Ter Haar v. Kettleman North Dome Ass'n

The plaintiff instituted an action in the Superior Court of California, County of Fresno, seeking an injunction against the defendant for alleged trespass through oil development and extraction operations, upon property in the County of Fresno, ownership of which the plaintiff claimed by virtue of a homestead entry which later ripened into a patent from the United States Government.

On petition for removal, the cause was removed to this court. The plaintiff has moved to remand.

*824 I am of the view that the action was properly removed to this court, as arising “under the * * * laws of the United States”. 28 U.S.C.A. § 41 (1).

Granted that unnecessary allegations in a plaintiff’s complaint, anticipatory of defenses, cannot be considered in determining whether the question is one within the jurisdiction of the District Court (Marshall v. Desert Properties Co., 9 Cir., 1939, 103 F.2d 551 ), averments which áre a part of the plaintiff’s claim, and which show a dispute or controversy relating to the construction or effect of federal statutes, cannot be disregarded.

Had the plaintiff cast his claim in the form of a general allegation of ownership and a charge of trespass, his…