UNITED STATES REPORTS VOLUME 152 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1893 J. C. BANCROFT D$VIS REPORTER THE BANKS LAW PUBLISHING COMPANY 21 Murray Street, NEW YORK, 1899. Copybight, M04, By BANKS & BROTHERS. JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. MELVILLE WESTON FULLER, Chief Justice. STEPHEN JOHNSON FIELD, Associate Justice. JOHN MARSHALL HARLAN, Associate Justice. HORACE GRAY, Associate Justice. DAVID JOSIAH BREWER, Associate Justice. HENRY BILLINGS BROWN, Associate Justice. GEORGE SHIRAS, Jr., Associate Justice. HOWELL EDMONDS JACKSON, Associate Justice. EDWARD DOUGLASS WHITE,1 Associate Justice. RICHARD OLNEY, Attorney General. LAWRENCE MAXWELL, Jr., Solicitor General. JAMES HALL McKENNEY, Clerk. JOHN MONTGOMERY WRIGHT, Marshal. * ili 'Mr. Justice White’s commission is dated February 19, 1894. He took the oath of office in open court, March 12, 1894, and at once took his seat upon the bench. ili TABLE OF CONTENTS. TABLE OF CASES REPORTED. PAGE Albany Perforated Wrapping Paper Company, Morgan Envelope Company v.....................425 Alger, United States v...................... 384 Am Ende, Seabury v...........................561 Amy and Silversmith Mining Company, King v. ., . 222 Applegate, Dowell®...........' 327 Arkansas Central Railway Company, McKittrick v. .473 Armstrong, Western National Bank -w. 346 Arthur, Israel v....... • 355 Bank of Commerce, Tennessee v. .... 454 Bashaw, United States v. ...... 436 Belding Manufacturing Company v. Challenge Corn Planter Company..........................100 Berbecker v. Robertson.......................373 Bogle v. Magone..............................623 Booth, Northern Pacific Railroad Company v. . . 671 Boston, Worthington v........................695 Bowlby, Shively v..............................1 Burck v. Taylor..............................634 Caha v. United States........................211 Caldwell, Hutchinson Investment Company v. . 65 Carne v. Russ .....................• • 250 Challenge Corn Planter Company, Belding Manufacturing Company ..........................100 Chapman, Robertson v......... 673 Chicago, Snell v.............................191 Cincinnati Siemens-Lungren Gas Illuminating Company v. Western Siemens-Lungren Company . . . 200 v vi TABLE OF CONTENTS. Table of Cases Reported. FÀOX City Bank of Fort Worth v. Hunter .... 512 Clarke, Louisville, Evansville and St. Louis Railroad Company v. ..........................................230 Coleman v. United States...............................96 Colorado Oil Company, Gumaer v.........................88 Corinne Mill, Canal and Stock Company v. Toponce . 405 Courtnay, Miller v....................................172 Covert, Sargent v.....................................516 Daniels, Union Pacific Railway Company v. . . . 684 Davis v. Mercantile Trust Company .... 590 Dealy v. United States................................539 Dowell v. Applegate...................................327 Duncan v. Missouri.................................. 377 Dunlap v. Schofield............................ . 244 El Paso, El Paso Water Company v......................157 El Paso Water Company v. El Paso .... 157 Equitable Life Assurance Society, Maclay v. . . . 499 Everett, Northern Pacific Railroad Company v. . . 107 Flint and Père Marquette Railroad Company, Michigan v............................................ 363 Grinnan, Halstead v...................................412 Gumaer v. Colorado Oil Company.........................88 Halstead v. Grinnan............................ . 412 Hardt v. Heidweyer....................................547 Heidweyer, Hardt v...................................' 547 Hendricks, Schoenfeld v...............................691 Herrman v. Robertson..................................521 Hunter, City Bank of Fort Worth v.....................512 Huntley v. Kingman....................................527 Hutchinson Investment Company v. Caldwell . . 65 Israel v. Arthur......................................355 Jacksonville, Tampa and Key West Railway Company, Plant Investment Company v.........................71 TABLE, OF CONTENTS. vii Table of Cases Reported. PAGE Johnson Company v. Wharton...........................252 Kansas City and Southern Railway Company, Schlesinger v. . .......................444 Keokuk and Western Railroad Company u Missouri . 301 Keokuk and Western Railroad Company -y. Scotland County.......................................317, 318 King v. Amy and Silversmith Mining Company . . 222 Kingman, Huntley v........................ . . 527 Lawton v. Steele.....................................133 Lazarus v. Phelps.....................................81 Louisville, Evansville and St. Louis Railroad Company v. Clarke...........................................230 McDonald, Union Pacific. Railway Company v. . . 262 McKittrick v. Arkansas Central Railway Company . 473 Maclay v. Equitable. Life Assurance Society . . 499 Maddock v. Magone....................................368 Magone, Bogle.u.................................... 623 Magone, Maddock v. . . . . . . . 368 Main, The, v. Williams...............................122 Manuel v. Wulff......................................505 Mercantile Trust Company, Davis v....................590 Michigan v. Flint and Pere Marquette Railroad Company ..............................................363 Miller v. Courtnay...................................172 Missouri, Duncan v. . ■..............................377 Missouri, Keokuk and Western Railroad Company v. . 301 Missouri, Kansas and Texas Railway Company y. Roberts ..............................................114 Montana Company v. St. Louis Mining and Milling Company ................................. \ . . 160 Morgan Envelope Company v. Albany Perforated Wrapping Paper Company.................................425 Murphy v. Packer.....................................398 North Chicago Rolling Mill Company v. St. Louis Ore and Steel Company..................................596 viii TABLE OF CONTENTS. Table of Cases Reported. FAGS Northern Pacific Railroad, Prosser v.................. 59 Northern Pacific Railroad Company v. Booth . . 671 Northern Pacific Railroad Company v. Everett . . 107 Northern Pacific Railroad Company, United States v. . 284 Packer, Murphy v......................................398 Phelps, Lazarus v......................................81 Phelps, Rowe v........................ . . . 87 Plant Investment Company v. Jacksonville, Tampa and Key West Railway Company . . . . .71 Presson v. Russell....................................577 Prosser v. Northern Pacific Railroad .... 59 Roberts, Missouri, Kansas and Texas Railway Company v.............................................114 Robertson, Berbecker v.............................373 Robertson v. Chapman..................................673 Robertson, Herrman v..................................521 Rowe v. Phelps.........................................87 Russ, Carne v.........................................250 Russell, Presson v.............................. . 577 Russell, Saltonstall v................................628 St. Louis and San Francisco Railway Company v. Schumacher .............................................77 St. Louis Mining and Milling Company, Montana Company v.............................................160 St. Louis Ore and Steel Company, North Chicago Rolling Mill Company v.................................596 Saltonstall v. Russell................................628 Sargent v. Covert.....................................516 Sarlls v. United States...............................570 Schlesinger v. Kansas City and Southern Railway Company...........................................444 Schlesinger, Seeberger v..............................581 Schoenfeld v. Hendricks...............................691 Schofield, Dunlap v...................................244 Schumacher, St. Louis and San Francisco Railway Company v. . 77 TABLE OF CONTENTS. ix Table of Cases Reported. Scotland County, Keokuk and Western Railroad Company -v......................................317, 318 Seabury v. Am Ende ...................................561 Seeberger v. Schlesinger..............................581 Seley, Southern Pacific Company v.....................145 Shea, United States v. ...............................178 Shively v. Bowlby.......................................1 Snell v. Chicago......................................191 Southern Pacific Company v. Seley .... 145 Stahl, United States v................................384 Steele, Lawton v......................................133 Taylor, Burck v..................................... 634 Tennessee v. Bank of Commerce.........................454 Tennessee v. Union and Planters’ Bank . . . 454 Toponce, Corinne Mill, Canal and Stock Company v. . 405 Union and Planters’ Bank, Tennessee v. . . . 454 Union Pacific Railway Company v. Daniels . . . 684 Union Pacific Railway Company v. McDonald . . 262 United States v. Alger................................384 United States v. Bashaw...............................436 United States, Caha v.................................211 United States, Coleman v...............................96 United States, Dealy v................................539 United States v. Northern Pacific Railroad Company. 284 United States, Sarlls v...............................570 United States v. Shea.......................... . 178 United States v. Stahl................................384 Western National Bank v. Armstrong . . . 346 Western Siemens-Lungren Company, Cincinnati Siemens- Lungren Gas Illuminating Company v. . . . 200 Wharton, Johnson Company v............................252 Williams, The Main v..................................122 Worthington v. Boston.................................695 Wulff, Manuel v.......................................505 TABLE OF CASES CITED IN OPINIONS. PAGE Account of District Attorney, In re, 23 Fed. Rep. 26 443 Adams County v. Burlington & Missouri Railroad, 112 U. S. 123 362, 368 Aiken®. Manchester Print Works, 2 Cliff. 435 435 Alabama «. Georgia, 23 How. 505 25 Aline, The, 1 W. Rob. Ill 126 Allen v. Baltimore & Ohio Rail- road, 114 U. S. 311 472 Allen v. Deacon, 10 Sawyer, 210 250 Allen v. St. Louis Bank, 120 U. S. 20 586 Aloe v. Churchill, 44 Fed. Rep. 50 589 American Cutlery Co. v. Joseph, 44 Ill. App. 194 557 American Dock Co. «. Trustees of Public Schools, 12 Stewart, (39 N. J. Eq.) 409 23 American Ins. Co. v. Canter, 1 Pet. «11 48 American Net & Twine Co. v. Worthington, 141 U. S. 468 626 American Print Works v. Law- rence, 21 N. J. Law, 248; 23 N. J. Law, 590 140, 142 Ames «.Kansas, 111 U. S. 449 460,468 Anderson County Commissioners «. Beal, 113 U. S. 227 284 Andulasian, The, L. R. 3 P. D. 182 132 Appel «. Buffalo, N. Y. &c. Rail- road, 111 N. Y. 550 155 Applegate ®. Dowell, 15 Ore. 513; 17 Ore. 299 334 Arkansas «. Little Rock, Mis- sissippi & Texas Railway, 31 Ark. 701 494 Arkansas Valley Smelting Co. v. Belden Mining Co., 127 U. S. 379 202, 651, 670 Armstrong «. Stanage, 37 Fed. Rep. 508 354 Armstrong «. United States, 13 Wall. 154 222 PAGE Arnold «. Elmore, 16 Wis. 536 40 Arnold «. Mundy, 1 Halsted, (6 N. J. Law,) 1 16 Arnson «. Murphy, 109 U. S. 238; 115 U. S. 579 633, 693 Arthur ®. Butterfield, 125 U. S. 70 524 Arthur «. Fox, 108 U. S. 125 523 Arthur «. Israel, 15 Col. 147 361 Arthur «. Morgan, 112 U. S. 495 525 Aspinwall «. Daviess County, 22 How. 364 495 Astor «. Union Insurance Co., 7 Cowen, 202 585 Atherton «. Sherwood, 15 Minn. 221 171 Atlantic &c. Railroad «. St. Louis, 66 Mo. 228 305 Atlee «. Packet Co., 21 Wall. 389 41, 64 Attorney General «. Chambers, 4 D., M. & G. 206; 4 D. & J. 55 13 Attorney General «. Emerson, (1891) App. Cas. 649 13 Attorney General «. Johnson, 2 Wilson Ch. 87 13 Attorney General «. Parmeter, 10 Price, 378 13 Attorney General «. Richards, 2 Anst. 603 13 Attorney General «. Terry, L. R. 9 Ch. 425 13 Austin e. Murray, 16 Pick. 121 138 Bachrack «. Norton, 132 U. S. 337 460, 468 Badger «. Badger, 2 Wall. 87 559 Badger «. Cusimano, 130 U. S. 39 633 Bailey «. Philadelphia, Wilmington & Baltimore Railroad, 4 Harrington, (Del.,) 389 23 Baltimore «. McKim, 3 Bland, 453 24 Baltimore & Ohio Railroad «. Baugh, 149 U. S. 368 689 Bank of Leavenworth «. Hunt, 11 Wall. 391 535 Xi xii TABLE OF CASES CITED. PAGE Bank of the United States v. Moss, 6 How. 31 339 Barbier v. Connolly, 113 U. S. 27 136 Barnes v. Straus, 9 Blatch. 653 433 Barney v. Dolph, 97 U. S. 652 51 Barney v. Keokuk, 94 U. S. 324 14, 41, 42, 44, 45 Barry v. Edmunds, 116 U. S. 550 472 Bashaw v. United States, 47 Fed. Rep. 40 443 Beaupré v. Noyes, 138 U. S. 397 362 Beck v. Burdett, 1 Paige, 305; 8. C. 19 Am. Dec. 436 538 Beecher v. Wetherby, 95 U. S. 517 122 Belk v. Meagher, 104 U. S. 279 511 Bellefontaine & Indiana Railroad v. Snyder, 18 O. St. 399 278 Benner v. Porter, 9 How. 235 48 Bennett v. Griffiths, 30 L. J. N. S. Part 2, Q. B. 98 166 Bennett v. Railroad Co., 102 U. S. 577 269 Bennitt v. Whitehouse, 28 Beav. 119 166 Bernier v. Bernier, 147 U. S. 242 69 Berry v. Parkes, 3 Sm. & Marsh. 625 504 Bickett v. Morris, L. R. 1 H. L. Sc. 47 31 Birdsall v. Coolidge, 93 U. S. 64 205 Birdsell v. Shaliol, 112 U. S. 485 432 Bissell v. Spring Valley Town- ship, 124 U. S. 225 343 Blair v. Gibbes, 17 How. 232 668 Blakesley v. Whieldon, 1 Hare, 176 166 Blakey’s Appeal, 7 Penn. St. 449 532 Bland v. Muncaster, 24 Miss. 62 ; 8. C. 57 Am. Dec. 162 504 Blasier v. Miller, 10 Hun, 435 140 Bloomer v. McQuewan, 14 How. 539 432 Bloomer v. Millinger, 1 Wall. 340 432 Blundell v. Catterall, 5 B. & Aid. 268 13 Bock v. Perkins, 139 U. S. 628 460, 468 Bond v. Dustin, 112 U. S. 604 630 Bond v. Wool, 107 No. Car. 139 25 Borland v. Missouri Railroad, 36 Mo. 484 278 Börs ». Preston, 111 U. S. 252 340 Boston ». Lecraw, 17 How. 426 19 Boston ». Richardson, 13 Allen, 146 ; 105 Mass. 351 19 Boston Type Co. ». Mortimer, 7 Pick. 166; 8. C. 19 Am. Dec. 266 620 Bowlby ». Shively, 22 Ore. 410 52 54 55 57 Brashear ». West, 7 Pet. 608 532, 667 PAGE Brenham ». Brenham Water Works Co., 67 Tex. 542 158 Brig Cynthia, 1 Pet. Adm. 203 129 Brooks ». Martin, 2 Wall. 70 668 Brown ». Belmarde, 3 Kansas, 41 69 Brown «. Harris, 2 Gray, 359 130 Brown ». Houston, 114 U. S. 622 460 Brown ». Perkins, 12 Gray, 89 138 Brown ». Southern Pacific Co., 7 Utah, 288 688 Bryan ». Malloy, 90 N. C. 508 314 Buccleuch ». Metropolitan Board of Works, L. R. 5 H. L. 418 14, 21 Buford ». Houtz, 133 U. S. 320 85 Bunt ». Sierra Butte Gold Mining Co., 138 U. S. 483 156 Burnham ». Chandler, 15 Tex. 441 653 Burns ». Grand Rapids & Indiana Railroad, 113 Ind. 169 237 Butler ». Gage, 138 U. S. 52 384 Buttz ». Northern Pacific Rail- road Co., 119 U. S. 55 117 Cable ». Martin, 1 How. (Miss.) 558 504 Cadwalader ». Zeh, 151 U. S. 171 371, 627 Caldwell ». Texas, 137 U. S. 692 384 Callan ». Wilson, 127 U. S. 540 142 Calloway ». People’s Bank, 54 Ga. 441 538 Cameron ». McRoberts, 3 Wheat. 