Club Comanche, Inc. v. Government of Virgin Islands

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit

1-14-2002

Club Camanche Inc. v. Govt. of Virgin Islands
Precedential or Non-Precedential:

Docket 01-1717

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"Club Camanche Inc. v. Govt. of Virgin Islands" (2002). 2002 Decisions. Paper 15.
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Filed January 14, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1717

CLUB COMANCHE, INC.

v.

GOVERNMENT OF THE VIRGIN ISLANDS,
and any other person or party
claiming an interest in Plot 40
or 40A Strand Street, Christiansted,
St. Croix, Appellant

On Appeal From the District Court
of the Virgin Islands
(D.C. Civ. No. 98-cv-00213)
District Judge: Honorable Raymond L. Finch, Chief Judge

Argued: December 3, 2001

Before: BECKER, Chief Judge, NYGAARD and
COWEN, Circuit Judges.

(Filed January 14, 2002)
 IVER A. STRIDIRON, ESQUIRE
Attorney General
FREDERICK HANDLEMAN,
ESQUIRE
Solicitor General
RICHARD M. PRENDERGAST,
ESQUIRE (ARGUED)
Assistant Attorney General
Virgin Islands Department of Justice
6040 Castle Coakley
Christiansted, St. Croix, V.I. 00820

Counsel for Appellant

BETHANEY J. PICHIERRI, ESQUIRE
(ARGUED)
Tom Bolt & Associates
Corporate Place
Royal Dane Mall
Charlotte Amalie, St. Thomas,
U.S. Virgin Islands 00802

BRIAN P. KENNEY, ESQUIRE
Kenney & O'Shea
1818 Market Street - Suite 3520
Philadelphia, PA 19103

Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

A dispute between the Government of the Virgin Islands
("GVI") and a littoral landowner1 over the boundaries of a
piece of property in downtown Christiansted, St. Croix, led
to this quiet title action in the District Court of the Virgin
Islands, which the District Court resolved by granting
summary judgment to the plaintiff, Club Comanche, Inc.
_________________________________________________________________

1. "A littoral landowner is one whose land borders an ocean, sea, or
lake." Alexander Hamilton Life Ins. v. Gov't of the Virgin Islands, 757
F.2d
534, 538 (3d Cir. 1985).

2
The threshold question in this appeal is whether the
District Court had (or lacked) subject matter jurisdiction.
Applying the "well-pleaded complaint rule," we conclude
that none of the asserted bases for jurisdiction in the
District Court rather than the Territorial Court of the Virgin
Islands -- i.e., the 1916 treaty by which Denmark
transferred the Virgin Islands to the United States and the
federal statutes by which the United States transferred
public lands and submerged and reclaimed lands to the
GVI in 1974 -- is sufficient to support federal question
jurisdiction in a quiet title action brought pursuant to the
Virgin Islands quiet title statute, 28 V.I.C. S 372. We will
therefore vacate the District Court's order and remand with
instructions to dismiss the suit without prejudice.

I. Facts & Procedural History

The case involves the disputed boundaries of the property
at 40 Strand Street, which is located in the town of
Christiansted. Club Comanche, Inc., the current owner of
40 Strand Street, operates a hotel and restaurant on the
property. The case arises from the GVI's attempt to build a
pedestrian boardwalk along Christiansted Harbor.
According to Club Comanche, the GVI told the littoral
landowners in Christiansted that it could not afford to
exercise eminent domain and pay for the land necessary to
build the boardwalk. Believing that the boardwalk would be
beneficial to their businesses, the littoral landowners,
including Club Comanche, agreed to grant a "perpetual
easement" to the government for the boardwalk. The GVI
originally agreed to this arrangement but, in Club
Comanche's submission, subsequently claimed that the
coastline of lot 40 actually does not belong to Club
Comanche but rather to the GVI in trust for the people of
the Virgin Islands. The GVI drew a new map of the area
around lot 40 Strand Street, designating the northern
coastal portion of the lot as "lot 40A Strand Street," and
claimed ownership of the renamed parcel. In response,
Club Comanche filed this quiet title action in the District
Court.

