the laws are, and are not of themselves laws. They are often reexamined, reversed, and qualified by the courts themselves, whenever they are found to be either defective, or ill-founded or otherwise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws.

"In all the various cases, which have hitherto come before us for decision, this court have uniformly supposed that the true interpretation of the 34th section limited its application to state laws strictly local; that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain, upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed. The law respecting negotiable instruments may be truly declared, in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. R. 882, 887, to be in a great measure, not the law of a single country only, but of the commercial world. 'Non erit alia lex Romæ, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtinebit.'

"It becomes necessary for us, therefore, upon the present occasion, to express our own opinion of the true result of the commercial law upon the question now before us. And we have no hesitation in saying, that a pre-existing debt does constitute a valuable

consideration in the sense of the general rule already stated, as applicable to negotiable instruments."

[CATRON, J., expressed no opinion upon the latter point in the case, so far as concerned instruments taken as collateral security only.]

KUHN v. FAIRMONT COAL CO.

(Supreme Court of United States, 1910. 215 U. S. 349, 30 Sup. Ct. 140, 54 L. Ed. 228.)

[Questions certified from federal Circuit Court of Appeals for Fourth Circuit. In 1889, Kuhn, a citizen of Ohio, conveyed to one Camden all the coal under a tract of land in West Virginia owned by Kuhn, granting also the right to enter said land, to remove the coal, and to make all necessary structures, ways, and openings for this purpose. Camden's interest in said coal passed to defendant, a West Virginia corporation, in January, 1906, and the latter in taking out the coal left the surface of Kuhn's land unsupported so that it fell, for which, on January 18, 1906, Kuhn sued defendant in the federal Circuit Court for West Virginia. A similar suit had been brought by one Griffin in the state courts in 1902, which was decided for the defendant by the state supreme court in November, 1905. A rehearing was granted, and on March 27, 1906, final judgment was given against Griffin. Kuhn's suit was decided against him on demurrer by the federal court on April 16, 1907, and he appealed to the Circuit Court of Appeals. Until the decision in the Griffin case there was no statute, decision, or local custom governing the question in controversy in the state. The federal appellate court certified to the Supreme Court the question whether, under these circumstances, it was bound by the decision of the state courts in the Griffin case.]

Mr. Justice HARLAN. * * * Was not the federal court bound to determine the dispute between the parties according to its own independent judgment as to what rights were acquired by them under the contract relating to the coal? If the federal court was of opinion that the coal company was under a legal obligation, while taking out the coal in question, to use such precautions and to proceed in such way as not to destroy or materially injure the surface land, was it bound to adjudge the contrary simply because, in a single case, to which Kuhn was not a party, and which was determined after the right of the present parties had accrued and become fixed under their contract, and after the injury complained of had occurred, the state court took a different view of the law? If, when the jurisdiction of the federal court was invoked, Kuhn, the citizen of Ohio, had, in its judgment, a valid cause of action against the coal company for the injury of which he complained,

was that court obliged to subordinate its view of the law to that expressed by the state court?

In cases too numerous to be here cited, the general subject suggested by these questions has been considered by this court. * * * [Here follow quotations from Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10, 27 L. Ed. 359; and Bucher v. Cheshire Ry., 125 U. S. 555, 8 Sup. Ct. 974, 31 L. Ed. 795, and citations of other cases.]

We take it, then that it is no longer to be questioned that the federal courts, in determining cases before them, are to be guided by the following rules: 1. When administering state laws and determining rights accruing under those laws, the jurisdiction of the federal court is an independent one, not subordinate to, but co-ordinate and concurrent with, the jurisdiction of the state courts. 2. Where, before the rights of the parties accrued, certain rules relating to real estate have been so established by state decisions as to become rules of property and action in the state, those rules are accepted by the federal court as authoritative declarations of the law of the state. 3. But where the law of the state has not been thus settled, it is not only the right, but the duty, of the federal court to exercise its own judgment, as it also always does when the case before it depends upon the doctrines of commercial law and general jurisprudence. 4. So, when contracts and transactions are entered into and rights have accrued under a particular state of the local decisions, or when there has been no decision by the state court on the particular question involved, then the federal courts properly claim the right to give effect to their own judgment as to what is the law of the state applicable to the case, even where a different view has been expressed by the state court after the rights of parties accrued. But even in such cases, for the sake of comity and to avoid confusion, the federal court should always lean to an agreement with the state court if the question is balanced with doubt. *

It would seem that according to those principles, now firmly established, the duty was upon the federal court, in the present case, to exercise its independent judgment as to what were the relative rights and obligations of the parties under their written contract. The question before it was as to the liability of the coal company for an injury arising from the failure of that corporation, while mining and taking out the coal, to furnish sufficient support to the overlying or surface land. Whether such a case involves a rule of property in any proper sense of those terms, or only a question of general law, within the province of the federal court to determine for itself, the fact exists that there had been no determination of the question by the state court before the rights of the parties accrued and became fixed under their contract, or before the injury complained of. In either case, the federal court was bound

under established doctrines to exercise its own independent judgment, with a leaning, however, as just suggested, for the sake of harmony, to an agreement with the state court, if the question of law involved was deemed to be doubtful. If, before the rights of the parties in this case were fixed by written contract, it had become a settled rule of law in West Virginia, as manifested by decisions of its highest court, that the grantee or his successors in such a deed as is here involved was under no legal obligation to guard the surface land of the grantor against injury resulting from the mining and removal of the coal purchased, a wholly different question would have been presented.

