## F I L E D United States Court of Appeals Tenth Circuit 

### March 14, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WARREN D. NICODEMUS, Trustee of the Warren D. Nicodemus Living Trust dated August 5, 1999 and JOHN N. MORRIS, NORMA B. MORRIS, and JOHN H. BELL IRON MOUNTAIN RANCH COMPANY, on behalf of themselves and all others similarly situated,

Plaintiffs - Appellees,

v. UNION PACIFIC CORPORATION, a Utah corporation, and UNION PACIFIC RAILROAD COMPANY, a Delaware corporation,

Defendants - Appellants, and
SPRINT COMMUNICATIONS COMPANY, L.P.; QWEST COMMUNICATIONS CORPORATION; LEVEL 3 COMMUNICATIONS LLC; WILTEL COMMUNICATIONS, LLC; RAILS TO TRAILS CONSERVANCY,

Amici Curiae. Nos. 02-8016, 02-8017* After examining the briefs and the appellate record , this three-judge panel

has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. -2- APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING (D. Ct. Nos. 01-CV-009-J & 01-CV-099-J)

Submitted on the briefs: * Joseph Rebein, Shook, Hardy & Bacon, L.L.P., Kansas City, Missouri; Ron Bodinson, Jason E. Pepe, Bill J. Hays, and Chelsi K . Hayden, Shook, Hardy & Bacon, L.L.P., Overland Park, Kansas; and Stephen R . McAllister, University of Kansas School of Law, Lawrence, Kansas, for Defendants-Appellants. John B. Massopust, Zelle, Hofmann, Voelbel, Mason & Gette, LLP, Minneapolis, Minnesota; Catherine M. Colinvaux, Zelle, Hofmann, Voelbel, Mason & Gette, LLP, Waltham, Massachusetts; Kim D. Cannon, Davis & Cannon, Sheridan, Wyoming; and Jordan Lewis, Siegel, Brill, Greupner, Duffy & Foster, Milwaukee, Wisconsin, for Plaintiffs-Appellees. J. Emmett Logan, Stinson Morrison Hecker LLP, Kansa s City, Missouri, John F. Daum, O’Melveny & Myers, LLP, Los Angeles, Californ ia, Joseph E. Jones, Fraser Stryker Vaughn Meusey Olson Boyer & Bloch, O maha, Nebraska, and J. Kevin Hayes, Hall, Estill, Hardwick, Gable, Golden & Nelson, Tulsa, Oklahoma, filed and Amici Curiae brief for Sprint, Qwest, Lev el 3, and Wiltel, on behalf of Appellants. Andrea Ferster, Rails to Trails Conservancy, Washin gton, D.C., and Charles H. Montange, Seattle, Washington, filed an Amicus Curi ae brief for Rails to Trails Conservancy, on behalf of Appellee.

Before TACHA , Chief Circuit Judge, ANDERSON , and EBEL , Circuit Judges.-3-

TACHA , Chief Circuit Judge.

This case has led a somewhat tortured existence in the federal courts. The Plaintiffs-Appellees, who are Wyoming landowners, o riginally filed suit in the District of Wyoming in 2001 alleging various state law claims including trespass, unjust enrichment, and slander of title against Def endants-Appellants Union Pacific Corporation and Union Pacific Railroad Comp any (“Union Pacific”). On December 6, 2001, the District Court sua sponte dis missed Plaintiffs’ causes of action for lack of subject matter jurisdiction unde r either 28 U.S.C. §§ 1331 or 1332. Despite the fact that it ostensibly prevaile d, Union Pacific filed a motion under Fed. R. Civ. P. 59(e) requesting the DistrictCourt to alter or amend its ruling that it lacked subject matter jurisdiction u nder § 1331. The District Court denied the motion. Union Pacific then appealed the ruling to this Court. This panel affirmed, concluding that federal-question jurisdiction over state law claims existed only when Congress provided a federal cause of action orintended to provide a federal forum for resolution of the dispute. Nicodemus v. Union Pac. Corp. , 318 F.3d 1231, 1238 (10th Cir. 2003) (“Nicodemus I ”) (citing Merrell Dow Pharm., Inc. v. Thompson , 478 U.S. 804, 814 (1986)). Union Pacific sought rehearing en banc, which was granted on April 22, 2003.1 We note that though both parties now agree that the District Court had