Lot 40 Strand Street is a roughly rectangular piece of
property that fronts Strand Street on its southern edge. The

3
lot is bordered on its western edge by lot 39 Strand Street.
The northern and eastern borders of the property are in
dispute. Club Comanche contends that its property extends
northward all the way to Christiansted Harbor. The GVI
submits that Club Comanche's lot does not extend all the
way to the water, and that the coastal area north of lot 40,
which it has designated lot 40A, belongs to the GVI. 2 This
dispute turns largely on the proper translation of the first
document recording the dimensions of lot 40 Strand Street,
the so-called Danish Measure Brief. The dimensions from
the original Danish Measure Brief have appeared on the
deeds to that property since 1803 (first in Danish, and later
in English).

The deed by which the previous owner of 40 Strand
Street conveyed the property to Club Comanche recites the
following interpretation of the language from the original
Danish Measure Brief:

MEASURE BRIEF

FOR THE PROPERTY NO. 40 Strand Street, in the
Town of Christiansted, on the Island of St. Croix, V.I.[,]
U.S.A.

THIS IS TO CERTIFY that the above mentioned lot
according to the Surveyor's Records has the following
boundaries:

to the north 63 feet towards the sea
to the south 61 feet towards Strand Street
to the East 215 feet towards 55 King Street
to the West 215 feet towards 39 Strand Street

This area is about DANISH MEASURE square feet.3
_________________________________________________________________

2. On the eastern edge of the property, Club Comanche maintains that
its lot is bordered by the lot at 55 King Street, while the GVI contends
that it has always owned a corridor of land along the eastern edge of the
property that could accommodate the extension of Strand Lane (which is
perpendicular to Strand Street) northward to the harbor.

3. Danish feet are slightly longer than English feet. A length of 215
Danish feet is roughly equal to 221.5 English feet. The dimensions that
we cite in this opinion are in Danish feet.

4
Club Comanche offered testimony from its surveyor, who
contacted the main Cadastral (property records) Office in
Denmark, which keeps historical property records from St.
Croix, stating that the Danish word "til," which the above
passage translates as "towards," should actually be
translated as "along" or "against." This would make the
proper translation of the Measure Brief, "63 feet along the
sea," "61 feet along Strand Street," and so on.4 Under this
translation, Club Comanche would be a littoral landowner.

The GVI presented an affidavit from a translator that
stated that the proper translation of the dimensions recited
in the Danish Measure Brief is as follows:

Facing North 63' toward the Sea
[Facing] South 61' toward Strand Street
[Facing] East 215' toward 55 King's Street
[Facing] West 215' toward 39 Strand Street

The translator translated the word "facing" from the Danish
word "mod," which begins the first line of the original
Danish Measure Brief. According to the translator's
affidavit, "[t]he word `mod' is a shortened form of the
Danish expression `med front mod,' meaning `facing' in
English." The word "mod" does not precede the next three
lines, but the translator inferred from its placement that it
applied to all four. The translator also offered a longer
interpretation of the meaning of the abbreviated phrases
used on the Measure Brief, opining that:

[T]he intention of the description is to explain the size
of the piece of land and where it is located. Thus, in
reality what is being stated is:

The property line facing the north side toward the sea
is 63 feet long.

The property line facing the south side toward Strand
Street is 61 feet long.

The property line facing the east side toward 55 King's
Street is 215 feet long.
_________________________________________________________________

4. Club Comanche also submitted an affidavit from a Danish translator
that interpreted the word "til" in the Measure Brief to mean "to."

5
 The property line facing the west side toward 39 Strand
Street is 215 feet long.

Thus, in order to understand how far 40 Strand Street
extends towards the sea, it is necessary to look at the
east and west property lines. According to the
surveyor's description, the property extends 215'
(Danish measure) from Strand Street in the direction of
the sea, that is, northward.