591 338 Camp ». Thompson, 25 Minn. 175 538 Campbell ». Galbraith, 1 Watts, 70 399 Campbell ». Hall, 16 N. Y. 575 314 Campbell». Mackay, 1 Myl. & Cr. 603 665 Canter v. American Ins. Co., 3 Pet. 307 516 Carr ». Hilton, 1 Curtis, 390 560 Carson ». Blazer, 2 Binney; 475 32, 34 Carson ». Dunham, 121 U. S. 421 460 Case ». Kelly, 133 U. S. 21 300 Casey ». Inloes, 1 Gill, 430 24 Caswell ». State, 2 Humphrey, 402 576 Central Railroad ». Georgia, 92 U. S. 665 306 Central Railroad ». Mills, 113 U. S. 249 460 Central Railroad Co. ». Moore, 4 Zabr. (24 N. J. Law,) 824 278 Central Transportation Co. ». Pullman’s Car Co., 139 U. S. 24 10, 199 Chaffee ». Boston Belting Co., 22 How. 217 432 TABLE OF CASES CITED. xiii PAGE Chapman v. Royal Netherlands Nav. Co., L. R. 4 P. D. 157 132 Chapman v. Tibbits, 33 N. Y. 289 504 Charles River Bridge v. Warren Bridge, 11 Pet. 420 10 Chatterton v. Watney, 17 Ch. D. 259 618 Cheatam v. United States, 92 U. S. 85 693 Cheesebrough, In re, 78 N. Y. 232 138 Chesapeake & Ohio Railroad v. Virginia, 94 U. S. 718 307 Chesapeake & Ohio Railway v. Miller, 114 U. S. 176 311 Chicago, Danville &c. Railroad v. Field, 86 Ill. 270 616 Chinery, Ex parte, 12 Q. B. D. 342 618 Chouteau v. Gibson, 111 U. S. 200 362 Chy Lung v. Freeman, 92 U. S. 275 137 City of Philadelphia v. Miller, 49 Penn. St. 440 404 Clark v. Chambers, 3 Q. B. D. 327 278 Clark v. Lord, 20 Kansas, 390 69 Clark v. Providence, 16 R. I. 337 20 Clarke v. White, 12 Pet. 178 532 Clarkson v. Edes, 4 Cowen, 470 187 Clement v. Burns, 43 N. H. 609 20 Cocke v. Rucks, 34 Miss. 105 504 Coles v. Allen, 64 Ala. 98 314 Collins v. Benbury, 3 Iredell, 277; 5 Iredell, 118 25 Collins v. Davidson, 19 Fed. Rep. 83 243 Colorado Co. v. Turek, 150 U. S. 138 461 Columbia & Puget Sound Railroad v. Hawthorne, 144 U. S. 202 688 Combined Weighing and Advertising Machine Co., In re, 43 Ch. D. 99 618 Commissioners v. Withers, 29 Miss. 21 33 Commonwealth v. Alger, 7 Cush. „ 53 19, 65 Commonwealth v. Chapin, 5 Pick. „ 199 139 Commonwealth v. Essex County, 13 Gray, 239 139 Commonwealth v. Grey, 2 Gray, 501; 8. C. 61 Am. Dec. 476 573 Commonwealth v. Manchester, 152 Mass. 230 19 Commonwealth v. Roxbury, 9 Gray, 451 15, 19 Concord Co. v. Robertson, 66 N. H. 1 20 Cooke v. Avery, 147 U. S. 375 460 PASS Cope v. Doherty, 4 K. & J. 367 126 Corbin v. County of Black Hawk, 105 U. S. 659 76 Cotton-Tie Company v. Simmons, 106 U. S. 89 433 Covert v. Sargent, 38 Fed. Rep. 237 520 Crandall v. James, 6 R. I. 144 172 Crawford v. Heysinger, 123 U. S. 589 429 Crehore v. Ohio & Miss. Railway, 131 U. S. 240 336 Cressy v. Tatom, 9 Ore. 541 52 Crim v. Handley, 94 U. S. 652 615 Cromwell v. County of Sac, 94 U. S. 351 258, 315, 343 Cross v. Harrison, 16 How. 164 48 Cummings v. Missouri, 4 Wall. 277 382 Curtis v. Leavitt, 15 N. Y. 9 538 Daley v. Norwich & Worcester Railroad, 26 Conn. 591 278 Davenport v. Chicago, Rock Isl- and &c. Railway, 38 Iowa, 633 315 Davenport v. Lamb, 13 Wall. 418 51, 70 Davies v. Arthur, 96 U. S. 148 524 Davies v. Austen, 1 Ves. Jr. 247 667 Davis v. Milburn, 3 Iowa, 163 616, 617 Delaney v. Errickson, 11 Neb. 533 86 Delaware County v. Diebold Safe & Lock Co., 133 U. S. 473 651, 670 Delaware, Lackawanna &c. Rail- road v. Converse, 139 U. S. 469 284 Delaware Railroad Tax, 18 Wall. 206 306 Den v. Jersey Co., 15 How. 426 17,18 Denoon v. Home & Colonial In- surance Co., L. R. 7 C. P. 341 131 Des Moines Nav. Co. v. Iowa Homestead Co., 123 U. S. 552 339, 340 Diamond Coal Co. v. Fisher, 19 Penn. St. 267 402, 403 District of Columbia v. Woodbury, 136 U. S. 450 242 Doane v. Walker, 101 Ill. 628 616 Doe v. East India Co., 10 Moore P. C. 140 36 Dooley v. Potter, 140 Mass. 49 314 Dowell v. Applegate, 7 Sawyer, 232 337 Dower v. Richards, 151 U. S. 658 362 Dundee, The, 1 Hagg. 109 126, 131 Dunham v. Whitehead, 21 N. Y. 131 538 Dunlap v. Northeastern Railroad Co., 130 U. S. 649 113 Dunn v. Burleigh, 62 Me. 24 143 xiv TABLE OF CASES CITED. PAGE Dutton «. Strong, 1 Black, 23 36, 37, 38, 41, 42 Earl of Lonsdale v. Curwen, 3 Bligh, 168 166 Edminson v. Baxter, 4 Hayw. (Tenn.)112;N. O'. 9 Am. Dec.751 617 Eisenbach v. Hatfield, 2 Wash. St. 236 56 Elliott v. Chicago, Milwaukee & St. Paul Railroad, 150 U. S. 245 284 Ellis v. Essex Merrimac Bridge, 9. Pirk 9.1^ kaq Ely v. Supervisors, 36 N. Y. 297 142 Embry v. Palmer, 107 U. S. 3 615 Estes v. Gunter, 122 U. S. 450 534 Etheridge v. Sperry, 139 U. S. 266 534 Eustis v. Bolles, 150 U. S. 361 196, 862 Evans v. Patterson, 4 Wall. 224 399 Fabbri v. Murphy, 95 U. S. 191 631 Farist Co. v. Bridgeport, 60 Conn. 278 20 Farmers’ and Merchants’ Bank v. Franklin Bank, 31 Md. 404 621, 622 Farmers’ Bank of Alexandria v. Hooff, 7 Pet. 168 252 Farnsworth v. Minnesota & Pa- cific Railroad, 92 U. S. 49 453 Fassett, Petitioner, In re, 142 U. S. 479 694 Feibelman v. Packard, 109 U. S. 421 459, 468 Felix v. Patrick, 145 U. S. 317 416, 560 Field v. Schieffelin, 7 Johns. Ch. 150; ß. C. 11 Am. Dec. 441 503 First Nat. Bank v. Nat. Exchange Bank, 92 U. S. 122 351 Fisher v. Boody, 1 Curtis, 206 560 Fisher v. Haldeman, 20 How. 186 32 Fisk «. Henarie, 142 U. S. 459 462 Fitzwalter’s Case, 3 Keb. 242; ß. C. 1 Mod. 105 13 Flint®. Flemyng, 1 B. & Ad. 45 130 Folsom v. Freeborn, 13 R. I. 200 20 Forbes «. Cooper, 88 Ky. 285 617 Forbes «. Gracey, 94 U. S. .762 511 Foster «. Mansfield, Coldwater &c. Railroad, 146 U. S. 88 416, 417, 560 Foster «. Wright, 4 C. P. D. 438 36 Fraler «. Sears Union Water Co., 12 Cal. 555 278 French «. Bankhead, 11 Grat. 136 25 Fuller «. Jewett, 80 N. Y. 46 689 Gale ». Laurie, 5 B. & C. 156 131,132 Gann «. Free Fishers of Whit- Stable, 11 H. L. Cas. 192 13 PAGE Garitee «. Baltimore, 53 Md. 422 24 Garrison «. Hall, 75 Va. 150 25 Gaston «. Babcock, 6 Wis. 503 171 Gay «. Gay, 10 Paige, 869 616, 668 Gelstrop «. Moore, 26 Miss. 206; S. C. 59 Am. Dec. 254 504 Genesee Chief, The, 12 How. 443 34, 35 Gentile «. State, 29 Ind. 409 139 Gerhard «. Seekonk Commission- ers, 15 R. I. 334 20 Gillis «. Pennsylvania Railroad, 59 Penn. St. 129 278 Gilman «. Philadelphia, 3 Wall. 713 23 Gitchell «. Kreidler, 84 Mo. 472 327 Glover «. Scotten, 82 Mich. 369 81 Godden «. Kimmell, 99 U. S. 201 559 Gold Washing Co. «. Keyes, 96 U. S. 199 460 Goodsell «. Lawson, 42 Md. 348 24 Goodtitle «. Kibbe, 9 How. 471 28, 47 Goodyear «. Allyn, 6 Blatch. 33 250 Goodyear «. Beverly Rubber Co., 1 Cliff. 348 432 Goodyear «. Providence Rubber Co., 2 Cliff. 351 249 Gould «. Hudson River Railroad, 6 N. Y. 522 21, 55 Governeur «. Robertson, 11 Wheat. 332 508, 511 Government Street Railroad «. Hanlon, 53 Ala. 70 278 Gracie «. Palmer, 8 Wheat. 605 187 Green County «. Conness, 109 U. S. 104 307 Gregory «. Forbes, 96 No. Car. 77 25 Grover «. Wakeman, 11 Wend. 187; S. C. 25 Am. Dec. 624 532 Gunther ». Liverpool & Globe Ins. Co., 134 U. S. 110 156 Gwillim «. Donellan, 115 U. S. 45 511 Hager «. Swayne, 149 U. S. 242 693 Hall «. Galveston, 39 Fed. Rep. 18 243 Hall «. Kimball, 77 Ill. 161 616 Hall «. Russell, 101 U. S. 503 51 Hallett «. Beebe, 13 How. 25 28 Hallett ®. Columbia Insurance Co., 8 Johns. 272 187 Hamilton «. Russell, 1 Cranch, 309 533 Hammond «. Hopkins, 143 U. S. 224 416, 560 Handly «. Anthony, 5 Wheat. 374 36 Hanna «. Jeffersonville Railroad Co., 32 Ind. 113 236 Hardee «. Wilson, 146 U. S. 179 593 Hardin «. Jordan, 140 U. S. 371 45, 46, 49, 56 Hardy «. McCullough, 23 Grat. 251 25 TABLE OF CASES CITED. xv PAGE Harrington v. Edwards, 17 Wis. 604 38 Harris v. Runnels, 12 How. 79 649 Hart v. Albany, 9 Wend. 571 140 Hartranft v. Meyer, 135 U. S. 237 588 Hartranft v. Oliver, 125 U. S. 525 631 Hastings & Dakota Railroad v. Whitney, 132 U. S. 357 544 Hatfield v. Grimstead, 7 Iredell, 139 25 Havelock v. Geddes, 10 East, 555 188 Hayes v. Massachusetts Life Ins. Co., 125 Ill. 626 505 Hayes v. Michigan Central Railroad, 111 U. S. 228 283 Hecht v. Ohio & Miss. Railway, 132 Ind. 507 237 Heinze v. Arthur’s Executors, 144 U. S. 28 525 Henderson v. New York, 92 U.S. 259 137 Henry v. Wilson, 51 N. W. Rep. 1157 619 Herman v. Robertson, 41 Fed. Rep. 881 523 Herring v. Gage, 15 Blatch. 124 250 Herrman v. Robertson, 152 U. S. 521 580 Herron v. Duter, 120 U. S. 464 401 Herron v. Murphy, 22 Weekly Notes of Cases, 181 402, 403 Hinman v. Warren, 6 Ore. 408 52 Hinrichsen v. Reinback, 27 Ill. 295 616 Hobbs v. McLean, 117 U. S. 567 646, 649, 669 Hoboken v. Pennsylvania Railroad, 124 U. S. 656 22, 55 Hodgkins v. Eastern Railroad, 119 Mass. 419 152 Hoffman v. Mackall, 5 O. St. 124; O'. 64 Am. Dec. 637 538 Hollender v. Magone, 149 U. S. 586 574 Hollister v. Benedict &c. Manfg. Co., 113 U. S. 59 99 Holyoke Co. v. Lyman, 15 Wall. 500 . 139 Homer v. The Collector, 1 Wall. 486 626 Hooe v. Groverman, 1 Cranch, rr21,4 187 Hooker v. Cummings, 20 Johns. 91 139 Hopkins v. Lee, 6 Wheat. 109 _ 257,344 Horner v. Pleasants, 66 Md. 475 24 Hough v. Railway Co., 100 U. S. 213 ggg Howard v. Ingersoll, 13 How. 381 25 PAGE Howard v. Stillwell & Bierce Manufacturing Co., 139 U. S. 199 205 Howard County v. Legg, 110 Ind. 479 243 Hudson v. Houser, Administrator, 123 Ind. 309 243 Huidekoper v. Burrus, 1 Wash. C. C. 109 399 Hulse v. Mershon, 125 Ill. 52 560 Huntington v. Risdon, 43 Iowa, 517 620 Hurtado v. California, 110 U. S. 516 168 Hydraulic Works v. Orr, 83 Penn. St. 332 278 leek v. Anderson, 57 Cal. 251 143 Illinois Central Railroad v. Illi- nois, 146 U. S. 387 46, 47 Inglehart v. Stansbury, 151 U. S. 68 593 Insurance Co. v. Boon, 95 U. S. 117 586 Inwood v. Twyne, Ambler, 417; N. C. 2 Eden, 148 503 Iron Silver Mining Co. v. Elgin Mining Co., 118 U. S. 196 228 Israel v. Arthur, 152 U. S. 355 368 Jackson v. Beach, 1 Johns. Cas. 399 511 James v. Newton, 142 Mass. 366 669 Jefferis v. East Omaha Co., 134 U. S. 178 36 Jeffersonville Railroad «.Swayne’s Administrator, 26 Ind. 459 236 Jenkins v. Collard, 145 U. S. 546 222 Jewell v. Knight, 123 U. S. 426 558 Johnson «. Barret, Aleyn, 10 38 Johnson «. McIntosh, 8 Wheat. 543 15, 50 Johnson Co. v. Wharton, 152 U. S. 252 344 Johnston v. Standard Mining Co., 148 U. S. 360 416 Jones v. Pettibone, 2 Wis. 308 40 Jones v. Soulard, 24 How. 41 35, 36 Jones v. United States, 137 U. S. 202 50, 222 Kane v. New York Elevated Railroad, 125 N. Y. 164 21 Kane v. Northern Central Railroad Co., 128 U. S. 91 282 Kansas Pacific Railroad v. Atchi- son &c. Railroad, 112 U. S. 414 459 Keffe v. Milwaukee & St. Paul Railway, 21 Minn. 207 275 Keightley v. Walls, 27 Ind. 384 616 Kempe’s Lessee v. Kennedy, 5 Cranch,173 337 Keokuk & Western Railroad Co. v. Missouri, 152 U- S. 301 318, 322 XVI TABLE OE CASES CITED. PAGE Kerwhacker v. Cleveland &c. Railroad, 3 O. St. 172 86 Kidd v. Pearson, 128 U. S. 1 136 King v. Hayes, 80 Me. 206 143 King®. Smith, 2 Doug. 441 13 Kingsbury v. Burrill, 151 Mass. 199 669 Kneeland v. American Loan Co., 136 U. S. 89 594 Knight v. United States Land Association, 142 U. S. 161 10, 28, 30, 47, 49, 222 Knox County v. Harshman, 133 U. S. 152 615 Kohn v. McNulta, 147 U. S. 238 155 Kring v. Missouri, 107 U. S. 221 382 Krogstad, In the matter of, 4 Land Dec. 564 511 Kynaston v. East India Co., 3 Swanst. 249 167 La Conflance Compagnie v. Hall, 137 U. S. 61 336 Ladies’ Seamen’s Friend Society v. Halstead, 58 Conn. 144 20 Lamar v. Micou, 112 U. S. 452 503 Lamb v. Davenport, 18 Wall. 307 51 Lamb v. Starr, Deady, 350 52, 69 Langdon v. New York, 93 N. Y. 129 21 Lannan v. Walter, 149 Mass. 14 620 Lansdale v. Smith, 106 U. S. 391 560 Lansing v. Smith, 4 Wend. 9 21 Larkin v. Taylor, 5 Kansas, 433 86 Lawrence v. Caswell, 13 How. 488 633 Laybourn v. Seymour, 54 N. W. Rep. 941 616 Leary v. United States, 14 Wall. 607 186 Leavenworth,Lawrence & Galveston Railroad v. United States, 92 U. S. 733 119 Leeds v. Marine Ins. Co., 6 Wheat. 565 615, 616 Leeper v. Texas, 139 U. S. 462 384 Leggett v. Avery, 101 U. S. 256 429 Leitch v. Hollister, 4 N. Y. 211 538 Lessee of Parrish v. Ferris, 2 Black, 606 258, 344 Lewis v. Keeling, 1 Jones, (No. Car.,) 299 25 Lewis v. Marsh, 8 Hare, 97 166 Lewis v. Marshall, 7 Man. & Gr. 729 130 Liebenroth v. Robertson, 144 U. S. 35 588 Lindsay ®. Jackson, 2 Paige, 581 616 Linthicum v. Ray, 9 Wall. 241 38 Litchfield v. Scituate, 136 Mass. 39 19 Littlewood v. "Sevf York City, 89 N. Y. 24 238 PAGE Livingston v. Hubbs, 2 Johns. Ch. 312 667 Livingston v. New York City, 8 Wend. 85 171 Lofton v. Vogles’Administrator, 17 Ind. 105 235 Loom Co. v. Higgins, 105 U. S. 580 567 Lord v. Perrin, 8 Land Dec. 536 511 Lord Advocate v. Hamilton, 1 Macq. 46 13 Louisville & Nashville Railroad v. Palmes, 109 U. S. 244 311 Lovingston v. St. Clair County, 64 Ill. 56 36 Lownsdale v. Parrish, 21 How. 290 51 Lowry v. Rainwater, 70 Mo. 152 143 Lukins v. Aird, 6 Wall. 78 533 Lumber Co. v. Butchel, 101 U. S. 638 258, 344 Lynch v. Nurdin, 1 Q. B. 29 270, 272, 278 I Lyon v. Fishmongers Co., 1 App. Cas. 662 14 McAllister v. United States, 141 U. S.174 48 McCann v. Oregon Railway, 13 Ore. 455 52 McComb v. Brodie, 1 Woods, 153 250 McCool v. Smith, 1 Black, 459 70 McCormick v. Suliivant, 10 Wheat. 192 339 McCready v. Virginia, 94 U. S. 391 24, 139 McCreight v. Foster, 5 Ch. App. 604 667 McDonald v. Union Pacific Rail- way, 35 Fed. Rep. 38 269 McDonough, In re, 49 Fed. Rep. 360 574 McIntyre v. Bowne, 1 Johns. 229 187 McKinnie v. Rutherford, 1 Dev. & Bat. (Eq.) 14 667 Maclay v. Work, 5 Binn. 154 401 McMahan v. Morrison, 16 Ind. 172 308 Macon & Western Railroad v. Davis, 18 Ga. 679 278 Maddock v. Magone, 152 U. S. 368 376 Malcomson v. O’Dea, 10 H. L. Cas. 591 13 Man v. Huk, 3 Land Dec. 452 511 Manchester v. Massachusetts, 139 U. S. 240 19 Mangan v. Atterton, L. R. 1 Ex. 239; 8. C.1H.& C. 388 278 Manufacturing Co. v. Cowing, 105 U. S. 257 569 Marbury v. Brooks, 7 Wheat. 556 532 TABLE OF CASES CITED. xvii PAGE Marcardier v. Insurance Co., 8 Cranch, 39 187 Mariner v. Schulte, 13 Wis. 692 40 Marrow v. Brinkley, 129 U. S.178 362 Marshall v. Holmes, 141 U. S. 589 615 Martin v. Baltimore & Ohio Rail- road, 151 U. S. 673 462 Martin v. Snyder, 148 U. S. 663 464 Martin v. Tarver, 43 Miss. 517 504 Martin v. Waddell, 16 Pet. 367 10, 15, 16, 17, 18, 30, 49, 50 Masterson v. Herndon, 10 Wall. 416 593 Mathes v. Cover, 43 Iowa, 512 314 Mayhew v. Burns, 103 Ind. 328 236 Means v. Dowd, 128 U. S. 273 535, 537 Meeker v. Van Rensselaer, 15 Wend. 397 140 Mellona, The, 3 W. Rob. 16 126 Memphis & Little Rock Railroad v. Commissioners, 112 U.S.609 311 Meredith v. United States, 13 Pet. 486 631 Merritt v. Cameron, 137 U. S. 542 633 Metcalf v. Watertown, 128 U. S. 586 460 Miller v. Ammon, 145 U. S. 421 649 Miller’s Executors v. Swann, 150 U. S. 132 196 Milwaukee & Minnesota Railroad y. Soutter, 2 Wall. 440 515 Minto v. Delaney, 7 Ore. 337 36 Missionary Society v. Dalles, 107 U. S. 336 51 Missouri, Kansas & Texas Railway v. Kansas Pacific Railway, 97 U. S. 491 298 Mobile v. Emanuel, 1 How. 95 27 Mobile v. Eslava, 16 Pet. 234 27 Mobile v. Hallett, 16 Pet. 261 27 Monongahela Co. v. United States, 148 U. S. 312 34 Moore v. Greene, 2 Curtis, 202 560 Morgan v. Cox, 22 Mo. 373 278 Morgan v. Louisiana, 93 U. S. 217 311 Mormon Church v. United States, 136 U. S. 1 48 Morris v. Litchfield, 35 N. H. 271 278 Morrison v. Cornelius, 63 N. C. 346 278 Mouse’s Case, 12 Rep. 63 140 Mulloy v. Backer, 5 East, 316 129 Mumford v. Wardwell, 6 Wall. 423 28 30 Murphy v. Ramsey, 114 U. S. 15 ’ 48 Murphy v. Ryan, Ir. R. 2 C. L. 143 31 Murray’s Lessee1». Hoboken Land Co., 18 How. 272 171 Nashua & Lowell Railroad v. Boston & Lowell Railroad, 5 U. S. App. 97 515 PAGE National Bank v. Case, 99 U. S. 628 354 National Bank v. North Wiscon- sin Lumber Co., 41 Ill. App. 383 557 National Bank v. Yankton County, 101 U. S. 129 48 Nebraska v. Iowa, 143 U. S. 359 36 Nebraska City v. Campbell, 2 Black, 590 242 Nesbit ». Riverside Independent District, 144 U. S. 610 315 New Jersey Steam Navigation Co. ». Merchants’ Bank, 6 How. 344 128 New Orleans ». Houston, 119 U. S. 265 460 New York ». Hart, 95 N. Y. 443 21 New York &c. Railroad ». Yard, 14 Vroom, (43 N. J. Law,) 632 23 New York Central & Hudson River Railroad, In re, 77 N. Y. 248 64 New York Pharmical Association ». Tilden, 21 Blatch. 190 250 Newark Railway ». Hunt, 50 N. J. Law, 308 140 Nichols ». United States, 7 Wall. 122 633 Norcross ». Griffiths, 65 Wis. 599 40 Norfolk ». Cooke, 27 Grat. 430 25 Norfolk & Petersburg Railroad ». Ormsby, 27 Gratt. 