jurisdiction—Plaintiffs suggest diversity jurisdict ion is proper while Union Pacific suggests federal-question jurisdiction is p roper—we must nevertheless find jurisdiction as it “cannot be conferred upon a federal court by consent, (continued...) -4- Before the en banc argument took place, however, th e parties filed a joint motion asking that the appellate proceedings be abated pending the outcome of class action settlement proceedings in the Seventh Circuit that might moot the issues on appeal. On August 19, 2003, this Court g ranted the motion. Two years later, in 2005, the Seventh Circuit vacated the nat ionwide class certification, see Smith v. Sprint Commc’ns Co. , 387 F.3d 612 (7th Cir. 2004), cert. denied, 125 S. Ct. 2939 (2005), and thus the settlement proceeding s that could have mooted the rehearing en banc fell through. The parties then a dvised this Court that they were ready to proceed with the previously scheduled rehe aring. In the interim, the Supreme Court issued its decisi ons in Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg. , 125 S. Ct. 2363 (2005) and Exxon Mobil Corp. v. Allapattah Servs., Inc. , 125 S. Ct. 2611 (2005), which addressed the important jurisdictional questions at issue in this case. In response to these cases, Plaintiffs filed a motion requesting this Co urt to reconsider its decision to rehear the case en banc. Plaintiffs asked this Cou rt to reinstate the panel’s opinion on federal-question jurisdiction, but to re mand to the District Court on the basis that diversity jurisdiction existed. 1 Union Pacific opposed the motion.1 (...continued)

inaction or stipulation.” Basso v. Utah Power & Light Co. , 495 F.2d 906, 909 (10th Cir. 1974).

2 We reinstate that portion of our prior opinion dete rmining our appellate jurisdiction over the District Court’s order dismis sing the case in Union Pacific’s favor. See Nicodemus I, 318 F.3d at 1234–1235.

3 Plaintiffs argue that the Supreme Court’s recent de cision in Exxon Mobil permits the District Court to exercise diversity ju risdiction over the dispute. The District Court concluded, however, that Plaintiffs did not meet the amount-incontroversy requirement for diversity jurisdiction, and neither Plaintiffs nor Union Pacific appealed that ruling. We therefore d eem the issue waived. See Tulengkey v. Gonzales , 425 F.3d 1277, 1279 n.1 (10th Cir. 2005). In anyevent, it is not clear that Exxon Mobilwould have any effect on Plaintiffs’ claim. In Exxon Mobilthe Court held that “where the other elements of j urisdiction are present and at least one named plaintiff in the act ion satisfies the amount-in-controversy requirement,” a federal courtmay exercise supplemental jurisdiction over the claims of other plaintiffs. 125 S. Ct. at 2615. Here, the District Court concluded that no plaintiff could meet the amount-in-controversy requirement. See Nicodemus v. Union Pac. Corp. , 204 F.R.D. 479, 488 n.7 (D. Wyo. 2001). -5- We vacated our decision to rehear the case en banc and referred the case back to the original panel to consider the effect of Grable & Sons and Exxon Mobilon the outcome of the proceedings. We take jurisdiction u nder 12 U.S.C. § 1291 2 and, in light of Grable & Sons , 3 we now REVERSE.
I. BACKGROUND District courts have “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United S tates.” 28 U.S.C. § 1331. “A case arises under federal law if its ‘well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff’s right to relief4 There is one exception to the well-pleaded complain t rule: complete

preemption. In Metropolitan Life Ins. Co. v. Taylor , the Supreme Court recognized that “Congress may so completely preempta particular area that any civil complaint raising this select group of claims is necessarily federal in character.” 481 U.S. 58, 63-64 (1987). This excep tion is not implicated in this case. -6- necessarily depends on resolution of a substantial question of federal law.’” Morris v. City of Hobart , 39 F.3d 1105, 1111 (10th Cir. 1994) (quoting Franchise Tax Board v. Constr. Laborers Vacation Tr ust , 463 U.S. 1, 27-28 (1983). Thus, even though a plaintiff asserts onlyclaims under state law, federalquestion jurisdiction may be appropriate if the state-law claims implicate significant federal issues. Over the last century, several principles have deve loped that guide federal courts in determining whether they have jurisdictio n over a state-law claim. First, the well-pleaded complaint rule requires that “the federal question giving rise to jurisdiction must appear on the face of the complai nt.” 4 Karnes v. Boeing Co. , 335 F.3d 1189, 1192 (10th Cir. 2003). This rule “m akes the plaintiff the master of the claim; he or she may avoid federal jurisdict ion by exclusive reliance on state law.” Caterpillar Inc. v. Williams , 482 U.S. 386, 392 (1987). The well-pleaded complaint rule also means that fed eral-question jurisdiction may not be predicated on a defense that raises federal issues. Merrell
Dow , 478 U.S. at 808. Therefore, a “plaintiff’s antic ipation of a defense based on-7-