Under this interpretation, given the dimensions of the
disputed lot, Club Comanche would not be a littoral
landowner with any claim to the area traversed by the
boardwalk.

Basing its argument on the contention that the original
Danish Measure Brief defined the property as running
"along the sea," or northward "to the sea," Club Comanche
reasoned that the rule of construction stated in 28 V.I.C.
S 47(2) should apply. That section states:

When permanent and visible or ascertained boundaries
or monuments are inconsistent with the measurement
either of lines, angles, or surfaces, the boundaries or
monuments are paramount.

28 V.I.C. S 47(2) (1996). Club Comanche argued that
because the boundary defined by reference to the sea was
inconsistent with the actual distance between Strand Street
and the sea, the court should, pursuant to 28 V.I.C.
S 47(2), declare that the sea is the actual northern
boundary of lot 40. The GVI, in contrast, contended that
the translation that it offered means that lot 40 Strand
Street extends northward only 215 feet from Strand Street,
leaving a strip of coastline between the northern boundary
of the lot and Christiansted Harbor, which it asserts
belongs to the GVI.

Following discovery, Club Comanche moved for summary
judgment. The GVI filed a brief in opposition to the motion
and a cross-motion for summary judgment. Club
Comanche then moved for a temporary restraining order
(TRO) and preliminary injunction against the construction
of the boardwalk. Following a hearing, the District Court
granted the TRO, ordering the GVI to cease exercising

6
dominion over lot 40A, with the proviso that the GVI could
continue to build the boardwalk subject to the
understanding that it would be required to remove any of
the boardwalk it constructed on lot 40A if that portion of
the lot was later determined to belong to Club Comanche.

The parties filed a stipulation waiving a hearing on the
request for a preliminary injunction and the summary
judgment motions. Thereafter, Club Comanche moved to
amend its complaint to request a declaration clarifying title
to the disputed area on the eastern side of the property (the
Strand Lane extension), see supra note 2, which the
District Court granted. Club Comanche then filed an
amended complaint that included a prayer for declaratory
judgment on the disputed eastern edge of the property,
which the GVI answered.

On February 22, 2001, the District Court entered an
order granting Club Comanche's motion for summary
judgment, and denying the GVI's cross-motion without an
accompanying opinion. Judging from the language in the
order, it appears that the District Court accepted Club
Comanche's translation of the Danish Measure Brief and
applied the presumption from 28 V.I.C. S 47(2), concluding
that "[u]pon consideration of the evidence presented to the
Court, the Court now finds [that][a]s proven by the
testimony of Marshall Walker, surveyor, . . . Plot 40 . . .
was originally intended to `run to the sea' and include Plot
40A." (emphasis added). Although it did not discuss the
legal issues involved in the dispute regarding the eastern
edge of the property, the District Court's grant of summary
judgment also disposed of that issue. The GVI now appeals
the District Court's order granting summary judgment to
Club Comanche.

II. Subject Matter Jurisdiction

A. Background -- Contentions of the Parties

Although neither party challenges the District Court's
subject matter jurisdiction (or raised the issue in the
District Court), we are obligated to address questions of

7
jurisdiction sua sponte. See Meritcare Inc. v. St. Paul
Mercury Ins. Co., 166 F.3d 214, 217 (3d Cir. 1999).