455 278 Norris ». Harris, 15 Cal. 226 52 North Shore Railway ». Pion, 14 App. Cas. 612 14 Northern Pacific Railroad ». Herbert, 116 U. S. 642 688 Northern Pacific Railroad Co. ». McRae, 6 L. Dec. 400 294 Northumbria, The, L. R. 3 Ad. & Ec. 6 132 Noyes ». Mantle, 127 U. S. 348 511 Nudd ». Hobbs, 17 N. H. 524 20 Oberteuffer ». Robertson, 116 U. S. 499 630, 633 Oelbermann ». Merritt, 123 U. S. 356 694 O’Fallon ». Price, 4 Mo. 343 35 Olson ». Merrill, 42 Wis. 203 40 Ordinary ». Dean, 15 Vroom, (44 N. J. Law,) 64 503 Oregon Railway ». Oregonian Railway, 130 U. S. 1 199 Orr Ewing ». Colquhoun, 2 App. Cas. 839 31 Osborn ». Bank of United States, 9 Wheat. 738 459 Osterman ». Baldwin, 6 Wall. 116 511 Otis ». Morgan, 61 Iowa, 712 86 Pace ». Potter, 85 Tex. 473 84 Pacific Railroad ». United States, 124 U. S. 124 453 xviii TABLE OF CASES CITED. PAGE Pacific Railroad Removal Cases, 115 U. S. 1 460, 468 Packer v. Bird, 71 Cal. 134; 137 U. S. 661 10, 28, 44, 45, 47 Packet Co. ». Atlee, 2 Dillon, 479 41 Palliser, In re, 136 U. S. 257 546 Palmer ». McMahon, 133 U. S. 660 171 Pangborn ». Westlake, 36 Iowa, 546 649 Paper Bag Cases, 105 U. S. 766 432, 516 Parker ». Rogers, 8 Ore. 183 52 Parker ». Taylor, 7 Ore. 435 52 Passavant ». United States, 148 U. S. 214 694 Pennington ». Gibson, 16 How. 65 258, 344 Pennsylvania Co., In re, 137 U. S. 451 462 Pennsylvania Railroad ». New York & Long Branch Railroad, 8 C. E. Green, (23 N. J. Eq.) 157 23 Pennsylvania Railroad Co. ». St. Louis, Alton &c. Railroad Co., 118 U. S. 290 199 People ». Canal Appraisers, 33 N. Y. 461 21 People ». New York & Staten Isl- and Ferry, 68 N. Y. 71 15, 21, 65 People ». Tibbetts, 19 N. Y. 523 21 People ». Vanderbilt, 26 N. Y. 287 21 People ». West, 106 N. Y. 293 143 People’s Savings Bank ». Bates, 120 U. S. 556 535 Perkins ». Fourniquet,. 14 How. 328 514, 515 Peyton ». Robertson, 9 Wheat. 527 252 Phelps ». Racey, 60 N. Y. 10 139 Philadelphia ». Scott, 81 Penn. St. 80 23 Philadelphia &c. Railroad ». Maryland, 10 How. 376 305 Picard ». Tennessee &c. Rail- road, 130 U. S. 637 311 Pierson ». Shore, West Ch. 711 ; & G. 1 Atk. 480 503 Pion ». North Shore Railway Co., 14 Canada Sup. Ct. 677 14 Pittsburgh, Fort Wayne &c. Rail- way ». Vining’s Administrator, 27 Ind. 513 236 Pollard ». Files, 2 How. 591 27 Pollard ». Hagan, 3 How. 212 26, 27, 28, 30, 49 Pollard ». Kibbe, 14 Pet. 353 27 Pond ». Smith, 4 Conn. 297 616 Potomac Steamboat Co. ». Upper Potomac Steamboat Co., 109 U.S. 672 24 Powers ». Harlow, 53 Mich. 507 276 PAGE Prior »• Swartz, 62 Conn. 132 20 Prosser ». Northern Pacific Rail- road, 152 U. S. 59 10 Provident Savings Society ». Ford, 114 U. S. 635 460 Pumpelly ». Green Bay Co., 13 Wall. 166 169 Quick ». Lemon, 105 Ill. 578 617 Railroad Co. ». Durant, 95 U. S. 576 668 Railroad Co. ». Georgia, 92 U. S. 665 308 Railroad Co. ». Georgia, 98 U. S. 359 307 Railroad Co. ». Husen, 95 U. S. 465 137 Railroad Co. ». Jones, 95 U. S. 439 81 Railroad Co. ». Maine, 96 U. S. 499 307 Railroad Co. ». Mississippi, 102 U. S. 135 460, 462, 468 Railroad Co. ». Schurmeir, 7 Wall. 272 10, 36, 38, 39, 41, 42, 47 Railroad Co. ». Stout, 17 Wall. 657 272, 275, 279 Railway -Co. ». Renwick, 102 U. S. 180 41 Railway Co. ». Smith, 21 Wall. 255 616 Raleigh ». Raleigh, 35 Ill. 512 616 Randall ». Baltimore & Ohio Rail- road, 109 U. S. 478 153,156 Rauch ». Lloyd, 31 Penn. St. 358 278 Read v. Great Eastern Railway, L. R. 3 Q. B. 555 237 Rebeckah, The, 1 C. Rob. 227 10 Reed ». United States, 11 Wall. 591 186 Reiche ». Smythe, 13 Wall. 162 372, 626 Renwick ». Railway Co., 49 Iowa, 664 ' 41 Rex ». Cooke, 2 B. & C. 618; 5 B. & C. 538 544 Rex ». Yarborough, 3 B. & C. 91; 4 D. & R. 790; 1 Dow & Clark, 178; 2 Bligh N. R. 147; 5 Bing. 163 . 35 Reynolds ». N. Y. Central &c. Railroad, 58 N. Y. 248 281 Richards ». La Tourette, 119 N. Y. 54 616 Richardson ». Boston, 19 How. 263; 24 How. 188 19 Richardson ». Lester, 83 Ill. 55 619 Richmond ». Sacramento Valley Railroad, 18 Cal. 351 278 Richmond & Danville Railroad ». Powers, 149 U. S. 443 113 Ridgeway ». West, 60 Ind. 371 143 TABLE OF CASES CITED. xix PAGE Ripley v. Scaife, 5 B. & C. 167 188 Robbins v. Hawley, 1 T. B. Mon. 18 617. Robbins v. Holley, 1 T. B. Mon. 194 616 Roberts v. Ryer, 91 U. S. 150 103, 107 Robertson v. Frank Brothers Co., 132 U. S. 17 633, 694 Robinson v. Cone, 22 Vt. 213 278 Robinson v. Elliott, 22 Wall. 513 533 535 Rockwell v. Nearing, 35 N. Y. 302 137 Rogers v. Ludlow Mfg. Co., 144 Mass. 198 689 Romero v. United States, 1 Wall. 721 222 Ross v. Barker, 5 Watts, 391 399 Ross v. Irving, 14 Ill. 171 171 Ross v. Prentiss, 3 How. 771 252 Ross v. Walker, 26 Chicago Legal News, 133 557 Rothschild v. Mack, 115 N. Y. 1 616 Rubber Co. v. Goodyear, 9 Wall. 788 . 249, 569, 570 Rumsey v. New York & New Eng- land Railroad, 133 N. Y. 79; 136 N. Y. 543 21 Rundle v. Delaware & Raritan Canal, 14 How. 80 23, 32 Russell v. Place, 94 U. S. 606 343 Sabine & East Texas Railway v. Johnson,65 Tex. 389 84 St. Clair v. Lovingston, 23 Wall. 46 36 St. Louis v. Ferry Co., 11 Wall. 423 586 St. Louis v. Myers, 113 U. S. 566 44 45 St. Louis v. Rutz, 138 U. S. 226 * 45 St. Louis & San Francisco Rail- way ®. Marker, 41 Ark. 542 81 St. Louis Cattle Co. v. Vaught, 1 Tex. Civ. App. 388 85 St. Louis, Iron Mountain &c. Rail- way®. Berry, 113 U. S. 465 308,310 St. Paul & Pacific Railroad ®. Northern Pacific Railroad, 139 U. S. 1 292 Salomon®. United States, 19 Wall. 178 99 San Francisco ®. Le Roy, 138 U. S. „ 656 28, 30 Savannah ®. State, 4 Ga. 26 25 Saxe ®. Hammond, Holmes, 456 433 Scammon ®. Kimball, 92 U. S. 362 615 Scates ®. King, 110 Ill. 456 314 Schneider ®. Pountney, 21 Fed. Rep. 399 433 Schofield ®. Chicago, Milwaukee &c. Railway, 114 U. S. 615 156 PAGE Schroeder v. Michigan Car Co., 56 Mich. 132 151 Schroeder ®. Walsh, 120 Ill. 403 557 Schulenberg ®. Harriman, 21 Wall. 44 510 Schuler ®. Israel, 120 U. S. 506 616 Schurmeier ®. Railroad Co., 10 Minn. 82 39 Schuyler ®. Smith, 51 N. Y. 309 87 Scotland County ®. Railroad Co., 65 Mo. 123 316 Secor ®. Singleton, 9 Fed. Rep. 809 318 Seeberger ®. Cahn, 137 U. S. 95 626 Seeberger ®. Hardy, 150 U. S. 420 587 Seren son ®. Northern Pacific Railroad, 45 Fed. Rep. 407 243 Seymour ®. McCormick, 16 How. 480 204 Sharp ®. Taylor, 2 Phillips, 801 668 Shaw ®. Quincy Mining Co., 145 U. S. 444 462 Shay ®. McNamara, 54 Cal. 169 314 Shelton ®. Maupin, 16 Mo. 124 35 Shepard ®. Carrigan, 116 U. S. 593 • 429 Sheppard ®. Steele, 43 N. Y. 52 172 Shields ®. Ohio, 95 U. S. 319 307, 310, 311 Shirley ®. Lunenburg, 11 Mass. 379 172 Shively v. Bowlby, 152 U. S. 1 64 Shively ®. Parker, 9 Ore. 500 52 Shively ®. Welch, 10 Sawyer, 136 52 Shoecraft v. Bloxham, 124 U. S. 730 76 Sims ®. Irvine, 3 Dall. 425 399 Skillern’s Executors ®. May’s Executors, 6 Cranch, 267 838 Slaughterhouse Cases, 16 Wall. 36 138 Smith ®. Craft, 123 U. S. 436 534, 558 Smith ®. Kernochen, 7 How. 198 257, 344 Smith ®. Levinus, 8 N. Y. 472 138 Smith ®. Lyon, 133 U. S. 315 462 Smith ®. Maryland, 18 How. 71 24, 49, 138 Smith ®. St. Louis Schools, 30 Mo. 290 35 Smith ®. Stair, 6 Bell App. Cas. 487 13 Solomon ®. Arthur, 102 U. S. 208 588 Somerset ». Fogwell, 5 B. & C. 875; 8. C. 8 D. & R. 747 13 Southern Pacific Railroad ®. California, 118 U. S. 109 460 Spafibrd ®. Dodge, 14 Mass. 66 189 Spicer ®. South Boston Iron Co., 138 Mass. 426 689 XX TABLE OF CASES CITED. PAGE Spring v. Russell, 1 Lowell, 258 632 Stafford v. Fizer, 82 Mo. 393 327 Stanton v. United States, 37 Fed. Rep. 252 443 Starin v. New York, 115 U. S. 248 468 Stark v. Starr, 94 U. S. 477 51 Stark v. Starrs, 6 Wall. 402 51 Stsrte v. Adams, 51 N. H. 568 573 State v. Cape Girardeau Railway, 48 Mo. 468 305 State v. Coffee, 59 Mo. 59 305 State v. Giersch, 4 S. E. Rep. 193 574 State v. Jackson, 95 Mo. 623; 99 Mo. 60; 105 Mo. 196; 105 Mo. 201 383 State v. Lewis, 33 N. E. Rep. 1024 139 State v. Macon County, 41 Mo. 453 305 State v. Moore, 5 Blackford, 118 576 State v. Narrows Island Club, 100 No. Car. 477 25 State v. Pacific Guano Co., 22 So. Car. 50 25 State v. Pinckney, 22 So. Car. 484 25 State v. Robbins, 124 Ind. 308 143 State v. Roberts, 59 N. H. 256 138 State v. Sargent, 45 Conn. 358 20, 65 State v. Seymour, 6 Vroom, (35 N. J. Law,) 47 167 State v. Sorrell, 1 Devereux Law, (N. C.) 139 239 Staten Island Rapid Transit Co., In re, 103 N. Y. 251 21, 64 Stearns v. Page, 1 Story, 204; 7 How. 819 558, 559 Stevens v. Nichols, 130 U. S. 230 336 Stevens v. Paterson & Newark Railroad, 5 Vroom, (34 N. J. Law,) 532 15, 21, 23, 55 Stewart v. Dunham, 115 U. S. 61 534 Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80 166 Stockton v. Ford, 18 How. 418 258,344 Stone v. New York, 25 Wend. 157 140 Stout v. Lye, 103 U. S. 66 259, 344 Stuart v. Palmer, 74 N. Y. 183 169 Sullivan v. N. Y. & N. H. Rail- road, 154 Mass. 524 113 Swan v. Arthur, 103 U. S. 597 371 Sweeny »• Berlin & Jones Manu- facturing Co., 101 N. Y. 520 152 Swift Co. v. United States, 105 U. S. 691 397 Taylor v. Stowell, 4 Met. (Ky.) 175 617 Tennessee v. Whitworth, 117 U. S. .129 . 307, 311, 460 PAGE Texas & Pacific Railway v. Cox, 145 U. S. 593 463, 472 Texas & Pacific Railway v. Southern Pacific Co., 137 U. S. 48 384 Texas & Pacific Railway v. Volk, 151 U. S. 73 243 Thomas v. Railroad Co., 101U. S. 71 199 Thomas Iron Co. v. Allentown Mining Co., 1 Stewart, (28 N. J. Eq.,) 77 166 Thornburgh v. Savage Mining Co., 1 Pac. Law Mag. 267; N. C. 7 Morrison Minn. Rep. 667 166 Thurber v. Harlem Bridge &c. Railroad, 60 N. Y. 326 281 Tibbitts v. Ah Tong, 4 Montana, 536 510 Tillou v. Britton, 4 Halsted, (9 N. J. Law,) 120 532 Tinicum Co. v. Carter, 61 Penn. St. 21 23 Tintsman ». National Bank, 100 U. S.6 252 Tobias Watkins, Ex parte, 3 Pet. 193 339 Todd v. Flournoy, 56 Ala. 99 314 Tomlinson v. Branch, 15 Wall. 460 305, 306 Tompkins v. Fort Smith Railway Co., 125 U. S. 109 492, 493 Tompkins v. Wheeler, 16 Pet. 106 532 Torrence v. Shedd, 144 U. S. 527 464 Towner v, George, 53 Ill. 168 619 Townsend v. Wathen, 9 East, 277 279, 280 Tremlett v. Adams, 13 How. 295 631 Tuker v. State, 8 South. Rep. 855 573 Tuscumbia &c. Railroad v. Rhodes, 8 Ala. 206 616 Tuttle v. Detroit & Milwaukee Railway, 122 U. S. 189 153, 155 Twyne’s Case, 3 Rep. 81 533 Tyng v. Grinnell, 92 U. S. 467 586 Union Bank of Chicago». Kansas City Bank, 136 U. S. 223 557 Union Metallic Cartridge Co. v. United States Cartridge Co., 112 U. S. 624 429 Union Pacific Railway ». Collins, 5 Kansas, 167 86 United States v. Alger, 151 U. S. 362 396, 397 United States v. Bailey, 9 Pet. 238 218 United States v. Britton, 108 U. S. 199 547 United States v. Eaton, 144 U. S. 677 219 United States v. Fox, 94 U. S. 315 68 TABLE OF CASES CITED. xxi PAGE United States v. Graham, 110 U. S. 619 397 United States v. Hooe, 3 Cranch, 73 533 United States v. Missouri &c. Railway, 141 U. S. 358 298 United States v. Northern Pa- cific Railroad, 41 Fed. Rep. 842 285 United States v. Pacheco, 2 Wall. 587 13, 28, 29, 47 United States v. Palmer, 128 U. S. 262 99 United States ». Russell, 13 Wall. 623 99 United States ». Southern Pacific Railroad, 146 U. S. 570 298, 299 United States ». Tanner, 147 U. S. 661 397 United States ». Teschmaker, 22 How. 392 222 United States ». Thurber, 28 Fed. Rep. 56 633 United States ».Vowell, 5 Cranch, 368 631 United States ». Wiltberger, 5 Wheat. 76 575 Van Ness ». Pacard, 2 Pet. 137 52 Vinton ». Welsh, 9 Pick. 87 139 Wade ». Le Roy, 20 How. 34 242 Wadsworth ». Supervisors, 102 U. S. 534 495 Wainwright ». McCullough, 63 Penn. St. 66 23 Walker ». Fletcher, 3 Bligh, 172 166 Walker ». Shepardson, 2 Wis. 384 ; 4 Wis. 486 40 Walker ». State Harbor Commis- sioners, 17 Wall. 648 64 Wall ». Pittsburgh Harbor Co., 152 Penn. St. 427 23 Wallace ». Holmes, 9 Blatch. 65 433 Wallace’s Appeal, 104 Penn. St. , 559 660, 667 Walsh ». Miss. Valley Transp. Co., 52 Mo. 434 278 Walsh ». Whiteley, 21 Q. B. D. 371 151 Washington & Georgetown Rail- road, In re, 140 U. S. 92 515 Washington & Georgetown Rail- road ». McDade, 135 U. S. 554 153, 155 Watertown». Mayo, 109Mass.315 138 Weber ». Harbor Commissioners, 18 Wall. 57 14, 28, 29, 30, 40, 41, 49, 64 Weber ». Mick, 131 Ill. 520 557 Webster ». Wise, 1 Paige, 319 668 Weick ». Lander, 75 Ill. 93 278 Weller ». Snover, 42 N. J. Law, 341 143 PAGE Westray ». United States, 18 Wall. 322 631 Wetmore ». Brooklyn Gaslight Co., 42 N. Y. 384 38 Whaley ». Brancker, 10 Law Times N. S. 155 166 Whallon ». Bancroft, 4 Minn. 109 171 White ». Cotzhausen, 129 U. S. 329 556,-558 White ». Greenhow, 114 U. S. 307 472 Wilcox ». Jackson, 13 Pet. 498 119 Wild Ranger, The, Lush. 553 126 Willamette Bridge Co. ». Hatch, 125 U. S. 1 34 Willard ». Mathesus, 7 CoL 76 86 Willard ». Wood, 135-U. S. 309 630 Williams ». Blackwall, 2 H. & C. 33 143 Williams ». Morgan, 111 U. S. 684 593 Williams ». New York, 105 N. Y. 419 21 Willson ». Blackbird Creek Co., 2 Pet. 245 23 Wilmington & Weldon Railroad ». Alsbrook, 146 U. S. 279 312, 315 Wilmot ». Pike, 5 Hare, 14 667 Wilson ». Dickson, 2 B. & Aid. 2 126, 132 Wilson ». Forbes, 2 Dev. 30 25 Wilson ». Simpson, 9 How. 109 434, 435 Wiltshire ». Rabbits, 14 Sim. 76 667 Winslow ». Gifford, 6 Cush. 327 167 Winters ». Armstrong, 37 Fed. Rep. 508 354 Withers ». Buckley, 20 How. 84 33, 34 Wood ». Carpenter, 101 U. S. 135 559 Wood ». Weimar, 104 U. S. 786 516 Woodburn ».The Farmers’Bank, 5 W. & S. 447 403 Woods ». Wilson, 37 Penn. St. 379 401 Wood worth ». Curtis, 2 Woodb. & Min. 524 432 Worten ». Howard, 2 Sm. & Marsh. 527 504 Wray ». Furniss, 27 Ala. 471 616 Wright ». Lancaster, 48 Tex. 250 653 Wulschner ». Sells, 87 Ind. 71 616 Yates ». Judd, 18 Wis. 118 40 Yates ». Milwaukee, 10 Wall. 497 36, 39, 40, 41, 42 Yesler ». Washington Harbor Commissioners, 146 U. S. 646 10 Young ». Clapp, 147 Ill. 176 556, 560 Young ». Harrison, 6 Ga. 130 25 Zug ». Commonwealth, 70 Penn. St. 138 23 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. PAGE 1789, Aug. 7, 1 Stat. 50, c. 8....... 33 1789, Sept. 24, 1 Stat. 73, c. 20.. 466 1796, May 18, 1 Stat. 464, c. 29.. 33 1798, Apr. 7, 1 Stat. 549, c. 28... 26 1800, May 10, 2 Stat. 69, c. 50... 26 1800, May 10, 2 Stat. 73, c. 55... 33 1803, Mar. 3, 2 Stat. 229, c. 27, 26, 33 1804, Mar. 26, 2 Stat. 279, c. 35, 33 1805, Feb. 11, 2 Stat. 313, c. 14.. 33 1811, Feb. 20, 2 Stat. 642, c. 21.. 33 1811, Mar. 3, 2 Stat. 666, c. 46... 33 1812, Apr. 8, 2 Stat. 703, c. 50... 33 1812, June 4, 2 Stat. 747, c. 95... 33 1812, June 13, 2 Stat. 748, c. 99.. 35 1817, Mar. 1, 3 Stat. 349, c. 23... 33 1832, July 9, 4 Stat. 564, c. 74... 571 1836, May 20, 5 Stat. 31, c. 76... 70 1844, May 24, 4 Stat. 34, c. 141.. 33 1848, Aug. 14, 9 Stat. 329, c. 177, 50, 51 1850, Sept. 27, 9 Stat. 496, e. 76, 9, 51, 69 1854, May 30, 10 Stat. 277, c. 59, 118 1857, Mar. 3, 11 Stat. 250, c. 116, 216 1859, Feb. 14, 11 Stat. 383, c. 33, 51, 52 1860, May 26, 12 Stat. 21, c. 61.. 69 1861, Jan. 29, 12 Stat. 126, c. 20, 120 1861, Mar. 2, 12 Stat. 246, c. 88.. 249 1864, Mar. 15, 13 Stat. 29, c. 33.. 571 1864, July 2, 13 Stat. 365, c. 217, 285, 286, 292, 293 1866, July 26, 14 Stat. 289, c. 270, 114, 116, 118., 120, 122 1870, May 4, 16 Stat. 94, c. 69, 287, 288 1875, Feb. 16, 18 Stat. 316, c. 77, 252 1875, Mar. 1, 18 Stat. 335, c. 114, 463 1875, Mar. 3, 18 Stat. 470, c. 137, 459, 463, 466 1877, Feb. 27, 19 Stat. 240, c. 69, 524, 571, 632, 693 PAGE 1880, May 14, 21 Stat. 140, c. 89, 217 1880, June 10, 21 Stat. 174, c. 190, 631 1883, Jan. 6, 22 Stat. 400, c. 13.. 216 1883, Mar. 3, 22 Stat. 473, c. 97.. 