federal law is not enough to make the case ‘arise u nder’ federal law[;] [n]or is a defendant’s assertion of a defense based on federal law . . . a proper basis for removal.” Schmeling v. NORDAM , 97 F.3d 1336, 1339 (10th Cir. 1996). Further, a plaintiff may not circumvent federal jurisdiction by omitting federal issues that are essential to his or her claim. See id. at 1345 n.2. Even if a federal question appears on the face of awell-pleaded complaint, federal jurisdiction is not automatic. It is by no w axiomatic that “federal jurisdiction demands not only a contested federal i ssue, but a substantial one, indicating a serious federal interest in claiming t he advantages thought to be inherent in a federal forum.” Grable & Sons , 125 S. Ct. at 2367. Finally, even when the state action discloses a contested an d substantial federal question, the exercise of federal jurisdiction is s ubject to a possible veto. For the federal issue will ultimately qualify for afederal forum only if federal jurisdiction is consistent with congression al judgment about the sound division of labor between state and federal c ourts governing the application of § 1331. Id.
In Merrell Dow , the Court was confronted with a typical negligenc e action in which the plaintiffs alleged that the defendant drug manufacturer’s violation of a Food Drug and Cosmetic Act (“FDCA”) labeling prov ision raised a rebuttable presumption of negligence. 478 U.S. at 805–06. Si nce Congress did not include a private remedy for misbranding violations under t hat provision of the FDCA, the Court concluded that Congress implied that “the presence of a claimed-8-

violation of the statute as an element of a state c ause of action is insufficiently ‘substantial’ to confer federal-question jurisdicti on.” Id. at 814. After the Court’s decision in Merrell Dow , the circuits were divided over the precise effect the case had on federal jurisdic tion over state-law claims. Several circuits, including this one, required a fi nding of a federal cause of action to support the assertion of federal-question jurisd iction over state-law claims. See, e.g., Nicodemus I, 318 F.3d at 1238; Zubi v. AT&T Corp. , 219 F.3d 220, 223 n.5 (3d Cir. 2000); Seinfeld v. Austen , 39 F.3d 761, 764 (7th Cir. 1994). These courts relied on broad language in Merrell Dow suggesting that “[i]n the absence of a federal private right of action ‘it would flou t congressional intent to provide a private federal remedy for the violation of the f ederal statute . . . [and] it would similarly flout, or at least undermine, congression al intent to conclude that the federal courts might nevertheless exercise federal- question jurisdiction.’” Nicodemus I, 318 F.3d at 1237 (quoting Merrell Dow , 478 U.S. at 812) (alterations in original). In Grable & Sons , the Court granted certiorari to address this jurisdictional question. 125 S. Ct. at 2366. The Court clarified that Merrell Dow cannot be read “as overturning decades of precedent . . . and converting a federal cause of action from a sufficient condition for federal-question jurisdict ion into a necessary one.” Id. at 2369–70 (footnote omitted). Rather, the absence of a private right of action is5 The Court acknowledged that Merrell Dow characterized the absence of a

private right of action as a consideration in the a ssessment of substantiality, see Grable & Sons , 125 S. Ct. at 2370, but it explained that the “pr imary importance” of this factor as an ingredient in the delicate det ermination of “Congress’s conception of the scope of [federal-question] juris diction,” was that allowing jurisdiction when Congress had not intended a private right of action would have seriously disrupted the balance of labor between st ate and federal courts, see id. -9- “relevant to, but not dispositive of, the ‘sensitiv e judgments about congressional intent’ that § 1331 requires.” Id. at 2370. It further explained that in Merrell
Dow , the absence of a federal private right of action was fatal because “exercising federal jurisdiction over a state misbranding actio n would have attracted a horde of original filings and removal cases raising otherstate claims with embedded federal issues.” Id. In this way, Merrell Dow is consistent with the Court’s prior holdings because it was based in part on a determin ation of “Congress’s intended division of labor between state and federal courts. ” 5 Id. at 2371. The Court then reaffirmed its prior holdings, stating that the que stion is whether the “state-law claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturb ing any congressionally approved balance of federal and state judicial resp onsibilities.” Id. at 2368. With this framework in mind, we turn to the facts o f this case.
II. DISCUSSION A. Facts Plaintiffs in this case are Wyoming landowners. Un ion Pacific was granted-10-