We have detailed the jurisdictional history of the District
Court of the Virgin Islands in Callwood v. Enos , 230 F.3d
627 (3d Cir. 2000), and Brow v. Farrelly, 994 F.2d 1027 (3d
Cir. 1993), so we will provide only a summary version here.
The Revised Organic Act, 48 U.S.C. SS 1541-1645 (West
1987 & Supp. 2001), which Congress enacted pursuant to
its power under Article IV, S 3 of the U.S. Constitution,
establishes the jurisdiction of the District Court of the
Virgin Islands.5 Before 1984, the Revised Organic Act vested
broad jurisdiction in the District Court of the Virgin
Islands, including jurisdiction over "all causes arising
under the Constitution, treaties and laws of the United
States," Act of July 22, 1954, ch. 558 S 22, 68 Stat. 497, as
well as "general original jurisdiction over all other matters
in the Virgin Islands, subject to the exclusive jurisdiction of
the local courts over civil actions in which the amount in
controversy was less than $500 and over criminal actions
for local offenses in which the maximum punishment did
not exceed six months in prison or a $100 fine." Callwood,
230 F.3d at 630. The result of this broad grant of
jurisdiction was that the District Court of the Virgin Islands
was "more like a state court of general jurisdiction than a
United States district court." Carty v. Beech Aircraft Corp.,
679 F.2d 1051, 1057 (3d Cir. 1982).

In 1984, Congress rewrote the section of the Revised
Organic Act that defines the jurisdiction of the District
Court of the Virgin Islands. The new jurisdictional provision
effected two changes. First, the Act provided that,"[t]he
District Court of the Virgin Islands shall have the
jurisdiction of a District Court of the United States,
including, but not limited to, the diversity jurisdiction
provided for in section 1332 of Title 28, and that of a
_________________________________________________________________

5. Article IV, S 3 of the U.S. Constitution authorizes Congress to make
"all needful Rules and Regulations respecting the Territory or other
Property belonging to the United States." U.S. Const. art. IV, S 3, cl. 2.
Pursuant to this power, Congress enacted the Revised Organic Act,
which serves as the Virgin Islands constitution. See Parrott v. Gov't of
the
Virgin Islands, 230 F.3d 615, 623 (3d Cir. 2000).

8
bankruptcy court of the United States." 48 U.S.C.S 1612(a).
As we noted in Walker v. Government of the Virgin Islands,
230 F.3d 82 (3d Cir. 2000), this provision "affirmatively
bestows on the District Court of the Virgin Islands the
entire jurisdiction of a District Court of the United States
. . . ." Id. at 86. Second, the Act provided that "the District
Court of the Virgin Islands shall have general original
jurisdiction in all causes in the Virgin Islands the
jurisdiction over which is not then vested by local law in
the local courts of the Virgin Islands . . . ." 48 U.S.C.
S 1612(b). Most importantly, however, in this section,
"Congress gave the Virgin Islands legislature the power to
vest jurisdiction over local actions exclusively in the local
courts." Callwood, 230 F.3d at 631; see also Estate Thomas
Mall, Inc. v. Territorial Court of the Virgin Islands, 923 F.2d
258, 261 (3d Cir. 1991).

The Virgin Islands legislature exercised this power in
1990, by enacting the following statutory section, which
provides in relevant part:

Subject to the original jurisdiction conferred on the
District Court by section 22 of the Revised Organic Act
of 1954, as amended, effective October 1, 1991, the
Territorial Court shall have original jurisdiction in all
civil actions regardless of the amount in controversy
. . . .

4 V.I.C. S 76(a) (1997). In Brow we explained that "this
section divests the District Court of the Virgin Islands of
jurisdiction of all local civil actions, but does not divest the
District Court of its federal question and diversity
jurisdiction in civil actions, as evidenced by the provisional
language at the beginning of the statute." 994 F.2d at 1034;
see also 4 V.I.C. S 76(b) (1997) (vesting original jurisdiction
over all local criminal actions in the Territorial Court).

Therefore, the question in this case is whether the
District Court had jurisdiction to hear this dispute under
48 U.S.C. S 1612(a), which gives the District of the Virgin
Islands jurisdiction that is equivalent, at least in the civil
context, to that of a United States District Court. 6 Because
_________________________________________________________________

6. Cf. Callwood, 230 F.3d at 631 (noting that "under S 22 of the Revised
Organic Act, [48 U.S.C. S 1612(c),] the District Court of the Virgin
Islands
retains concurrent jurisdiction with the Territorial Court over criminal
actions in which the local crimes charged are related to federal crimes").