396 1883, Mar. 3, 22 Stat. 488, c. 121, 370, 376, 579, 582, 583, 586, 587, 626 1884, June 26, 23 Stat. 53, c. 121, 128 1885, Jan. 31, 23 Stat. 296, c. 46, 291 1886, June 19, 24 Stat. 79, c. 421, 128 1887, Feb. 4, 24 Stat. 387, c. 105, 248 1887, Feb. 23, 24 Stat. 411, c. 215, 631 1887, Feb. 23, 24 Stat. 414, c. 218, 631 1887, Mar. 3, 24 Stat. 552, c. 373, 76, 458, 462, 463, 465, 466, 467 1888, Aug. 13, 25 Stat. 434, c. 866, 458, 462, 463, 466 1890, May 2, 26 Stat. 81, c. 182, 213 215 531 1890, June 10, 26 Stat. 131, c.’ 407,’ 692, 693, 694 1891, Mar. 3, 26 Stat. 1095, c. 561, 217 1892, July 23, 27 Stat. 260, c. 234, 576 1892, July 26, 27 Stat. 270, c. 252, 217 Revised Statutes. §§ 441, 453.................. 217 § 563........................ 216 § 629...................... 76, 77 § 640........................ 463 §§ 641, 642, 643.......... 463, 468 § 709................ 10, 381, 383 § 722.................... 463, 468 § 838.................... 441, 443 § 934......................... 694 § 997......................... 88 § 1025....................... 221 § 1079......................... 99 § 1485........................ 397 § 2139.................... 571,575 § 2145.........................215 § 2246....................... 218 § 2269........................ 67 § 2273....................... 216 § 2319........................510 xxiii xxiv TABLE OF STATUTES CITED. PAGE Rev. Stat, (coni.) § 2320....................... 223, 226 § 2322..........223, 226, 227, 510 § 2324...................... 227 §§ 2395, 2396............... 33, 51 § 2407....................... 33 § 2409....................... 51 §§ 2443, 2448................. 70 § 2476....................... 33 § 2478...................... 217 § 2499..523,524,526, 586, 587, 589 § 2504...............523, 524,584 § 2927...................... 574 § 2931...... 524, 580, 630, 632, 693 §§ 2962, 2970, 2990-2997, 3000, 3001.................... 631 PAGE Rev. Stat, (coni.) § 3010.................... 693 § 3011..524, 580,630,632,693, 694 §§ 3012, 3012|, 3013... 693 § 3085.............<..441,443 § 3244................ 572 § 3737................ 647 § 4282................ 128 § 4283............. 126, 128, 131 § 4284................ 131 § 4290................ 128 § 4900..............247, 248, 249 § 4933................ 247 § 5136....................... 351 § 5392... 215,216,218,220 §§ 5595, 5596.......... 216 (B.) Statutes of the States and Territories. Arkansas. Laws of 1866-7, pp. 428, 430, No. 166............. 493, 494, 495 Laws of 1868, p. 148, No. 48, 492, 494, 495, 496, 498 Laws of 1868-9, p. 147, No. 73.....................492, 496 Colorado. 1877, May 3, Gen. Laws of 1877, §§ 137, 138, 139..266, 267 Mills’ Anno. Stats. §§ 3202, 3203, 3204................. 267 Georgia. Clayton’s Laws, pp. 48-51... 26 Code of 1882, §§ 962, 2229, 2230.................... 25 Indiana. Rev. Stats, of 1881, § 284.... 235 Kansas. Gen. Stat. 786, c. 33,« §§ 22, 23........................ 67 Massachusetts. Colony Laws, (ed. 1660,) 50; (ed. 1872,) 90, 91......... 19 Mississippi. Rev. Stats, of 1880, §§ 2032, Mississippi, (coni.) §§ 2033, 2035,2038, 2065, 2077, 2106, 2110................ 504 Hutchinson’s Code, c. 49, § 109....................... 504 New York. Laws of 1880, c. 591.......135 Laws of 1883, c. 317.......135 Laws of 1886, c. 141.......135 North Carolina. Code, §§ 3110, 3116.........574 Oregon. 1862, Oct. 14, Gen. Laws of 1862, p. 96................ 54 Hill’s Code, §§ 246, 393...... 9 §§ 4227,4228.... 54 Pennsylvania. Purdon’s Dig. (11th ed.) 1064, 405 1682, pl. 52.............. 404 Rev. Stat. §§ 2431, 2434..... 84 § 4331.......... 653 Utah. Comp. Laws of 1888, §§ 3145, 3149.......................410 (C.) Foreign Statutes. Argentine Republic. Code, Art. 1039............ 127 Belgium. Code, Art. 216............ 127 Brazil. Code, Art. 494............. 127 Chili. Code, Art. 879........... 127 France. Code de Commerce, Art. 216, 127 Germany. Mar. Code, Art. 452...... 127 TABLE OF STATUTES CITED. XXV PAGE Great Britain. 6 Edw. 1, c. 9.......... 240, 241 3 Hen. 8, c. 1..............241 7 Geo. 2, c. 15.............127 59 Geo. 3, c. 46........... 240 16 & 17 Viet. c. 131........127 Italy. Code, Art. 311..............127 PAGE Netherlands. Code, Art. 321...................127 Portugal. Code, Art. 1345................. 127 Russia. Code, Art. 649.................. 127 Spain. Code, Arts. 621, 622............ 127 CASES ADJUDGED & S Q IN THE g SUPREME COURT OF THE UNITED^TATES, AT OCTOBER TERM, 1893. SHIVELY v. BOWLBY. ERROR TO THE SUPREME COURT OF THE STATE OF OREGON. No. 787. Submitted December 2, 1892. — Decided March 5,1894. This court has jurisdiction to review by writ of error a judgment of the highest court of the State of Oregon, deciding that a donation land claim under the act of Congress of September 27, 1850, c. 76, of land bounded by tide water, passed no title or right below high water mark, as against a subsequent grant from the State. By the common law, the title in the soil of the sea, or of arms of the sea, below high water mark, except so far as private rights in it have been acquired by express grant, or by prescription or. usage, is in the King, subject to the public rights of navigation and fishing ; and no one can erect a building or wharf upon it, without license. Upon the American Revolution, the title and the dominion of the tide waters and of the lands under them vested in the several States of the Union within their respective borders, subject to the rights surrendered by the Constitution to the United States. In the original States, by various laws and usages, the owners of lands bordering on tide waters were allowed greater rights and privileges in the shore below high water mark, than they had in England. The new States admitted into the Union since the adoption of the Constitution have the same rights as the original States in the tide waters, and in the lands under them, within their respective jurisdictions. The United States, upon acquiring a Territory, whether by cession from one of the States, or by treaty with a foreign country, or by discovery vol. cm—1 1 2 OCTOBER TERM, 1893. Statement of the Case. and settlement, take the title and the dominion of lands below high water mark of tide waters for the benefit of the whole people, and in trust for the future States to be created out of the Territory. Upon the question how far the title extends of the owner of land bounding on a river actually navigable, but above the ebb and flow of the tide, there is a diversity in the laws of the different States; but the prevailing doctrine now is that he does not, as in England, own to the thread of the stream. The title and rights of riparian or littoral proprietors in the soil below high water mark are governed by the laws of the several States, subject to the rights granted to the United States bythe Constitution. The United States, while they hold country as a Territory, have all the powers both of national and of municipal government, and may grant, for appropriate purposes, titles or rights in the soil below high water mark of tide waters. Congress has not undertaken, by general laws, to dispose of lands below high water mark of tide waters in a Territory; but, unless in case of some international duty or public exigency, has left the administration and disposition of the sovereign rights in such waters and lands to the control of the States, respectively, when admitted into the Union. A donation land claim, bounded by the Columbia River, acquired under the act of Congress of September 27, 1850, c. 76, while Oregon was a Territory, passes no title or right in lands below high water mark, as against a subsequent grant from the State of Oregon, pursuant to its statutes. The original suit was in the nature of a bill in equity, brought June 8, 1891, by John Q. A. Bowlby and W. W. Parker against Charles W. Shively and wife, in the Circuit Court for the county of Clatsop and State of Oregon, to quiet the title to lands below high, water mark in the city of Astoria. The case, as appearing by the record, was as follows: On and before May 20, 1854, John M. Shively and wife were the owners of a donation land claim, as laid out and recorded by him under the act of Congress of September 27, 1850, c. 76, (9 Stat. 496,) commonly known as the Oregon Donation Act, embracing the then town and much of the present city of Astoria, and bounded on the north by the Columbia River. On May 20, 1854, John M. Shively laid out and caused to be recorded a plat of that claim, not only of the land above high water mark, but also of adjacent tide lands and a portion of the bed of the Columbia River, including the lands in controversy, and divided into blocks three hundred feet square, SHIVELY v. BOWLBY. 3 Statement of the Case. and separated from each other by streets thirty or sixty feet wide, some running at right angles to, and the others nearly parallel with, high water mark, the outermost of which streets were not within eight hundred feet of the ship channel. Blocks 4 and 9 were above ordinary high water mark. Block 146 was in front of block 4, and between high and low water mark. In front of block 9 came blocks 141, 126 and 127 successively. A strip about fifty feet wide, being the southern part of block 141, was above high water mark, and the whole of the rest of that block was below high water mark and above low water mark. The line of ordinary low tide was on September 18, 1876, at the north line of that block: but on December 15, 1890, and for some time before this date, was one hundred feet north of the north line of block 127. On February 18, 1860, John M. Shively and wife conveyed blocks 9, 126, 127 and 146, “in the town plat of Astoria, as laid out and recorded by John M. Shively,” to James Welch and Nancy Welch, whose title was afterwards conveyed to the plaintiffs. On June 2, 1864, John M. Shively laid out and caused to be recorded an additional plat, covering all the space between blocks 127 and 146 and the channel. In 1865, the United States issued a patent to John M. Shively and wife for the donation land claim, bounded by the Columbia River. On September 18,1876, the State of Oregon, by its governor, secretary and treasurer, acting as the board of school land commissioners, pursuant to the statute of Oregon of October 26,1874, (Laws of 1874, p. 76,) amending the statute of Oregon of October 28, 1872, (Laws of 1872, p. 129,) the provisions of both of which statutes are set forth in the margin,1 (the words printed in brackets having been in the statute of 1872 only, 1 An Act to provide for the sale of tide and overflowed lands on the sea shore and coast. Whereas, in many of the bays, harbors and inlets on the sea coast of this State, the sea is annually encroaching upon the land, washing away the shores and shoaling such bays, harbors and inlets; and 4 OCTOBER TERM, 1893. Statement of the Case. and those printed in italics having been inserted in the statute of 1874,) executed to the plaintiffs a deed of all the lands lying Whereas such encroachments can be prevented only at great expense, and by occupying and placing improvements upon the tide and overflowed lands belonging to the State; and Whereas it is desirable that facilities and encouragement should be offered to the owners of the soil abutting upon the coast in such bays, harbors and inlets to make improvements and expenditures that will stay such encroachments: Therefore, Be it enacted by the Legislative Assembly of the State of Oregon: Sec. 1. That the owner or owners of any land abutting or fronting upon or bounded by the shore of the Pacific Ocean, or of any bay, harbor or inlet [on the sea coast of this State] of the same, and rivers and their bays, in which the tide ebbs and flows, within this State, shall have the right to purchase [from the State] all the tide land belonging to [the] this State in front of [such owner or owners] the lands so owned: Provided, that if valuable improvements have been made upon any of the tide lands of this State before the title to the land on the shore shall have passed from the United States, the owner of such improvements shall have exclusive right to purchase the lands so improved, extending to low water mark, for a period of [one year] three years from the approval of [this act] the act to which this is amendatory ; Provided, further, that the Willamette River shall not be deemed a river in which the tide ebbs and flows, within the meaning of this act, or of the act to which this act is amendatory ; and the title of this State to any tide or overflowed lands upon said Willamette River is hereby granted and confirmed to the owners of the adjacent lands, or, when any such tide or overflowed lands have been sold, then in that case to the purchaser or purchasers of such tide or overflowed lands from such owner of such adjacent lands, or some previous owner thereof, as the case may be. Sec. 2. The officers of this State, who now are or who may hereafter be authorized to dispose of the school lands belonging to this State, are authorized, empowered and directed to sell such tide lands, upon proper application to purchase by parties hereby authorized to purchase; and all such tide lands shall be sold, and the money resulting from §uch sale shall be distributed, in accordance with the laws of this State, which now are or may hereafter be in force respecting the sale of the school lands of this State ; Provided, that in the certificates of sale and patents for such lands the same shall be described as---acres of tide land, or land under water belonging to this State, in front of the following described premises. (Here describe by legal subdivisions the lands in front of which said tide lands are located.) Sec. 3. Every applicant for the purchase of tide land, under section 1 of this act, shall, with his application, present to the officer or officers, who are or shall *be authorized to sell such lands, the evidences of his title to land which abuts or fronts upon or is bounded by such tide lands; and SHIVELY v. BOWLBY. 