* * *

There are adjudged cases involving the meaning of written contracts having more or less connection with land that were not regarded as involving a rule in the law of real estate, but as only presenting questions of general law, touching which the federal courts have always exercised their own judgment, and in respect to which they are not bound to accept the views of the state courts. [Here follow discussions of Chicago v. Robbins, 2 Black, 418, 17 L. Ed. 298 (1863); Lane v. Vick, 3 How. 464, 11 L. Ed. 681 (1845); Foxcroft v. Mallett, 4 How. 353, 11 L. Ed. 1008 (1846); Russell v. Southard, 12 How. 139, 13 L. Ed. 927 (1851); Yates v. Milwaukee, 10 Wall. 497, 19 L. Ed. 984 (1871); Louisville Tr. Co. v. Cincinnati, 76 Fed. 296, 22 C. C. A. 334 (1896); Gt. So. Hotel Co. v. Jones, 193 U. S. 532, 24 Sup. Ct. 576, 48 L. Ed. 778 (1904); East Cent. Co. v. Central Eureka Co., 204 U. S. 266, 27 Sup. Ct. 258, 51 L. Ed. 476 (1907); and Brine v. Hartford Ins. Co., 96 U. S. 627, 24 L. Ed. 858 (1878).]

The question here involved as to the scope and effect of the writing given by Kuhn to Camden does not depend upon any statute of West Virginia, nor upon any rule established by a course of decisions made before the rights of parties accrued. So that the words above quoted from East Central Eureka Min. Co. v. Central Eureka Min. Co. ["The construction and effect of a conveyance between private parties is a matter as to which we follow the court of the state"] must not be interpreted as applicable to a case like the one before us, nor as denying the authority and duty of the federal court, when determining the effect of conveyances or written instruments between private parties, citizens of different states, to exercise its own independent judgment where no authoritative state decision had been rendered by the state court before the rights of the parties accrued and became fixed.

Question answered in negative.

Mr. Justice HOLMES [with whom concurred WHITE and McKENNA, JJ.], dissenting. This is a question of the title to real estate. It does not matter in what form of action it arises, the decision must be the same in an action of tort that it would be in a

writ of right. The title to real estate in general depends upon the statutes and decisions of the state within which it lies. I think it a thing to be regretted if, while in the great mass of cases the state courts finally determine who is the owner of land, how much he owns, and what he conveys by his deed, the courts of the United States, when by accident and exception the same question comes before them, do not follow what, for all ordinary purposes, is the law.

I admit that plenty of language can be found in the earlier cases to support the present decision. That is not surprising, in view of the uncertainty and vacillation of the theory upon which Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865 (1842), and the later extensions of its doctrine, have proceeded. But I suppose it will be admitted on the other side that even the independent jurisdiction of the circuit courts of the United States is a jurisdiction only to declare the law, at least, in a case like the present, and only to declare the law of the state. It is not an authority to make it. Swift v. Tyson was justified on the ground that that was all that the state courts did. But, as has been pointed out by a recent accomplished and able writer, that fiction had to be abandoned and was abandoned when this court came to decide the municipal-bond cases, beginning with Gelpcke v. Dubuque, 1 Wall. 175, 17 L. Ed. 520 (1864). Gray, Nature & Sources of the Law, §§ 535-550. In those cases the court followed Chief Justice Taney in Ohio L. Ins. & T. Co. v. Debolt, 16 How. 416, 14 L. Ed. 997 (1853), in recognizing the fact that decisions of state courts of last resort make law for the state. The principle is that a change of judicial decision after a contract has been made on the faith of an earlier one the other way is a change of the law.

The cases of the class to which I refer have not stood on the ground that this court agreed with the first decision, but on the ground that the state decision made the law for the state, and therefore should be given only a prospective operation when contracts had been entered into under the law as earlier declared. Douglass v. Pike County, 101 U. S. 677, 25 L. Ed. 968 (1880); Green County v. Conness, 109 U. S. 104, 3 Sup. Ct. 69, 27 L. Ed. 872 (1883). In various instances this court has changed its decision or rendered different decisions on similar facts arising in different states, in order to conform to what is recognized as the local law. Fairfield v. Gallatin County, 100 U. S. 47, 25 L. Ed. 544 (1879).

Whether Swift v. Tyson can be reconciled with Gelpcke v. Dubuque, I do not care to inquire. I assume both cases to represent settled doctrines, whether reconcilable or not. But the moment you leave those principles which it is desirable to make uniform throughout the United States, and which the decisions of this court tend to make uniform, obviously it is most undesirable for the