9
the parties are not diverse, the only possible source of
jurisdiction is federal question jurisdiction, which the
District Court of the Virgin Islands has pursuant to 28
U.S.C. S 1331 and 48 U.S.C. S 1612(a). We asked for
supplemental briefs on the source of federal question
jurisdiction in this case. Both parties agreed that this case
is an action to quiet title. Club Comanche concedes that
normally, such quiet title actions belong in the Territorial
Court, and not the District Court. However, both parties
contend that there are federal elements to the claim that
are sufficient to support federal question jurisdiction.

They point primarily to the Convention Between the
United States and Denmark, 39 Stat. 1706 (signed Aug. 4,
1916; ratified Jan. 16, 1917) (reprinted in Title 1 V.I. Code
Ann. at 27), by which the United States purchased from
Denmark all of the state-owned lands in the islands of St.
Croix, St. Thomas, and St. John. They argue that the
resolution of this quiet title action requires the court to
interpret this treaty, thus providing the basis for federal
question jurisdiction.

The GVI also points to three other purported sources of
federal question jurisdiction. First, the GVI cites the two
federal statutes by which the United States turned over
submerged and public lands to the GVI: 48 U.S.C.SS 1705-
08 (conveying to the GVI all submerged and formerly
submerged lands), and 48 U.S.C. SS 1545(b)(1) and (2)
(turning over to the GVI all public lands held by the United
States except those expressly reserved by the U.S.
Department of the Interior). The GVI also cites the federal
common law as a source of federal jurisdiction, which it
correctly contends is the law that governs questions of
shoreline filling and accretion that occurred prior to 1974,
when the United States conveyed submerged lands in the
U.S. Virgin Islands to the GVI. See Alexander Hamilton Life
Ins., 757 F.2d at 538 n.6.7
_________________________________________________________________

7. The federal common law of submerged lands is arguably relevant to
this case because one of the alternative arguments that the GVI presents
is that the coastal lot that it now designates lot 40A was originally
submerged land that the owners of lot 40 have reclaimed from the sea
through a process of artificial filling, primarily during the eighteenth
and

10
B. Significance of the Virgin Islands Quiet Title
Statute

Preliminarily we must dispose of the question whether
the fact that the Virgin Islands quiet title statute, 28 V.I.C.
S 372, which, when it was enacted in 1921, specifically
vested jurisdiction in the "district court," exempts quiet title
actions from 4 V.I.C. S 76(a)'s vesting of"original
jurisdiction in all civil actions" in the Territorial Courts. If
so, the District Court of the Virgin Islands would still have
jurisdiction over quiet title actions brought under 28 V.I.C.
S 372 pursuant to 48 U.S.C. S 1612(b). While Club
Comanche did not specifically cite S 372 as the basis for its
quiet title claim in this case, it acknowledges that its claim
is a quiet title claim. The parties do not cite and we cannot
find any statute other than 28 V.I.C. S 372 that could
support Comanche's quiet title action. Therefore, we
assume that Comanche has brought its claim pursuant to
that statute.

The Virgin Islands Code section governing quiet title
actions, titled "Action to determine boundaries," provides as
follows:
_________________________________________________________________

nineteenth centuries. We held in Alexander Hamilton Life Insurance that
the federal common law applied to a dispute over littoral property in the
Virgin Islands where the purported filling and/or extension of the
property into the sea through natural accretion took place prior to 1974,
when the GVI obtained title over submerged lands, (although we did not
decide whether the federal common law applies to filling or accretion
that took place prior to 1917, when the United States obtained from
Denmark title to the submerged lands surrounding St. Croix, St.
Thomas, and St. John). 757 F.2d at 538 n.6. Under federal common law,
if a littoral landowner's property is extended through the natural process
of accretion, then the reclaimed coastal land (also known as "fastlands")
"accrue to the owner of the adjoining uplands, because this owner
should not be deprived of his access to the sea, which is a major factor
in the value of his property, by slow and imperceptible acts of nature."
Id. at 538. However, "[t]itle to fastlands . . . resulting from
unauthorized
artificial fill remains with the owner of the submerged lands." Id. at
539.