5 Statement of the Case. between high water mark and low water mark in front of block 9, including all the tide land in block 141; and also a before making such sale such officer or officers shall be satisfied that such applicant is the owner of such lands so fronting, abutting or bounded as aforesaid. Sec. 4. The value bf such tide lands shall be appraised at a certain sum per acre of the same, and such appraisal shall not value such lands at less than $1.25 for each acre of such land: Provided, the board having in charge the sale of said lands shall have power to set aside any appraisement on evidence taken of the true value of the same, and shall make another and true appraisement based on such evidence. Sec. 5. If any person or persons who, at the passage of [this act] the act of which this is amendatory [shall be] were entitled [under section 1 thereof] to purchase any tide lands under the provisions of section 1 thereof shall not, [within twelve months from the passage of this act, make application to purchase such tide lands] have applied for the same within three years from the passage of said act, or, having made such application, shall have failed to prosecute the same, as provided by law, then such [lands] land shall be open to purchase by any other person who is a citizen and resident of the State of Oregon: Provided, that when any application shall be made for the purchase of any such tide land by any person or persons other than the owner or owners of the land adjacent to such tide lands, or the purchaser or purchasers of such tide lands from such owner of adjacent lands, or some previous owner thereof, notice shall be given by said board to the owner or oioners of such adjacent lands, and to any parties who are in possession of, or who shall have improved such tide lands in any manner, and such owner or owners of such adjacent lands, or the person in possession of such tide lands by purchase from such owner of such adjacent lands, or any previous owner thereof, or who shall have improved the same, shall have sixty days after service of such notice to make application for the purchase of such tide lands, and such application shall have preference over all others, and in case any person to whom notice is hereby required to be given cannot, after due diligence, be found, notice may be given at the cost of the applicant by publication in the state paper for four successive weeks; and all applications to purchase tide lands by. the owner of adjacent lands shall be accompanied by the affidavit of the applicant, setting forth the fact that such land is not held by any other person under a deed from said applicant, or any person under whom he holds; but this [section] provision shall not apply to [any] the tide lands abutting upon [or fronting on or bounded by the sea shore, which are] lands owned by the United States: [And] provided further, that if the United States has parted or shall [hereafter] part with its title to any lands of which, at the passage of [this act] the act of which this is amendatory it [is] was the owner, [fronting or abutting upon or bounded by the sea shore,] the grantee of such lands shall have [twelve months] three years after perfecting his title from the United States to apply for [the] all tide lands in front thereof which may be owned by the State, 6 OCTOBER TERM, 1893. Statement of the Case. deed of all the tide lands in block 146; but never executed to any one a deed of any tide lands north of block 146. The plaintiffs afterwards held possession of the lands so conveyed to them, and maintained a wharf in front of block 127, which extended several hundred feet into the Columbia River, and at which ocean and river craft were wont to receive and discharge freight. On December 15, 1890, John M. Shively, having acquired whatever title his wife still had in the lands in controversy, conveyed all his right, title and interest therein to the defendant Charles W. Shively. and, in case of his failure to make such application within said period of [twelve months] three years, or, having made such application, [in case of his failure] shall fail to prosecute the same [as provided by] according to law, such tide [lands] land shall be open to purchase by any other person who is a citizen and resident of the State of Oregon. Sec. 6. Nothing in this act provided shall prevent the Legislature of this State, or the corporate authorities of any city or town thereof, from regulating the building of wharves or other improvements in any bay, harbor or inlet of this State; and nothing in this act provided shall be construed as a grant of an exclusive right to any person or persons to use the natural oyster beds of this State ; but the grantee of any land in this State, under this act, shall hold the same subject to the easement of the public, as provided by the existing laws of this State, to enter thereupon and remove, under the provisions and restrictions of the laws of this State, oysters and other shell fish therefrom. Sec. 7. All applicants to purchase lands under the provisions of this act shall, at their own expense, cause the same to be surveyed by the county surveyor of the county in which such lands are situated, such survey to conform to and connect with the surveys of the United States adjoining, as far as may be practicable; and the certificate of the county surveyor, describing the lands applied for by metes and bounds and designating the quantity thereof, shall be forwarded under the certificate of appraisement to the officers of the State who are authorized to sell the same. Sec. 8. Inasmuch as there is no law upon this subject at the present time, this act shall take effect from and after its passage. The act of 1874 contains two additional sections, the one providing that the title to all tide lands heretofore sold, and for which conveyances have already been executed, under the provisions of the act to which this is amendatory, be and the same is hereby confirmed unto the purchasers thereof; and the other providing that, inasmuch as the existing law does not authorize the sale of tide lands lying on the ocean beach and the rivers and bays thereof, this act shall take effect and be in force from and after its approval by the Governor. SHIVELY v. BOWLBY. 7 Statement of the Case. On April 7,1$91, the defendants, pretending to act under the statute of Oregon of February 18,1891, (Laws of 1891, p. 594,) executed and recorded an instrument dedicating to the public their interest in some of the streets adjacent to these lands. The plaintiffs claimed, under the deeds from the State of Oreg-on, the title in all the tide lands on the west half of block 141, on all of blocks 126 and 127 and north thereof, and on the west half of block 146 and north thereof, between the lines of low and ordinary high tide of the Columbia River ; and also claimed all the wharfing rights and privileges in front thereof to the ship channel ; and prayed that the cloud created by the defendants’ instrument of dedication might be removed, and the defendants be adjudged to have no title or right in the premises, and for further relief. The defendants denied any title or right in the plaintiffs, except in the west half of block 146 ; and, by counter-claim, in the nature of a cross bill, stating the facts above set forth, asserted that, under the patent from the United States to John M. Shively, and his deed to Charles W. Shively, the latter was the owner in fee simple of so much of the east half of block 141 as was above high water mark, and of all the tide lands and riparian and wharfing rights in front thereof to the channel, excepting blocks 126 and 127 ; and was also the owner of all the riparian and wharfing rights in front of block 4 to the channel, excepting block 146 ; and contended that the first deed from the State of Oregon to the plaintiffs conveyed no title in that part of block 141 above high water mark, or in any tide lands, and that John M. Shively’s conveyance of specific blocks by reference to his plat passed no wharfing rights in front thereof ; and prayed that Charles W. Shively might have possession of said premises, and damages against the plaintiffs for withholding the same, and further relief. The court sustained a demurrer of the plaintiffs to the counter-claim, (except as to that part of block 141 above high water mark,) and dismissed that claim ; and then, on motion of the plaintiffs, dismissed their suit, without prejudice to their interest in the subject thereof. 8 OCTOBER TERM, 1893. Opinion of the Court. The defendant Charles W. Shively appealed to the Supreme Court of the State, which affirmed the judgment, upon the ground that the grant from the United States, bounded by the Columbia River, passed no title or right in lands below high water mark, as against the subsequent deeds from the State of Oregon. 22 Oregon, 410. The said defendant thereupon sued out this writ of error, and assigned the following errors: “ First. The Supreme Court of Oregon decided that a grantee of the United States, under the act of Congress of September 27, 1850, known as the Oregon Donation Land Law, of land bounded by the tidal navigable waters of the Columbia River, obtained by virtue of said grant no exclusive access to the channel of said river, and no wharfage rights below ordinary high tide of said river in front of said high land.” “ Second. The Supreme Court of Oregon decided that said State was the absolute owner of all rights in front of the high land granted by the United States to said grantee, with said Columbia River as a boundary, below the meander line, out to the channel of said Columbia River, to the exclusion of all rights of the grantee aforesaid of the United States, under the said act of Congress of September 27, 1850.” “Third. The Supreme Court of Oregon decided that said State had the absolute power to dispose of the soil of said river and of all wharfage rights in front of the high land granted by the United States to said grantee, the predecessor of the plaintiff in error, with said Columbia River as a boundary, to a private person for a private beneficial use, and had so disposed of the same to the defendants in error.” Mr. A. II. Garland, Mr. John F. Dillon, and Mr. Sidney Dell for plaintiff in error. Mr. J. N. Dolph for defendants in error. Mr. Justice Gray, after stating the case, delivered the opinion of the court. SHIVELY v. BOWLBY. 9 Opinion of the Court. This case concerns the title in certain lands below high water mark in the Columbia River in the State of Oregon; the defendant below, now plaintiff in error, claiming under the United States, and the plaintiffs below, now defendants in error, claiming under the State of Oregon ; and is in substance this : James M. Shively, being the owner, by title obtained by him from the United States under the act of Congress of September 27, 1850, c. 76, while Oregon was a Territory, of a tract of land in Astoria, bounded north by the Columbia River, made a plat of it, laying it out into blocks and streets, and including the adjoining lands below high water mark; and conveyed four of the blocks, one above and three below that mark, to persons who conveyed to the plaintiffs. The plaintiffs afterwards obtained from the State of Oregon deeds of conveyance of the tide lands in front of these blocks, and built and maintained a wharf upon part of them. The defendant, by counter-claim, asserted a title, under a subsequent conveyance from Shively, to some of the tide lands, not included in bis former deeds, but included in the deeds from the State. The counter-claim, therefore, depended upon the effect of the grant from the United States to Shively of land bounded by the Columbia River, and of the conveyance from Shively to the defendant, as against the deeds from the State to the plaintiffs. The Supreme Court of Oregon, affirming the judgment of a lower court of the State, held the counterclaim to be invalid, and thereupon, in accordance with the state practice, gave leave to the plaintiffs to dismiss their complaint, without prejudice. Hill’s Code of Oregon, §§ 246, 393. Th® only., matter adjudged was upon the counter-claim. The judgment against its validity proceeded upon the ground th® grant from the United States upon whjcji it was f°unded passed no title or right, as against the subsequent ftpeds from the State, in lands below high water mark. This is a direct adjudication against the validity of a right or privilege claimed under a law of the United States, and presents a Tederal question within the appellate jjarjsdiiitiDn;.j2£, IO OCTOBER TERM, 1893. Opinion of the Court. this court. Rev. Stat. § 709. That jurisdiction has been repeatedly exercised, without objection or doubt, in similar cases of writs of error to the state courts. Railroad Co. v. Schurmeir, 1 Wall. 272; Packer v. Bird, 137 IT. S. 661; Knight v. United States Land Association, 142 IT. S. 161. It was argued for the defendants in error that the question presented was a mere question of construction of a grant bounded by tide water, and would have been the same as it is if the grantor had been a private person. But this is not so. The rule of construction in the case of such a grant from the sovereign is quite different from that which governs private grants. The familiar rule and its chief foundation were felicitously expressed by Sir William Scott: “All grants of the Crown are to be strictly construed against the grantee, contrary to the usual policy of the law in the consideration of grants; and upon this just ground, that the prerogatives and rights and emoluments of the Crown being conferred upon it for great purposes, and for the public use, it shall not be intended that such prerogatives, rights and emoluments are diminished by any grant, beyond what such grant by necessary and unavoidable construction shall take away.” The Rebeckah, 1 C. Rob. 227, 230. Many judgments of this court are to the same effect. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 544-548; Martin v. Waddell, 16 Pet. 367, 411; Central Transportation Co. n. Pullman's Car Co., 139 IT. S. 24, 49. In Yesler v. Washington Harbor Commissioners, at the last term, in which the writ of error was dismissed for want of jurisdiction, it did not appear that the plaintiff in error claimed under a grant from the United States. 146 IT. S. 646, 653, 654. The present case being clearly within our jurisdiction, we proceed to the consideration of its merits. The briefs submitted to the court in the case at bar, as well as in Yesler v. Washington Harbor Commissioners, above cited, and in Prosser v. Northern Pacific Railroad, (which now stands for judgment,) have been so able and elaborate, and have disclosed such a diversity of view as to the scope SHIVELY v. BOWLBY. 11 Opinion of the Court. and effect of the previous decisions of this court upon the subject of public and private rights in lands below high water mark of navigable waters, that this appears to the court to be a fit occasion for a full review of those decisions and a consideration of other authorities upon the subject. I. By the common law, both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and ofjallthe lands below high water mark, within the jurisdiction of the Crown of England, are in the King. Such waters, and the lands which they cover, either at all times, or at least when the tide is in, are incapable of ordinary and private occupation, cultivation and improvement; and their natural and primary uses ajre public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the King’s subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, belongs to the King as the sovereign ; and the dominion thereof, jus publicum, is vested in him as the representative of the nation and for the public benefit. The great authority in the law of England upon this subject is Lord Chief Justice Hale, whose authorship of the treatise De Jure Maris, sometimes questioned, has been put beyond doubt by recent researches. Moore on the Foreshore, (3d ed.) 318, 370, 413. In that treatise, Lord Hale, speaking of “ the King’s right of propriety or ownership in the sea and soil thereof ” within his jurisdiction, lays down the following propositions: “The right of fishing in this sea and the creeks and arms thereof is originally lodged in the Crown, as the right of depasturing is originally lodged in the owner of the waste whereof he is lord, or as the right of fishing belongs to him that is the owner of a private or inland river.” “ But though the King is the owner of this great waste, and as a consequent of his propriety hath the primary right of fishing in the sea and the creeks and arms thereof; yet the common people of England have regularly a liberty of fishing in the sea or creeks or arms thereof, as a public common of piscary, and may not without 12 OCTOBER TERM, 1893. Opinion of the Court. injury to their right be restrained of it, unless in such places, creeks or navigable rivers, where either the King or some particular subject hath gained a propriety exclusive of that common liberty.” “ The shore is that ground that is between the ordinary high water and low water mark. This doth prima facie and of common right belong to the King, both in the shore of the sea and the shore of the arms of the sea.” Hargrave’s Law Tracts, 11, 12. And he afterwards explains: “ Yet they may belong to the subject in point of propriety, not only by charter or grant, whereof there can be but little doubt, but also by prescription or usage.” “ But though the subject may thus have the propriety of a navigable river part of a port, yet these cautions are to be added, viz.” “ 2d. That the people have a public interest, a jus publicum, of passage and repassage with their goods by water, and must not be obstructed by nuisances.” “ For the jus privatum of the owner or proprietor is charged with and subject to that jus publicum which belongs to the King’s subjects; as the soil of an highway is, which though in point of property it may be a private man’s freehold, yet it is charged with a public interest of the people, which may not be prejudiced or damnified.” pp. 25, 36. So in the second part, De Portibus Maris, Lord Hale says that “ when a port is fixed or settled by ” “ the license or charter of the King, or that which presumes and supplies it, viz. custom and prescription; ” “ though the soil and franchise or dominion thereof prima facie be in the King, or by derivation from him in a subject; yet that jus privatum is clothed and superinduced with a jus publicum, wherein both natives and foreigners in peace with this kingdom are interested, by reason of common commerce, trade and intercourse.” “ But the right that I am now speaking of is such a right that belongs to the jure prerogative, and it is a distinct right from that of propriety; for, as before I have said, though the dominion either of franchise or propriety be lodged either by prescription or charter in a subject, yet it is charged or affected with that jus publicum that belongs to all men, and so it is charged or affected with that jus regium, or right of preroga- SHIVELY v. BOWLBY. 