railroad rights-of-way over Plaintiffs’ property un der numerous federal land-grant statutes, which dated from 1852 to 1875. The dispu te between the parties arose when Union Pacific entered into agreements with var ious telecommunications providers in which Union Pacific “licensed” to them the right to install and maintain fiber-optic cables in the rights-of-way ov er Plaintiffs’ land. Union Pacific receives revenue from these license agreeme nts. Plaintiffs filed suit in the District of Wyoming, a lleging Union Pacific’s actions exceeded the scope of Union Pacific’s right s under the federal land-grant statute. They claimed that though Union Pacific ha s an undisputed right to conduct railroad operations along the right of way, Plaintiffs retain the servient tenement in the underlying land for all other purpo ses. Mr. Nicodemus, as trustee for property owned by the Warren D. Nicodemus Livin g Trust, sought various forms of relief, including: (1) damages for trespas s; (2) damages for unjust enrichment; (3) an accounting and disgorgement of r ents and profits; (4) a permanent injunction preventing Union Pacific from further conveying any claimed interest in the land; and (5) a declaratory judgment establishing, inter alia , that Union Pacific’s interest in the land is limi ted to that use necessary for the operation of a railroad. The Morris plaintiffs , including John H. Bell Iron Mountain Ranch Company, advanced similar claims, an d in addition, requested the following: (1) damages for slander of title; (2 ) damages for inverse6 In Nicodemus I, we assumed without deciding that Plaintiffs’ clai ms

satisfied the well-pleaded complaint rule, see 318 F.3d at 1236, but acknowledged that for “at least some of plaintiffs’ claims, we m ight need to consider Union Pacific’s rights as part of plaintiffs’ prime facie case, to determine the extent to which Union Pacific’s right-of-way circumscribe pla intiffs’ fee interests,” id. at 1236 n.5.

7 We note that we have previously construed Union Pac ific’s rights under section 2 of the Pacific Railroad Act of 1862, invo lving Mr. Nicodemus’s land, as “the grant of the right-of- way, and . . . [not a] convey[ance] [of] title to the servient estate underlying the right-of-way.” Energy Transp. Sys., Inc. v. Union Pac. R.R. Co. , 606 F.2d 934, 937 (10th Cir. 1979). -11- condemnation; and (3) an injunction requiring Union Pacific to remove the existing fiber optic cables. B. Federal-Question Jurisdiction Our starting point is to determine whether the well -pleaded complaint raises a disputed issue of federal law, the resolution of which is necessary to grant the relief Plaintiffs seek. 6 Plaintiffs’ claims are founded in state law, but, as discussed above, a plaintiff may not circumvent fed eral jurisdiction by omitting federal issues that are essential to his or her cla im. See Schmeling , 97 F.3d at 1345 n.2. All of Plaintiffs’ claims hinge on wheth er Union Pacific’s use of the right-of-way has exceeded the purpose for which it was granted. 7 Cf. Markstein v. Countryside I, LLC , 77 P.3d 389, 398 (Wyo. 2003) (“An easement is def ined as ‘an interest in land which entitles the easement ho lder to a limited use or enjoyment over another person’s property.’” (quotin g Restatement of Property § 450(a) (1944)). To construe the scope of a right-o f-way easement, a court must-12-

look to the language of the easement to determine t he intent of the parties. Id. ; see also Edgcomb v. Lower Valley Power and Light, I nc. , 922 P.2d 850, 854 (Wyo. 1996) (stating that when an easement is obtai ned pursuant to a grant, the extent of the right depends upon the language of th e grant). Thus, the first step in resolving the claims against Union Pacific requires a court to look at the vehicle by which Union Pacific obtained the right-of-way—in this case, the federal-land grant statutes. Plaintiffs argue, however, that the federal issue o nly arises as a defense to their claims and thus it is an inappropriate basis on which to assume federalquestion jurisdiction. On the contrary, to prove t heir action for unjust enrichment, for example, Plaintiffs must show not o nly that Union Pacific was enriched, but that “the underlying circumstances, a s between the two parties, . . . [is] such that the enrichment is unjust.” Landeis v. Nelson , 808 P.2d 216, 218 (Wyo. 1991). Plaintiffs’ specific allegations of u njust enrichment are derived not from the alleged trespass, but from misuse of the r ight-of-way. The Morrises’ complaint states that Union Pacific was unjustly en riched by its “unlawful use and occupancy of . . . plaintiffs’ . . . land and the r etention of rents and other compensation arising from the unlawful use and occupancy of the right-of-way.” Appx. 66. The Nicodemuses allege that “under the l aws of the United States” the right-of-way is for railroad purposes and Union Pac ific “has no ownership or8 If any one claim within Plaintiffs’ complaint suppo rts federal question