We do not reach the question whether the federal common law of
submerged lands governs this dispute because even assuming that it
does, the plaintiff did not need to reference the federal common law in
its quiet title complaint, and thus it cannot be the basis for federal
question jurisdiction in this case. See infra Section II.C.

11
 In any case where any dispute or controversy exists, or
may hereafter arise, between two or more owners of
adjacent or contiguous lands in the Virgin Islands,
concerning the boundary lines thereof, or the location
of the lines dividing such lands, either party or any
party to such dispute or controversy may bring and
maintain an action of an equitable nature in the district
court for the purpose of having such controversy or
dispute determined . . . .

28 V.I.C. S 372 (1997) (emphasis added). Thus, the question
arises whether S 76(a)'s general grant of original jurisdiction
to the Territorial Courts in all civil actions has impliedly
repealed the part of 28 V.I.C. S 372 that earlier expressly
stated that quiet title actions should be brought"in the
district court." On one hand, the language ofS 76(a) is
broad and does not specify any exceptions. It
unambiguously states that "the Territorial Court shall have
original jurisdiction in all civil actions regardless of the
amount in controversy." S 76(a). And we have held that
S 76(a) has divested the District Court of the Virgin Islands
of jurisdiction over "all local civil actions." Brow, 994 F.2d
at 1034. On the other hand, to interpret S 76(a) to cover the
quiet title action established in S 372 would go against the
canon of statutory construction that "[i]mplied repeals are
not favored, and if effect can reasonably be given to both
statutes the presumption is that the earlier is intended to
remain in force." United States v. Vuitch, 402 U.S. 62, 88
(1971) (quoting United States v. Burroughs, 289 U.S. 159,
164 (1933)) (internal quotation marks omitted).

While we recognize that these two statutes are in some
tension, we are satisfied that S 76(a)'s language vesting
original jurisdiction in the Territorial Courts in"all civil
actions" includes quiet title actions, notwithstanding the
language from S 372 about bringing a quiet title action "in
the district court."8 ReadingS 76(a) to divest the District
_________________________________________________________________

8. In Newfound Mgmt. Corp. v. Lewis, 131 F.3d 108 (3d Cir. 1997), we
noted that jurisdiction over quiet title cases "resides in the territorial
court" for cases filed after the effective date of S 76(a). We did not
discuss
the issue, however, because the case before us had been filed before the
effective date of S 76(a) and thus the District Court of the Virgin
Islands
had jurisdiction notwithstanding the later vesting of such actions in the
Territorial Courts. Id. at 119 n.9. We take this opportunity to address
more fully why S 76(a) vests original jurisdiction over quiet title
actions
brought pursuant to 28 V.I.C. S 372 in the Territorial Courts.
12
Court of the Virgin Islands of jurisdiction overS 372 quiet
title actions does not actually impliedly repeal any operative
part of S 372. The only part that it arguably repeals is
S 372's statement that "either party or any party to such
dispute or controversy may bring and maintain an action of
an equitable nature in the district court . . . ." 28 V.I.C.
S 372 (emphasis added). The rest of the statute -- the part
that creates the cause of action -- remains. The part that
purports to vest jurisdiction in the district court, however,
was both inoperative (because only Congress may vest
jurisdiction in the District Court of the Virgin Islands) and
unnecessary (because Congress had already vested broad
jurisdiction in the District Court of the Virgin Islands) in
the first place. See Estate Thomas Mall, Inc. , 923 F.2d at 261.9