13 Opinion of the Court. tive of the King, so far as the same is by law invested in the King.” Hargrave’s Law Tracts, 84, 89. In England, from the time of Lord Hale, it has been treated as settled that the title in the soil of the sea, or of arms of the sea, below ordinary high water mark, is in the King, except so far as an individual or a corporation has acquired rights in it by express grant, or by prescription or usage ; Fitzwalter’s Case, 3 Keb. 242 ; N. C. 1 Mod. 105 ; 3 Shep. Ab. 97 ; Com. Dig. Navigation, A, B; Bac. Ab. Prerogative, B; The King v. Smith, 2 Doug. 441 ; Attorney General n. Parmeter, 10 Price, 378, 400,401, 411, 412, 464 ; Attorney General v. Chambers, 4 D. M. & G-. 206, and 4 D. & J. 55 ; Malcomson v. O’ Dea, 10 H. L. Cas. 591, 618, 623 ; Attorney General n. Emerson, (1891) App. Cas. 649 ; and that this title, jus privatum, whether in the King or in a subject, is held subject to the public right, jus publicum, of navigation and fishing. Attorney General n. Parmeter, above cited; Attorney General v. Johnson, 2 Wilson Ch. 87, 101-103 ; Gann v. Free Fishers of Whitstable, 11 H. L. Cas. 192. The same law has been declared by the House of Lords to prevail in Scotland. Smith v. Stair, 6 Bell App. Cas. 487 ; Lord Advocate v. Hamilton, 1 Macq. 46, 49. is equally well settled that a grant from the sovereign of land bounded by the sea, or by any navigable tide water, does not pass any title below high water mark, unless either thé languageof the grant, or long usage under it, clearly indicates that such was the intention. Lord Hale, in Hargrave’s Law Tracts, 17, 18, 27 ; Somerset v. Fogwell, 5 B. & C. 875, 885 ; & C. 8 D. & R. 747, 755 ; Smith v. Stair, 6 Bell App. Cas. 487; United States v. Pacheco, 2 Wall. 587. By the law of England, also, every building or wharf erected, without license, below high water mark, where the soil is the King’s, is a purpresture, and may, at the suit of the King, either be demolished, or be seized and rented for his benefit, if it is not a nuisance to navigation. Lord Hale, in Hargrave’s Law Tracts, 85; Mitf. Pl. (4th ed.) 145 ; Blundell v. Catterall, 5 B. & Aid. 268, 298, 305; Attorney General v. Richards, 2 Anstr. 603, 616 ; Attorney General v. Parmeter, 10 Price, 378, 411, 464; Attorney General v. Terry, L. R. 9 Ch. 425, 429, 14 OCTOBER TERM, 1893. Opinion of the Court. note; Weber v. Harbor Commissioners, 18 Wall. 57, 65; Ba/rney v. Keokuk, 94 U. S. 324, 337. By recent judgments of the House of Lords, after conflicting decisions in the courts below, it has been established in England, that the owner of land fronting on a navigable river in which the tide ebbs and flows has a right of access from his land to the river; and may recover compensation for the cutting off of that access by the construction of public works authorized by an act of Parliament which provides for compensation for “injuries affecting lands,” “including easements, interests, rights and privileges in, over or affecting lands.” The right thus recognized, however, is not a title in the soil below high water mark, nor a right to build thereon, but a right of access only, analogous to that of an abutter upon a highway. Buccleuch v. Metropolitan Board of Works, L. B. 5 H. L. 418; Lyon v. Fishmongers Co., 1 App. Cas. 662. “ That decision,” said Lord Selborne, “ must be applicable to every country in which the same general law of riparian rights prevails, unless excluded by some positive rule or binding authority of the lex loci J North Shore Railway v. Pion, 14 App. Cas. 612, 620, affirming 14 Canada Sup. Ct. 677. II. The common law of England upon this subject, at the time of the emigration of our ancestors, is the law of this country, except so far as it has been modified by the charters, constitutions, statutes or usages of the several Colonies and States, or by the Constitution and laws of the United States. The English possessions in America were claimed by right of discovery. Having been discovered by subjects of the King of England, and taken possession of in his name, by his authority or with his assent, they were held by the King as the representative of and in trust for the nation; and all vacant lands, and the exclusive power to grant them, were vested in him. The various charters granted by different monarchs of the Stuart dynasty for large tracts of territory on the Atlantic coast conveyed to the grantees both the territory described and the powers of government, including the property and the dominion of lands under tide waters. Andjipon the Ameri- SHIVELY v. BOWLBY. 15 Opinion of the Court. can Revolution, all the rightsof the Crown and of Parliament vested in the several Stat,est,subject to the rights surrendered to the national government by the Constitution of the United States. Johnson v. McIntosh, 8 Wheat. 543, 595 ; Martin v. MaJFell, 16 Pet. 367, 408-410, 414; Commonwealth v. Rox-bury, 9 Gray, 451, 478-481; Stevens v. Paterson de Newark Railroad, 5 Vroom, (34 N. J. Law,) 532 ; People v. New York <& Staten Island Ferry, 68 N. Y. 71. The leading case in this court, as to the title and dominion of tide waters and of the lands under them, is Martin v. Waddell, (1842,) 16 Pet. 367, which arose in New Jersey, and was as follows : The charters granted by Charles II. in 1664 and 1674 to his brother the Duke of York (afterwards James II.) included New York and New Jersey and the islands of Martha’s Vineyard and Nantucket, and conveyed to the Duke the territories therein described, “ together with all the lands, islands, soils, rivers, harbors, mines, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings, huntings and fowling, and all other royalties, profits, commodities and hereditaments,” thereto belonging or appertaining, and all the “estate, right, title, interest, benefit, advantage, claim and demand ” of the King, of, in or to the same ; as well as full powers of government : provided, however, that all statutes, ordinances and proceedings should not be contrary to, but, as near as conveniently might be, agreeable to the laws, statutes and government of England. All these rights, both of property and of government, in a part of those territories, were granted by the Duke of York to the Proprietors of East Jersey; and they, in 1702, surrendered to Queen Anne all “the powers, authorities and privileges of and concerning the government of” the Province, retaining their rights of private property. Learning and Spicer’s New Jersey Grants, 4, 5, 42, 43, 148, 149, 614, 615. An action of ejectment was brought in the Circuit Court of the United States for the District of New Jersey, for land under tide waters in Raritan Bay and River, to which the plaintiff claimed title under specific conveyances of that land from the Proprietors of East Jersey, and of which the defendants were in possession, for tho purpose of 16 OCTOBER TERM, 1893. Opinion of the Court. planting and growing oysters, under a statute passed by the legislature of the State of New Jersey in 1824. This court, following, though not resting wholly upon, the decision of the Supreme Court of New Jersey in Arnold v. Mundy, 1 Halsted, (6 N. J. Law,) 1, gave judgment for the defendants, for reasons assigned in the opinion delivered by Chief Justice Taney, which cannot be better summed up than in his own words: “ The country mentioned in the letters patent was held by the King in his public and regal character as the representative of the nation, and in trust for them.” 16 Pet. 409. By those charters, in view of the principles stated by Lord Hale, in the passage above quoted concerning the right of fishing, “ the dominion and propriety in the navigable waters, and in the soils under them, passed, as a part of the prerogative rights annexed to the political powers conferred on the Duke; ” and “ in his hands they were intended to be a trust for the common use of the new community about to be established ” — “ a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery, as well for shell fish as floating fish ” — and not as “ private property, to be parcelled out and sold by the Duke for his own individual emolument.” “ And in the judgment of the court, the lands under the navigable waters passed to the grantee as one of the royalties incident to the powers of government; and were to be held by him in the same manner and for the same purposes that the navigable waters of England, and the soils under them, are held by the Crown.” pp. 411-413. The surrender by the proprietors in 1702 restored to the Crown all “ its ordinary and well known prerogatives,” including “the great right of dominion and ownership in the rivers, bays and arms of the sea, and the soils under them,” “in the same plight and condition in which they originally came to the hands of the Duke of York.” p. 416. “When the Revolution took place, the people of each State became themselves sovereign; and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the Constitution to the general government.” p. 410. SHIVELY v. BOWLBY. 17 Opinion of the Court. It was in giving the reasons for holding that the royal charters did not sever the soil under navigable waters, and the public right of fishing, from the powers of government, and in speaking of the effect which grants of the title in the sea shore to others than the owner of the upland might have, not upon any peculiar rights supposed to be incident to his ownership, but upon the public and common rights in, and the benefits and advantages of, the navigable waters, which the colonists enjoyed “ for the same purposes, and to the same extent, that they had been used and enjoyed for centuries in England,” and which every owner of the upland therefore had in common with all other persons, that Chief Justice Taney, in the passage relied on by the plaintiff in error, observed : “ Indeed, it could not well have been otherwise; for the men who first formed English settlements could not have been expected to encounter the many hardships that unavoidably attended their emigration to the New World, and to people the banks of its bays and rivers, if the land under the water at their very doors was liable to immediate appropriation by another, as private property; and the settler upon the fast land thereby excluded from its enjoyment, and unable to take a shell fish from its bottom, or fasten there a stake, or even bathe in its waters, without becoming a trespasser upon the rights of another.” 16 Pet. 414. The full extent of that decision may be more clearly appreciated by referring to the dissenting opinion of Mr. Justice Thompson in that case, and to the unanimous judgment of the court in the subsequent case of Den y. Jersey Co., (1853,) 15 How. 426. In Martin v. Waddell, Mr. Justice Thompson unavailingly contended that the title in the lands under the navigable tide water, the jus privatum, as distinguished from the jus publicum, passed as private property from the King to the Duke, and from him to the Proprietors of East Jersey, and was unaffected by their surrender to Queen Anne, and therefore passed from them to the plaintiff, subject indeed to the public rights of navigation, passing and repassing, and perhaps of fishery for floating fish, but not to the right of planting, VOL. CW—2 18 OCTOBER TERM, 1893. Opinion of the Court. growing and dredging oysters; and also that, if the King held this land as trustee for the common benefit of all his subjects, and inalienable as private property, the State of New Jersey, on succeeding to his rights at the Revolution, could not hold it discharged of the trust, and dispose of it to the private and exclusive use of individuals. 16 Pet. 418-434. In Den v. Jersey Co., which was ejectment for land under tide water, that had been reclaimed and occupied as building lots by a corporation, pursuant to an act of the legislature of the State of New Jersey, the plaintiff, claiming under a conveyance from the Proprietors of East Jersey, contended that the fee of the soil under the navigable waters of that part of the State was conveyed to the Proprietors as private property, subject to the public use; that, the public use having ceased as to the land in question, they were entitled to the exclusive possession; and that nothing but the right of fishery was decided in Martin v. Waddell. But the court, again speaking by Chief Justice Taney, held that the decision in Martin v. Waddell, being in ejectment, necessarily determined the title to the soil, and governed this case; and therefore gave judgment for the grantee of the State, and against the claimant under the Proprietors. 15 How. 432, 433. III. The governments of the several Colonies, with a view to induce persons to erect wharves for the benefit of navigation and commerce, early allowed to the owners of lands bounding on tide waters greater rights and privileges in the shore below high water mark, than they had in England. But the nature and degree of such rights and privileges differed in the different Colonies, and in some were created by statute, while in others they rested upon usage only. In Massachusetts, by virtue of an ancient colonial enactment, commonly called the Ordinance of 16-41, but really passed in 1647, and remaining in force to this day, the title of "the owner of land bounded by tide water extends from high water mark over the shore or flats to low water mark, if not beyond one hundred rods. The private right thus created in the flats is not a mere easement, but a title in fee, SHIVELY v. BOWLBY. 