(All emphasis herein is ours.) Louisiana v. Mississippi, 202 U.S. 1, 49, 26 S.Ct. 408, 421, 50 L.Ed. 913, 930; Whiteside v. Norton, 8 Cir., 205 F. 5, 9, 45 L.R.A., N.S., 112, appeal dismissed 239 U.S. 144, 36 S.Ct. 97, 60 L.Ed. 186. Iowa v. Illinois, 147 U.S. 1, 13, 13 S.Ct. 239, 244, 37 L.Ed. 55, 59; Arkansas v. Tennessee, 246 U.S. 158, 170, 38 S.Ct. 301, 303, 62 L.Ed. 638, 646, L.R.A. 1918D 258.

* * * obviously without merit, or "because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 [ 30 S.Ct. 326, 327, 54 L.Ed. 482]; McGilvra v. Ross, 215 U.S. 70, 76-77, 80 [ 30 S.Ct. 27, 54 L.Ed. 95]; Norton v. Whiteside, 239 U.S. 144, 153 [ 36 S.Ct. 97, 60 L.Ed. 186]; Bianchi v. Morales, 262 U.S. 170 [ 43 S.Ct. 526, 67 L.Ed. 928]; Kansas v. Bradley [8 Cir.], 26 Fed. 289, 290; Harris v. Rosenberger [8 Cir.] 145 Fed. 449, 452. The tortious claims were clearly beyond the jurisdiction of this court.

The proposition for which we are here contending was by the United States Supreme Court recognized in the case of Louisiana v. Mississippi, 282 U.S. 458, 51 S.Ct. 197, 75 L.Ed. 459. In the case of Whiteside v. Norton, 205 Fed. 5, 123 C.C.A. 313, 45 L.R.A. (N.S.) 112, the same proposition was recognized and approved. Indiana v. Kentucky, 136 U.S. 479, 34 L.Ed. 329; City of St. Louis v. Rutz, 138 U.S. 226, 11 S.Ct. 357, 34 L.Ed. 941; State of Iowa v. State of Illinois, 147 U.S. 1, 37 L.Ed. 55, 13 S.Ct. 239; State of Washington v. State of Oregon, 211 U.S. 127, 53 L.Ed. 118; Missouri v. Kentucky, 11 Wall. 395, 20 L.Ed. 116.

The complaint, it is said, does not specify any provision of federal law which requires construction or application and does no more than aver a general reference to federal statutes, including the Interstate Commerce Act and the statute making criminal specified interferences with interstate railroad property. 18 U.S.C. § 412 (a); cf. Cohens v. Virginia, 6 Wheat. 264; Norton v. Whiteside, 239 U.S. 144; Niles-Bement-Pond Co. v. Iron Moulders Union, 254 U.S. 77; Gully v. First National Bank, 299 U.S. 109. Respondent and the lower courts find the jurisdictional basis generally in the duties imposed upon carriers by the Interstate Commerce Act and other federal statutes, including the criminal statute referred to above.

And the federal question averred may be plainly unsubstantial either because obviously without merit, or "because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288; McGilvra v. Ross, 215 U.S. 70, 76-77, 80; Norton v. Whiteside, 239 U.S. 144, 153; Bianchi v. Morales, 262 U.S. 170; Kansas v. Bradley, 26 F. 289, 290; Harris v. Rosenberger, 145 F. 449, 452. Passing, without inquiry, the first of these tests, a consideration of the decisions of this court rendered prior to the filing of the present bill demonstrates that the question is concluded by an application of the second test.

A mere formal statement that such question exists does not suffice. The allegations must show that "the suit is one which does really and substantially involve a dispute or controversy as to a right which depends on the construction or application of the Constitution, or some law, or treaty of the United States." American Sugar RefiningCo. v. New Orleans, 181 U.S. 277, 281; Hull v. Burr, 234 U.S. 712, 720; Norton v. Whiteside, 239 U.S. 144, 147. Properly understood, Des Moines v. Des Moines City Ry. Co., supra, is in harmony with these well-established principles.

Since 1893 a deep channel has been dredged through these waters and harbor lines have been established. According to Wisconsin's insistence, its border crosses and recrosses this channel and intersects certain docks extending from the Minnesota shore, leaving portions of them in each State. See Wisconsin v. Duluth, 96 U.S. 379; Norton v. Whiteside, 239 U.S. 144. "An Act to enable the People of Wisconsin Territory to form a Constitution and State Government, and for the Admission of such State into the Union," approved August 6, 1846, c. 89, 9 Stat. 56, described the boundary in part as follows: "Thence [with the northwesterly boundary of Michigan] down the main channel of the Montreal River to the middle of Lake Superior; thence [westwardly] through the centre of Lake Superior to the mouth of the St. Louis River; thence up the main channel of said river to the first rapids in the same, above the Indian village, according to Nicollet's map; thence due south to the main branch of the River St. Croix," etc., etc. With the boundaries described by the Enabling Act, Wisconsin entered the Union May 29, 1848 (c. 50, 9 Stat. 233).

The river's sudden abandonment of its bed left the line between the two States exactly as it existed at the time of this sudden and visible abandonment. Missouri v. Kansas, 213 U.S. 68; Missouri v. Nebraska, 196 U.S. 33; Philadelphia Co. v. Stimson, 223 U.S. 605, 624; Washington v. Oregon, 214 U.S. 205; Whiteside v. Norton, 205 Fed.Rep. 5; and other cases.Before the avulsion, the boundary line between the States followed the gradual and imperceptible shiftings of the river. What each State lost or gained by gradual and imperceptible shiftings was a permanent loss or gain except and unless these changes were undone as they were made, to wit, gradually and imperceptibly. Gradual and imperceptible changes in property rights and in boundary lines are unaffected by the fact that as the result of an avulsion land which had been lost by erosion is uncovered.

Principles articulated by this court in Commissioners of Land Office v. United States, 270 F. 110 (8th Cir. 1920), appeal dismissed, 260 U.S. 753, 43 S.Ct. 14, 67 L.Ed. 497 (1922), were quoted with approval in State v. Ecklund, 147 Neb. 508, 521-22, 23 N.W.2d 782, 789-90 (1946) and were applied in Durfee v. Keiffer, 168 Neb. 272, 280, 95 N.W.2d 618, 624 (1959), and Frank v. Smith, 138 Neb. at 392, 293 N.W. at 334-35. An even earlier eighth circuit case, Whiteside v. Norton, 205 F. 5 (8th Cir. 1913), appeal dismissed, 239 U.S. 144, 36 S.Ct. 97, 60 L.Ed. 186 (1915), was also followed in Durfee v. Keiffer. As the district court stated: "Nebraska law has relied heavily on federal law in formulating its definitions of accretion and avulsion." United States v. Wilson, 433 F. Supp. at 65.

Levering Guarrigues Co. v. Morin, 289 U.S. 103, 105-106, 53 S.Ct. 549, 550, 77 L.Ed. 1062 (1933), quoting Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 54 L.Ed. 482 (1909). See also California Water Serv. Comm'n v. Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323 (1938); Ex parte Poresky, supra note 17, 290 U.S. at 32, 54 S.Ct. 3, 78 L.Ed. 152; Bianchi v. Morales, 262 U.S. 170, 172, 43 S.Ct. 526, 67 L.Ed. 928 (1922); Norton v. Whiteside, 239 U.S. 144, 153, 36 S.Ct. 97, 60 L.Ed. 186 (1915); McGilvra v. Ross, 215 U.S. 70, 76, 77, 80, 30 S.Ct. 27, 54 L.Ed. 95 (1909). II