet title, recognized by the usual chancery practice as succinctly stated in Boston &c. Mining Company v. Montana Ore Company, 188 U. S. 632. It was apparently framed under section 738 of the California Code of Civil Procedure, providing that "an action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim." This statute enlarged the ancient jurisdiction of courts of equity in respect of suits to quiet title, but, the equitable rights themselves remaining, the enlargement thereof may be administered by the Circuit Courts of the United States as well as by the courts of the State. Broderick's Will, 21 Wall. 503; Holland v. Challen, 110 U. S. 15; Gormley v. Clark, 134 U. S. 338, 348.

It seems, and it has often been held by the Supreme Court of California, that in an action under this section it is not necessary that the complaint should allege the nature of the estate or interest claimed by the defendant. Head v. Fordyce, 17 California, 149, 151; Castro v. Barry, 79 California, 443; Mining Company v. Mining Company, 83 California, 589.

We are dealing with the question of the jurisdiction of the Circuit Court, and the general rule as to that is thus stated by Mr. Justice Peckham, speaking for the court, in Boston Mining Company v. Montana Ore Company, 188 U. S. 632:

"It would be wholly unnecessary and improper in order to prove complainant's cause of action to go into any matters of defense which the defendants might possibly set up, and then attempt to reply to such defense, and thus, if possible, to show that a Federal question might or probably would arise in the course of the trial of the case. To allege such defense and then make an answer to it before the defendant has the opportunity to itself plead or prove its own defense is inconsistent with any known rule of pleading so far as we are aware, and is improper. "The rule is a reasonable and just one that the complainant in the first instance shall be confined to a statement of its cause of action, leaving the defendant to set up in his answer what his defense is.

"The cases hold that to give the Circuit Court jurisdiction the Federal question must appear necessarily in the statement of the plaintiff's cause of action, and not as mere allegations of the defense which the defendants intend to set up or which they rely upon. Third Street Railway Company v. Lewis, 173 U. S. 457."

Tested by this rule, we are of opinion that, as a bill to quiet title, the jurisdiction of the Circuit Court cannot be sustained by reason of the allegations that defendant's adverse claims are based on an erroneous construction of the treaty of Guadalupe Hidalgo, the act of March 3, 1851, and the acts of the legislature of California, and ordinances and charters of the city of Los Angeles, enumerated, as clearly shown hereafter.

But complainants, appellants here, deny that the present case was brought under section 738, and say that the bill was one to remove clouds from complainants' titles, that is to say, clouds created by claims and threats, and by the several acts of California, including defendant's charters, which complainants ask to be declared invalid.

We do not understand, however, that a bill will lie to dispel mere verbal assertions of ownership as clouds on title, or, in

voking equity interposition on the ground of the removal of clouds, that decrees may be sought adjudging statutes unconstitutional and void. If it were true that the statutes and charters referred to in the bill were unconstitutional as alleged, they were void on their face, and could not constitute a cloud on complainants' titles.

The test as to when a cloud is or is not cast, as stated by Mr. Justice Field, then Chief Justice of California, in Pixley v Huggins, 15 California, 127, and reasserted in Hannewinkle v. Georgetown, 15 Wall. 547, is undoubtedly applicable, and demonstrates that the assertion of unconstitutionality cannot be resorted to to maintain Federal jurisdiction as constituting a cloud. The averment of unconstitutionality in such circumstances is a mere pretext to obtain that jurisdic

tion.

According to the bill, complainants' titles were derived from Spain and Mexico by virtue of grants to their predecessors from those countries, which were confirmed by the Board of Land Commissioners. The State of California was not in the line of such titles, so that the acts of the legislature and the charters of the city complained of manifestly did not have the effect of depriving complainants of their property or of impairing the obligation of any contract, but simply conferred on the city such rights in respect of the waters of the river as may have been vested in the State.

Hooker v. Los Angeles, 188 U. S. 314, was a suit brought by the city to condemn a tract of land riparian to the Los Angeles river, and embraced in one of the ranchos described in the present bill. It originated in the Superior Court of the County of Los Angeles under the title of City of Los Angeles v. Pomeroy, was carried to the Supreme Court of the State, and there affirmed. 124 California, 597, 637, 638. It involved the question of the respective rights of the city and of the defendants to the water of the Los Angeles river. The state Supreme Court said:

"No act of the legislature

can diminish or change

the rights of the defendants in these lands derived from their predecessors, the Mexican and Spanish grantees.

"The defendants hold their lands as successors to several Spanish and Mexican grantees, under patents from the United States based upon the original grants. They claim that, even conceding the rights of the pueblo and the city's succession to those rights (a concession which they make only for the purposes of the argument on this point), they are still, by virtue of their ownership of the lands in question, entitled to the exercise of full riparian rights, except so far, an o far only, as those rights are impaired by the paramount rights of the pueblo as they existed before the change of flag and without any legislative addition thereto.

"This claim, we think, is clearly just. The legislature of California could grant nothing to the city of Los Angeles which belonged to others, and the rights of the city, as successor to the pueblo, in the lands of riparian proprietors holding under Mexican and Spanish grants, cannot exceed the rights of the pueblo itself."

The case was brought here on writ of error, and we said:

"And so as to certain statutes of the State of California, which declared that the city of Los Angeles is vested with the paramount right to the surface and subterranean water of the Los Angeles river. Those statutes were admitted in evidence merely to show that the city was the successor of the ancient pueblo. The court held that the right of the city of Los Angeles to take from the Los Angeles river all of the waters of the river to the extent of its reasonable domestic and municipal needs was based on the Spanish and Mexican law, and not on the charters of the city of Los Angeles. The validity of the statutes, on account of repugnancy to the Federal Constitution, was not drawn in question in the trial court nor in the Supreme Court of the State, and both courts held that they neither granted to the city nor took away from plaintiffs in error any rights or property."