19 Opinion of the Court. which will support a real action, or an action of trespass quare clausum firegit, and which may be conveyed by its owner with or without the upland; and which he may build upon or enclose, provided he does not impede the public right of way over it for boats and vessels. But his title is subject to the public rights of navigation and fishery ; and therefore, so long as the fiats have not been built upon or enclosed, those public rights are not restricted or abridged; and the State, in the exercise of its sovereign power of police for the protection of harbors and the promotion of commerce, may, without making compensation to the owners of the flats, establish harbor lines over those flats, beyond which wharves shall not thereafter be built, even when they would be no actual injury to navigation. Mass. Colony Laws, (ed. 1660,) 50; (ed. 1872,) 90, 91; Boston v. Lecraw, 17 How. 426, 432, 433; Richardson v. Boston, 19 How. 263, and 24 How. 188; Commonwealth v. Alger, 7 Cush. 53, 67-81. It is because of the ordinance vesting the title in fee of the flats in the owner of the upland, that a conveyance of his land bounding on the tide water, by whatever name, whether “sea,” “bay,” “harbor” or “ river,” has been held to include the land below high water mark as far as the grantor owns. Boston v. Richardson, 13 Allen, 146, 155, and 105 Mass. 351, 355, and cases cited. As declared by Chief Justice Shaw, grants by the Colony of Massachusetts, before the ordinance, of lands bounded by tide water did not include any land below high water mark. Commonwealth v. Alger, 7 Cush. 53, 66; Commonwealth v. Roxbury, 9 Gray, 451, 491-493. See also Litchfield v. Scituate, 136 Mass. 39. The decision in Manchester n. Massachusetts, 139 IT. S. 240, affirming 152 Mass. 230, upheld the jurisdiction of the State, and its authority to regulate fisheries, within a marine league from the coast. The rule or principle of the Massachusetts ordinance has been adopted and practised on in Plymouth, Maine, Nan-and Martha’s Vineyard, since their union with the Massachusetts Colony under the Massachusetts Province Charter of 1692. , Commonwealth v. Alger, 7 Cush. 53, 76, and other authorities collected in 9 Gray, 523. 20 OCTOBER TERM, 1893. Opinion of the Court. In New Hampshire, a right in the shore has been recognized to belong to the owner of the adjoining upland, either by reason of its .having once been under the jurisdiction of Massachusetts, or by early and continued usage. Hudd v. Hobbs, 17 N. H. 524, 526; Clement v. Burns, 43 N. H. 609, 621; Concord Co. v. Robertson, 66 N. H. 1, 26, 27. In Rhode Island, the owners of land on tide water have no "title below high water mark; but by long usage, apparently sanctioned by a colonial statute of 1707, they have been accorded the right to build wharves or other structures upon the flats in front of their lands, provided they do not impede navigation, and have not been prohibited by the legislature; and they may recover damages against one who, without authority from the legislature, fills up such flats so as to impair that right. Angell on Tide Waters, (2d ed.) 236, 237; Folsom v. Freeborn, 13 R. I. 200, 204, 210. It would seem, however, that the owner of the upland has no right of action against any one filling up the flats by authority of the State for any public purpose. Gerhard v. Seekonk Commissioners, 15 R. I. 334; Clark v. Providence, 16 R. I. 337. In Connecticut, also, the title in the land below high water mark is in the State. But by ancient usage, without any early legislation, the proprietor of the upland has the sole right, in the nature of a franchise, to wharf out and occupy the flats, even below low water mark, provided he does not interfere with navigation; and this right may be conveyed separately from the upland; and the fee in flats so reclaimed vests in him. Ladies' Seamen? s Friend Society v. Halstead, 58 Conn. 144, 150-152; Prior n. Swartz, 62 Conn. 132, 136-138. The exercise of this right is subject to all regulations the State may see fit to impose, by authorizing commissioners to establish harbor lines, or otherwise. State v. Sa/rgent, 45 Conn. 358. But it has been intimated that it cannot be appropriated by the State to a different public use, without compensation. Farist Co. v. Bridgeport, 60 Conn. 278. In New ^Yorkfr it-was long considered as settled law -that— (the State succeeded to all the rights of the Crown and Par- SHIVELY v. BOWLBY. 21 Opinion of the Court. liament of England in lands under tide waters/and that the owner of land bounded by a navigable river within the ebb and flow of the tide had no private title or right in the shore below high water mark, and was entitled to no compensation for the construction, under a grant from the legislature of the State, of a railroad along the shore between high and low water mark, cutting off all access from his land to the river, except across the railroad. Lansing v. Smith, 4 Wend. 9, 21; Gould v. Hudson River Railroad, 6 N. Y. 522; People v. Tibbetts, 19 N. Y. 523, 528; People v. Canal Appraisers, 33 N. Y. 461, 467; Langdon v. New York, 93 N. Y. 129, 144, 154-156; New York v. Hart, 95 N. Y. 443, 450, 451, 457; In re Staten Island Rapid Transit Co., 103 N. Y. 251, 260. The owner of the upland has no right to wharf out, without legislative authority; and titles granted in lands under tide water are subject to the right of the State to establish harbor lines. People n. Vanderbilt, 26 N. Y. 287, and 28 N. Y. 396; People v. New York & Staten Island Ferry, 68 N. Y. 71. The law of that State, as formerly understood, has been recently so far modified as to hold — in accordance with the decision in Buccleuch n. Metropolitan Board of Works, L. R. 5 H. L. 418, and contrary to the decisions in Gould v. Hudson' River Railroad, above cited, and in Stevens v. Paterson & Newark Railroad, 5 Vroom, (34 -N. J. Law,) 532 — that the owner of land bounded by tide water may maintain an action against a railroad corporation constructing its road by authority of the legislature so as to cut off his access to the water. TFiTOms v. New York, 105 N. Y. 419, 436; Kane v. New York Elevated Railroad, 125 N. Y. 164, 184; Rumsey n. New York do New England Railroad, 133 N. Y. 79, and 136 N. Y. 543. law of New Jersey upon this subject was recognized and clearly stated in a recent judgment of this court, in whiqh a grant by commissioners under a statute of the State to a railroad corporation, of a tract of land below high water mark, was heldto preclude a city from continuing over the A highway dedicated to the public by the owner of the “Tn the examination of the effect to be given to 22 OCTOBER TERM, 1893. Opinion of the Court. the riparian laws of the State of New Jersey,”; said Mr. Justice Matthews, speaking for the court, “ it is to hejjorne in mind' thatthe lands below high water mark, constituting the shores and submerged lands of the navigable .waters of tKe” State,"“were, according to its laws, the property ^of the State as sovereign. Over these lands it had absolute and” exclusive* dominion, including the right to appropriate them to such uses as might best serve its views of the public interest, subject to the power conferred by the Constitution upon Congress to regulate foreign and interstate commerce. The object of the legislation in question was evidently to define the relative rights of the State, representing the public sovereignty and interest, and of the owners of land bounded by high water mark.” “ The nature of the title in the State to lands under tide water was thoroughly considered by the Court of Errors and Appeals of New Jersey in the case of Stevens v. Paterson & Newark Railroad, 5 Vroom, (34 N. J. Law,) 532. It was there declared (p. 549) ‘ that all navigable waters within the territorial limits of the State, and the soil under such waters, belong in actual propriety to the public; that the riparian owner, by the common law, has no peculiar rights in this public domain as incidents of his estate; and that the privileges he possesses by the local custom or by force of the wharf act, to acquire such rights, can, before possession has been taken, be regulated or revoked at the will of the legislature. The result is that there is no legal obstacle to a grant by the legislature to the defendants of that part of the property of the public which lies in front of the lands of the plaintiff, and which is below high water mark.’ It was therefore held, in that case, that it was competent for the legislative power of the State to grant to a stranger lands constituting the shore of a navigable river under tide water, below high water mark, to be occupied and used with structures and improvements in such a manner as to cut off the access of the riparian owner from his land to the water, and that without making compensation to him for such loss.” Hoboken v. Pennsylvania Railroad, (1887,) 124 U. S. 656, 688, 690, 691. SHIVELY v. BOWLBY. 23 Opinion of the Court. The arguments on both sides of that proposition, upon general principles, as well as under the law of New Jersey, are nowhere more strongly and fully stated than by Chief Justice Beasley delivering the opinion of the majority of the court, and by Chancellor Zabriskie speaking for the dissenting judges, in Stevens v. Paterson <& Newark Railroad, above cited, decided in 1870. Two years later, Chancellor Zabriskie recognized it as settled by that case, “ that the lands under water, including the shore on the tide waters of New Jersey, belong absolutely to the State, which has the power to grant them to any one, free from any right of the riparian owner in them.” Pennsylvania Railroad v. New York de Long Branch Railroad, 8 C. E. Green, (23 N. J. Eq.) 157, 159. See also New York dec. Railroad v. Yard, 14 Vroom, (43 N. J. Law,) 632, 636; American Dock Co. v. Trustees of Public Schools, 12 Stewart, (39 N. J. Eq.) 409, 445. In Pennsylvania, likewise, upon the Revolution, tlje State succeeded to the rights, both of the^Crown and of the Proprietors,, in the navigable, waters and the soil under them. Rundle v. Delaware de Raritan Canal, 14 How. 80, 90; Gilman v. Philadelphia, 3 Wall. 713, 726. But by the established law of the State, the owner of lands bounded by navigable water has the title in the soil between high and low water mark, subject to the public right of navigation, and to the authority of the legislature to make public improvements upon it, and to regulate his use of it. Tinicum Co. v. Carter, 61 Penn. St. 21, 30, 31; Wainwright v. McCullough, 63 Penn. St. 66, 74; Zugv. Commonwealth, 70 Penn. St. 138; Philadelphia v. Scott, 81 Penn. St. 80, 86; Wall v. Pittsburgh Harbor Co., 152 Penn. St. 427. In Delaware, as has been declared by its Supreme Court, “ all navigable rivers within the State belong to the State, not in eminent domain, but in actual propriety.” Bailey v. Philadelphia, Wilmington de Baltimore Railroad, 4 Harrington, (Del.) 389, 395. And see Willson v. Blackbird Creek Co., 2 Pet. 245, 251. In Maryland, the owner of land bounded by tide water is authorized, according to various statutes beginning in 1745, to 24 OCTOBER TERM, 1893. Opinion of the Court. build wharves or other improvements upon the flats in front of his land, and to acquire a right in the land so improved. Casey v. Inloes, 1 Gill, 430; Baltimore v. McKim, 3 Bland, 453 ; Goodsell v. Lawson, 42 Maryland, 348 ; Garitee v. Baltimore, 53 Maryland, 422; Horner v. Pleasants, 66 Maryland, 475 ; Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U. S. 672, 675, 684, in which the question was who was the riparian owner, and as such entitled to wharf out into the Potomac River in the District of Columbia under the authority to do so expressly conferred under the laws of Maryland in force in the District. This court, speaking by. Mr. Justice Curtis, in affirming the right of the State of Maryland to protect the oyster fishery within its boundaries, said Whoever soil belqw low water mark is the subject of exclusive propriety and ownership belongs to the State on whose mari-tlme border and within whose territory it lies, subject to any lawful grants of that soil by the State, or the sovereign power which governed its territory before the Declaration of Independence. But this soil is held by the State, not only subject tofoutm some sense in trust for, the enjoyment of certain public rights, among which is the common liberty of taking fish, as well shell fish as floating fish.” Smith v. Maryland, 18 How. 71, 74. The State of Virginia was held by this court, upon like grounds, to have the right to prohibit persons not citizens of the State from planting oysters in the soil covered by tide waters within the State, Chief Justice Waite saying: “The principle has long been settled in this court, that each State owns the beds of all tide waters within its jurisdiction, unless ‘they have been granted away. In like manner, the Stales own the tide waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the State represents its people, and the ownership is that of the people in their united sovereignty. The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States.” McCready v. Virginia, 94 U. S. 391, 394. In Virginia, by virtue of statutes SHIVELY v. BOWLBY. 25 Opinion of the Court. beginning in 1679, the owner of land bounded by tide waters has the title to ordinary low water mark, and the right to build wharves, provided they do not obstruct navigation. 5 Opinions of Attorneys General, 412, 435-440; French v. Bankhead, 11 Grattan, 136, 159-161; Hardy v. McCullough, 23 Grattan, 251, 262; Norfolk v. Cooke, 27 Grattan, 430,434, 435; Garrison v. Hall, T5 Virginia, 150. In North Carolina, when not otherwise provided by statute, th J private ownership of land bounded by navigable waters stops at high water mark, and the land between high and low water mark belongs to the State and may be granted by it. Hatfield v. G-rimstedd, 't Ireclell, 139; Lewis v. Keeling, 1 Jones, (No. Car.) 299, 306. The statutes of that State, at different periods, have either limited grants of land, bounded on navigable waters, to high water mark; or have permitted owners of the shore to make entries of the land in front, as far as deep water, for the purpose of a wharf; and any owner of the shore appears to have the right to wharf out, subject to such regulations as the legislature may prescribe for the protection of the public rights of navigation and fishery. Wilson v. Forbes, 2 Dev. 30; Collins v. Benbury, 3 Iredell, 277, and 5 Iredell, 118; Gregory v. Forbes, 96 No. Car. 77; State v. Narrows Island Club, 100 No. Car. 477; Bond v. Wool, 107 No. Car. 139.' Iu South Carolina, the rules of the common law, by which Vie1- th® under tide waters is in the State, and a landbounded by such waters passes no title below waterjnark, appear to be still in force. State v. Pacific So. Car. 50; ¡State v. Pinckney, 22 So. Car. in Georgia, also, the rules of the common law would seem be force as to tide waters, except as affected by statutes of the State providing that the right of the owner of lands adjacent to navigable streams extends to low water mark in of Jhe^stream.” Georgia Code of 1882, §§ 962, 2229, 2230; Howard \\ Ingersoll, 13 How. 381, 411, 421; Alabama v. Georgia, 23 How. 505; Savannah v. State, 4 Georgia, 26, 39; Young v. Harrison, 6 Georgia, 130, 141. 