jurisdiction, a federal court may assert jurisdicti on over all the claims, including any alleged state-law claims, arising from the same core of operative facts. See 28 U.S.C. § 1367; City of Chicago v. International College of Surgeon s , 522 U.S. 156, 164 (1997). We also note, however, that the M orris plaintiffs’ slander of title claim necessarily raises a disputed federal i ssue. In Wyoming, slander of title is defined as “a false and malicious statemen t made in disparagement of a person’s title to real or personal property, or of some right of his causing him special damage.” Sannerud v. Brantz, 879 P.2d 341, 344 (Wyo. 1994). To prove that Union Pacific’s asserted right to the propertyis false the Morrises will have to prove that it has exceeded the scope of the righ t-of-way. See, e.g., Hopkins v. Walker , 244 U.S. 486, 490 (1917) (action to remove cloud on title raises federal issue because “invalidity of the instrument or reco rd sought to be eliminated as a cloud upon the title are essential parts of the pla intiff’s cause of action ”). -13- possessory interest in or right to exercise dominio n and control over these rights of way beyond that which is necessary for the operation of a railroad.” Appx. 42. The complaint further alleges that Union Pacific ha s “[w]rongfully claim[ed] an ownership or possessory interest . . . beyond that which is necessary for the limited purpose of operating a railroad over the la nds on which [it] currently . . . has a right-of-way . . . .” Appx. 43. Finally it states that by licensing to telecommunications companies the right to bury fibe r optic cables, it has “unlawful[ly] use[d] and occup[ied] their land,” de priving them of the “rents [and] profits.” To prove that Union Pacific acted unlawfully, Plaintiffs must establish that the right-of-way prohibited the use to which it was put. The federal issue, therefore, arises in Plaintiffs’ case-in-chi ef, not by way of defense. 8 See Drawhorn v. Qwest Commc’ns Int’l, Inc., 121 F. Supp. 2d 554, 564 (E.D. Tex.-14-

2000) (plaintiffs must prove as part of case-in-chi ef that the railroads had no right to grant easements to telecommunications company to lay fiber optic cables on property); Browning v. MCI WorldCom Network Servs. , 2002 WL 500584 (D. Kan. 2002) (unpublished) (same); In re AT&T Fiber Optic Cable Installation Litigation , 2001 WL 1397295 (S.D. Ind. 2001) (unpublished) (s ame); see also Grable &Sons , 125 S. Ct. 2363 (quiet title action required plai ntiff to prove that he was not given proper notice of seizure under fed eral statute); Kan. Pac. Ry. Co. v. Atchison, Topeka & Santa Fe R.R. Co. , 112 U.S. 414 (1884) (quiet title action depends on construction given to federal lan d grant statutes); Municipality of San Juan v. Corporacion Para El Fomento Economic o De La Ciudad Capital , 415 F.3d 145 (1st Cir. 2005) (taking jurisdiction o ver breach of contract action when breach depended on construction of federal law ). The presence of a federal issue, however, is not ne cessarily “a password opening federal courts to any state action embracin g a point of federal law.” Grable & Sons , 125 S. Ct. at 2368. Instead, we next ask whetherthe federal issue is one that is “actually disputed and substantial, [and] which a federal forum may entertain without disturbing any congressionally ap proved balance of federal and state judicial responsibilities.” Id. As an initial matter, it is clear that the federal question is actually disputed. In fact, constructi on of the federal land grant appears to be the only legal or factual issue conte sted in the case. Next, in9 Under the Abandoned Railroad Right of Way Act, 43 U .S.C. § 912,