C. Reasons for the Absence of Federal Question
Jurisdiction

The most straightforward test of whether an action
presents a federal question is to determine the law from
which the cause of action arises, federal or otherwise.
Justice Holmes's formulation of this test was that"[a] suit
arises under the law that creates the cause of action." Am.
Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260
(1916). The parties in this case both concede that it is a
quiet title action. The only potential source of law for such
an action is 28 V.I.C. S 372, the Virgin Islands statute
_________________________________________________________________

9. We also note that the Territorial Court has interpreted S 76(a) as
"rendering null and void" a provision of the Virgin Islands Code that
contains language similar to S 372's language that purports to vest
jurisdiction "in the district court." In In re Application of Moorhead, 27
V.I. 74 (Terr. Ct. 1992), the Territorial Court considered the effect of
S 76(a) on 4 V.I.C. S 441. Section 441 provides that "[t]he district court
has jurisdiction over the admission of attorneys at law to practice in the
courts of the Territory and over the discipline of persons so admitted and
may make rules and regulations governing the practice of law in the
Territory." S 441(a). Finding the language of S 76(a) to be "clear and
unequivocal" in its intent to "include[ ] all civil actions cognizable in
local
courts," the Territorial Court found that when the Virgin Islands
legislature enacted S 76(a), "the District Court was then divested of such
jurisdiction, and the prior local law, 4 V.I.C. Sec. 441, being
inconsistent
with [S 76(a)], was rendered null and void." Moorhead, 27 V.I. at 82, 84.

13
titled, "Action to determine boundaries." See supra at
11-12.

If, as here, the cause of action is created by state or
territorial law rather than federal law, the claim may still
present a federal question. In these circumstances,"[t]he
presence or absence of federal-question jurisdiction is
governed by the `well-pleaded complaint rule,' which
provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff 's properly
pleaded complaint." Rivet v. Regions Bank of La., 522 U.S.
470, 475 (1998) (quoting Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987) (internal quotation marks omitted)). A
plaintiff 's lack of reference, or erroneous reference to
federal law is not controlling. See N. Am. Phillips Corp. v.
Emery Air Freight Corp., 579 F.2d 229, 233 (2d Cir. 1978).
Common-law pleading requirements originally provided the
benchmark for determining whether a federal element must
be raised to support a "well-pleaded" complaint. See Wright
et al., Federal Practice and Procedure,S 3566 at 83 (1984)
(noting that in early cases, the Supreme Court "cit[ed]
Chitty [on Pleadings] to determine what allegations are
proper").

Modern cases, however, look to the pleading
requirements established in the statutes from which the
causes of action arise, or in courts' interpretations of the
pleading requirements of those statutes. See, e.g., Yokeno v.
Mafnas, 973 F.2d 803, 808 (9th Cir. 1992) (citing Hodges
Transp., Inc. v. Nevada, 562 F. Supp. 521, 522 (D. Nev.
1983), which in turn relied on the Nevada Supreme Court's
interpretation of the pleading requirements in quiet title
actions for the purpose of the well-pleaded complaint rule).
The Virgin Islands legislature has helpfully specified what is
necessary for a properly pleaded complaint brought under
28 V.I.C. S 372:

The complaint in an action to determine boundaries
shall be sufficient if it appears therefrom that the
plaintiff and defendant or defendants are owners of
adjacent lands and that there is a controversy or
dispute between the parties concerning their boundary
or dividing line or lines. It shall not be necessary to set
forth the nature of such dispute or controversy further

14
 than that the plaintiff shall describe the boundary or
dividing line as he claims it to be. The defendant, in his
answer, shall set forth the nature of his claim with
reference to the location of the lines in the controversy.

28 V.I.C. S 373 (1997) (emphasis added).

Club Comanche could have filed a well-pleaded S 372
complaint in this action simply by stating the boundaries of
the property that it claimed. Thus, in this case, the federal
issues of interpreting the Convention Between the United
States and Denmark, interpreting the federal statutes that
transferred submerged and public lands from the United
States to the GVI, and applying the federal common law of
submerged lands, did not need to be raised in Club
Comanche's well-pleaded quiet title complaint. Therefore,
applying the well-pleaded complaint rule, Club Comanche's
quiet title action does not contain a federal question
sufficient to support jurisdiction under 28 U.S.C.S 1331
and 48 U.S.C. S 1612(a).

Other federal courts that have considered the question
whether quiet title actions in which the defendant's claim to
the land was based on federal law have also concluded that
they do not qualify for federal question jurisdiction under
the well-pleaded complaint rule. See American Invs-Co
Countryside, Inc. v. Riverdale Bank, 596 F.2d 211, 217 n.10
(7th Cir. 1979) ("If title to land is in doubt because of some
matter of federal law, there is federal jurisdiction to
entertain a bill to remove a cloud on title but not a suit to
quiet title, since allegations as to the nature of the cloud
are proper in the first kind of action but improper in the
second."); see also Friend v. Kreger, 1998 U.S. Dist. LEXIS
6764, at *2 (N.D. Cal. May 7, 1998) (finding that the state
law quiet title action before the court did not present a
federal question under the well-pleaded complaint rule);
accord 14 ALR.2d 992, 1125 (1950) ("[I]t is difficult, at least
in the ordinary type of case, to plead a Federal question
substantial in nature which is an essential element of
plaintiff 's quiet title action . . . ."). This analysis accords
with common jurisprudential notions of the incidents of
"arising under" jurisdiction. The mere fact that a source of
law, such as the treaty involved here, is consulted in
deciding an issue, does not create jurisdiction.

15
For the foregoing reasons, we hold that Club Comanche's
quiet title claim does not "arise under" the laws or treaties
of the United States within the meaning of section 1331,
and therefore that the District Court did not have
jurisdiction over this dispute under 48 U.S.C. S 1612(a).10
We will therefore vacate the District Court's summary
judgment order and remand the case with instructions for
the District Court to dismiss it without prejudice so that it
may be refiled in the Territorial Court.11 Dismissal without
prejudice should not present a problem for Club Comanche
because there appears to be a twenty-year statute of
limitations on quiet title actions. See 5 V.I.C. S 32(b) (1997)
("An action for the determination of any right or claim to or
interest in real property shall be deemed within the
limitations provided for actions for the recovery of the
possession of real property."); S 31(1)(A) (actions for the
recovery of the possession of real property are subject to a
twenty-year statute of limitations). We note in this regard
that the District Court does not have the authority to
transfer the case to the Territorial Court. See Moravian Sch.
Advisory Bd. v. Rawlins, 70 F.3d 270, 274 (3d Cir. 1995).
10. Although Club Comanche cited in its complaint the "takings" clause
of the Fifth Amendment to the U.S. Constitution (which applies to the
U.S. Virgin Islands pursuant to the Revised Organic Act, 48 U.S.C.
S 1561), it never requested relief in the form of "just compensation,"
never argued the "takings" issue before the District Court, and has not
argued before this court that the "takings" clause serves as the basis for
federal question jurisdiction. Moreover, Club Comanche suffered neither
a permanent physical occupation of its property nor a destruction of the
value of its property through regulation, the actions that we generally
recognize as bases of a claim for just compensation under the Fifth
Amendment.

11. We assume that the matter may be resolved expeditiously by the
Territorial Court because the District Court has already developed a
record. We trust, however, that the Territorial Court will consider the
need to make findings of fact at the appropriate stage in the case. While
the District Court disposed of the case on summary judgment, it appears
to have made findings of fact on the issue of the proper translation of
the
Danish Measure Brief which, of course, is not permitted at the summary
judgment stage.

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A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

17