enacted in 1922, land given by the United States fo r use as a railroad right-of-way in which the United States retained a right of reve rter under N. Pac. Ry. Co. v. Townsend, 190 U.S. 267 (1903), must be turned into a public highway within one year of the railroad company’s abandonment or be gi ven to adjacent landowners. Subsequently, Congress enacted the National Trails System Improvement Act of 1988, 16 U.S.C. § 1248(c), under which those lands not converted to public highways within one year of abandonment revert backto the United States, not (continued...) -15- determining whether the federal question is a subst antial one, courts should inquire into whether resolution of the issue in fed eral court would benefit from “the advantages thought to be inherent in a federal forum.” Id. at 2367. A case should be dismissed for want of a substantial feder al question only when the federal issue is “(1) wholly insubstantial or obvio usly frivolous, (2) foreclosed by prior cases which have settled the issue one way oranother, or (3) so patently without merit as to require no meaningful consideration.” Wiley v. Nat’l Collegiate Athletic Ass’n , 612 F.2d 473, 477 (10th Cir. 1979) (citing Hagans v.
Lavine , 415 U.S. 528, 539–41 (1974)). Union Pacific argues that there is a substantial fe deral interest in the railroad rights-of-way held by Union Pacific. In s upport of this contention, it notes the following: (1) the federal government’s s ubsidization of the construction of a transcontinental railroad through the rights-of-way grants; (2) the federal government’s limited right of reverter in the railroad rights-of-way,

see 16 U.S.C. § 1248(c); 9 and (3) the applicability of federal common law in9 (...continued)

adjacent private landowners. For a general overvie w of this statutory scheme, see Mauler v. Bayfield County , 309 F.3d 997, 999 (7th Cir. 2002). -16- construing the federal land-grant statutes, see N. Pac. Ry. Co. v. Townsend, 190 U.S. 267, 270–71 (1903) (“‘The courts of the UnitedStates will construe the grants of the general government without reference to the rules of construction adopted by the states for their grants. . . .’”). We agree that the contested interpretation of the f ederal land-grant statutes as between these parties involves a substantial fed eral issue. Indeed, we acknowledged that these were “considerable federal interests” in Nicodemus I. 318 F.3d at 1237. The statutes at issue granted to Union Pacific the right to construct a railroad and telegraph line in order to “secure the safe and speedy transportation of the mails, troops, munitions of w ar, and the public stores” to the
West. See, e.g. , Act of July 1, 1862, ch. 120, § 3, 12 Stat. 489. Under subsequently enacted statutes, the United States ha s a reversionary interest in the lands when no longer used for their designated purp oses. See 43 U.S.C. §§ 912, 913 and 16 U.S.C. § 1248(c). Thus, the government has a direct interest in the determination of property rights granted to the rai lroad. See Grable & Sons , 125 S. Ct. at 2368 (federal issue is substantial becaus e “[t]he Government . . . has a direct interest in the availability of a federal fo rum to vindicate its own administrative action, and [because] buyers (as wel l as tax delinquents) may find-17-

it valuable to come before judges used to federal t ax matters”). Moreover, federal common law applies to resolve the dispute. Though the existence of a federal cause of action would have provided additional evid ence relevant to our calculus, see id. at 2370, it is not dispositive, especially since Co ngress did not grant to federal courts original jurisdiction over federal-q uestion cases until 1875, see Judiciary Act of 1875, §§ 1, 2, 18 Stat. 470. Finally, we are confident that providing a federal forum for the resolution of this issue will not disrupt “the sound division of labor between state and federal courts.” We acknowledge that the type of p roperty dispute at issue has been the recent subject of several proposed class a ctions. See, e.g., Smith , 387 F.3d 612; Isaacs v. Sprint Corp. , 261 F.3d 679 (7th Cir. 2001). It will nonetheless be the rare state trespass and unjust e nrichment case that so uniquely turns on a critical matter of federal law. Thus, f ederal jurisdiction to resolve genuine disagreement over the scope of a right gran ted to the railroads pursuant to federal law “will portend only a microscopic effecton the federal-state division of labor.” Grable & Sons , 125 S. Ct. at 2368. In sum, “[g]iven the absence of threatening structu ral consequences” and the importance for the availability for a federal f orum, “there is no good reason to shirk from federal jurisdiction over the dispositiv e and contested federal issue at the heart of [this] state-law . . . claim.” Id. at 2371.-18- III. CONCLUSION For the foregoing reasons, the judgment of the Dist rict Court dismissing the action for lack of subject matter jurisdiction is REVERSED

.