26 OCTOBER TERM, 1893. Opinion of the Court. The foregoing summary of the laws of the original States shows that there is no universal and uniform law upon the subject; but that each State has dealt with the lands under the tide waters within its borders according to its own views of justice and policy, reserving its own control over such lands, or granting rights therein to individuals or corporations, whether owners of the adjoining upland or not, as it considered for the best interests of the public. Great caution, therefore, is necessary in applying precedents in one State to cases arising in another. IV. The new States admitted into the Union since the adoption of the Constitution have the same rights as the original States in the tide waters, and in the lands^ below the high water mark, within their respective jurisdictions. The acFof 1783 and the deed of 1784, by which the State of Virginia, before the adoption of the Constitution, ceded “unto the United States in Congress assembled, for the benefit of the said States, all right, title and claim, as well of soil as jurisdiction,” to the Northwest Territory, and the similar cession by the State of Georgia to the United States in 1802 of territory including great part of Alabama and of Mississippi, each provided that the territory so ceded should be formed into States, to be admitted, on attaining a certain population, into the Union, (in the words of the Virginia cession) “having the same rights of sovereignty, freedom and independence as the other States,” or (in the words of the Ordinance of Congress of July 13, 1787, for the government of the Northwest Territory, adopted in the Georgia cession) “ on an equal footing with the original States in all respects whatever;” and that “all the lands within” the territory so ceded to the United States, and not reserved or appropriated for other purposes, should be considered as a common fund for the use and benefit of the United States. Charters and Constitutions, 427, 428, 432, 433; Clayton’s Laws of Georgia, pp. 48-51; Acts of Congress of April 7, 1798, c. 28; 1 Stat. 549; May 10, 1800, c. 50, and March 3, 1803, c. 27; 2 Stat. 69, 229; Pollard v. Hagan, 3 How. 212, 221, 222. In Pollard n. Hagan, (1844,) this court, upon full con- SHIVELY v. BOWLBY. 27 Opinion of the Court. sideration, (overruling anything to the contrary in Pollard v. Kibbe, 14 Pet. 353; Mobile v. Eslava, 16 Pet. 234; Mobile v. Hallett, 16 Pet. 261; Mobile v. Emanuel, 1 How. 95; and Pollard v. Files, 2 How. 591,) adjudged that upon the admission of the State of Alabama into the Union* the title in the lands below high water mark of navigable waters passed to the State, and could not afterwards be granted away by the Congress of the United States. Mr. Justice McKinley, delivering the opinion of the court, (Mr. Justice Catron alone dissenting,) said: “We think a proper examination of this subject will show, that the United States never held any municipal sovereignty, jurisdiction or right of soil, in and to the territory of which Alabama or any of the new States were formed ; except for temporary purposes, and to execute the trusts created by the acts of the Virginia and Georgia legislatures, and the deeds of cession executed by them to the United States, and the trust created by the treaty with the French Republic of the 30th of April, 1803, ceding Louisiana.” “When the United States accepted the cession of the territory, they took upon themselves the trust to hold the municipal eminent domain for the new States, and to invest them with it to the same extent, in all respects, that it was held by the States ceding the territories.” “ When Alabama was admitted into the Union, on an equal footing with the original States, she succeeded to all the rights of sovereignty, jurisdiction and eminent domain, which Georgia possessed at the date of the cession, except so far as this right was diminished by the public lands remaining in the possession and under the control of the United States, for the temporary purposes provided for in the deed of cession and the legislative acts connected with it. Nothing remained to the United States, according to the terms of the agreement, but the public lands.” 3 How. 221-223. “ Alabama is therefore entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it before she ceded it to the United States. To maintain any other doctrine is to deny that Alabama has been admitted into the Union on an equal footing with the 28 •OCTOBER TERM, 1893. Opinion of the Court. original States, the Constitution, laws and compact to the contrary notwithstanding.” “Then to Alabama belong the navigable waters, and soils under them, in controversy in this case, subject to the rights surrendered by the Constitution to the United States.” 3 How. 228, 229. So much of the reasoning of the learned justice, as implied that the title in the land below high water mark could not have been granted away by the United States after the deed of cession of the territory and before the admission of the State into the Union, was not necessary to the decision, which involved only a grant made by Congress after the admission of Alabama, and which was followed in two similar cases in which Congress, after the admission of the State, had undertaken to confirm Spanish grants, made after the Treaty of San Ildefonso of 1800, and therefore passing no title whatever. Goodtitle v. Kibbe, (1850,) 9 How. 471; Hallett v. Beebe, (1851,) 13 How. 25. In the first of these cases, Chief Justice Taney, speaking for the whole court, of which Mr. Justice McKinley was still a member, said: “Undoubtedly Congress might have granted this land to the patentee, or confirmed his Spanish grant, before Alabama became a State. But this was not done. And the existence of this imperfect and inoperative Spanish grant could not enlarge the power of the United States over the place in question after Alabama became a State, nor authorize the general government to grant or confirm a title to land when the sovereignty and dominion over it had become vested in the State.” 9 How. 478. V. That these decisions do not, as contended by the learned counsel for the plaintiff in error, rest solely upon the terms of the deed of cession from the State of Georgia to the United States, clearly appears from the constant recognition of the same doctrine as applicable to California, which was acquired from Mexico by the Treaty of Guadalupe Hidalgo of 1848. 9 Stat. 926 ; United States v. Pacheco, (1864,) 2 Wall. 587; Mumford v. Wardwell, (1867,) 6 Wall. 423; Weber v. Harbor Commissioners, (1874,) 18 Wall. 57; Packer n. Bird, (1891,) 137 U. S. 661, 666; San Francisco v. Le Boy, (1891,) 138 U. S. 656, 671; Knight n. United States La/nd Association, (1891,) 142 U. S. 161. SHIVELY v. BOWLBY. 29 Opinion of the Court. In United States v. Pacheco, it was decided that a grant from the Mexican government, confirmed by a decree of a court of the United States under authority of Congress, of land bounded “ by the bay ” of San Francisco, did not include land below ordinary high water mark of the bay ; because, as was said by Mr. Justice Field, in delivering judgment, “By the common law, the shore of the sea, and, of course, of arms of the sea, is the land between ordinary high and low water mark, the land over which the daily tides ebb and flow. When, therefore, the sea, or a bay, is named as a boundary, the line of ordinary high water mark is always intended where the common law prevails. And there is nothing in the language of the decree which requires the adoption of any other rule in the present case. If reference be had to the rule of the civil law, because the bay is given as a boundary in the grant from the Mexican government, the result will be equally against the position of the appellants.” 2 Wall. 590. The State of California was admitted into the Union in 1850, and within a year afterwards passed statutes, declaring that a certain line designated upon a recorded plan should be and remain a permanent water front ” of the city of San Francisco ; reserving to the State “ its right to regulate the construction of wharves or other improvements, so that they shall not interfere with the shipping and commercial interests of the bay and harbor ; ” and providing that the city might construct wharves at the end of all the streets commencing with the bay, not exceeding two hundred yards beyond that line, and that the spaces beyond, between the wharves, should remain fifee from obstructions and be used as public slips. In Weber v. Harbor Commissioners, it was held that a person afterwards acquiring the title of the city in a ^and wharf below high water mark had no right to complain of works constructed by commissioners of the State, un(ler authority of the legislature, for the protection of the harbor and the convenience of shipping, in front of his wharf, ana preventing the approach of vessels to it; and Mr. Justice Field, in delivering judgment, said: “Although the title to the soil under the tide waters of the bay was acquired by the 30 OCTOBER TERM, 1893. Opinion of the Court. United States by cession from Mexico, equally with the title to the upland, they held it only in trust for the future State. Upon the admission of California into Jthe Union upon equal footing with the original States, absolute property in, and dominion and sovereignty over, all soils under the tide wafers within her limits passed to the State, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the w’aters, so far as such navigation might be required by the necessities of, commerce with foreign nations or among the several States, the regulation of which was vested in the general government.” 18 Wall. 65, 66. In the very recent case of Knight v. United States Land Association, Mr. Justice Lamar, in delivering judgment, said: “ It is the settled rule of law in this court that absolute property in, and dominion and sovereignty over, the soils under the tide waters in the original States were reserved to the several States ; and that the new States since admitted have the same rights, sovereignty and jurisdiction in that behalf, as the original States possess within their respective borders. Upon the acquisition of the territory from Mexico, the United States acquired the title to tide lands, equally with the title to upland; but with respect to the former they held it only in trust for the future States that might be erected out of such territory.” 142 U. S. 183. In support of these propositions he referred to Martin v. Waddell, Pollard v. Hagan, Mumford v. Wardwell, and Weber v. Harbor Commissioners, above cited. In that case, it was further held, as it had previously been declared in San Francisco v. Le Roy, above cited, that “ this doctrine does not apply to lands that had been previously granted to other parties by the former government, or subjected to trusts which would require their disposition in some other way;” and that when the United States acquired California from Mexico by the treaty, they were bound by its stipulations, and by the principles of international law, to protect all rights of property acquired under previous lawful grants from the Mexican government. 142 U. S, 183, 184, SHIVELY v. BOWLBY. 31 Opinion of the Court. And it was therefore adjudged that under a boundary “by the bay,” in the Mexican grant of the pueblo of San Francisco, duly confirmed by a decree of a court of the United States, and defined by a survey under the authority of the Secretary of the Interior as following the general line of high water mark of the bay, crossing the mouth of a tide water creek, the title of lands inside of that line, although below high water mark of the creek, was included, and therefore did not pass by a deed from the State. VI. The decisions of this court, referred to at the bar, regarding the shores of waters where the ebb and flow of the tide from the se'a is not felt, but which are really navigable, should be considered with reference to the facts upon which they were made, and keeping in mind the local laws of the different States, as well as the provisions of the acts of Congress relating to such waters. * By the law of England, Scotland and Ireland, the owners of the banks prima facie own the beds of all fresh water rivers above the ebb and flow of the tide, even if actually navigable, to the thread of the stream, usque adfilum aquae. Lord Hale, in Hargrave’s Law Tracts, 5; Bickett v. Morris, L. B. 1 H. L. Sc. 47; Murphy v. Ryan, Ir. R. 2 C. L. 143; Orr Ewing v. Colquhoun, 2 App. Cas. 839. The rule of the common law on this point appears to have been followed in all the original States — except in Pennsylvania, Virginia and North Carolina, and except as to great rivers such as the Hudson, the Mohawk and the St. Lawrence in New York — as well as in Ohio, Illinois, Michigan and Wisconsin. But it has been wholly rejected, as to rivers navigable in fact, in Pennsylvania, Virginia and North Carolina, and in most of the new States. For a full collection and careful analysis of the cases, see Gould on Waters, (2d ed.) §§ 56-78. The earliest judicial statement of the now prevailing doctrine in this country as to the title in the soil of rivers really navigable, although above the ebb and flow of the tide, is to be found in a case involving the claim of a riparian proprietor to an exclusive fishery in the Susquehanna River, in which 32 OCTOBER TERM, 1893. Opinion of the Court. Chief Justice Tilghman in 1807, after observing that the rule of the common law upon the subject had not been adopted in Pennsylvania, said : “ The common law'principle is, in fact, that the owners of the banks have no right to the water of navigable rivers. Now the Susquehanna is a navigable river, and therefore the owners of its banks have no such right. It is said, however, that some of the cases assert that by navigable rivers are meant rivers in which there is no flow or reflow of the tide. This definition may be very proper in England, where there is no river of considerable importance as to navigation, which has not a flow of the tide; but it would be highly unreasonable when applied to our large rivers, such as the Ohio, Allegheny, Delaware, Schuylkill, or Susquehanna and its branches.” Carson v. Blazer, 2 Binney, 475, 477, 478. It was because of this difference in the law of Pennsylvania from that of England and of most of the older States, and because the decisions of the Supreme Court of Pennsylvania upon the subject were deemed binding precedents, that this court, speaking by Mr. Justice Grier, held that riparian owners, erecting dams on navigable rivers in Pennsylvania, did so only by license from the State, revocable at its pleasure, and could therefore claim no compensation for injuries caused to such dams by subsequent improvements under authority of the State for the convenience of navigation; and also that by the law of Pennsylvania preemption rights to islands in such rivers could not be obtained by settlement. Rundle v. Delaware & Raritan Canal, (1852,) 14 How. 80, 91, 93, 94; Fisher v. Haldeman, (1857,) 20 How. 186, 194. By the acts of Congress for the sale of the public lands, those lands are to be divided into townships, six miles square, unless the line of an Indian reservation, or of land previously surveyed and patented, or “the course of navigable rivers, may render it impracticable,” and into sections and quarter sections, bounded by north and south and east and west lines, running to the corners, or, when the corners cannot be fixed, then, “ to the watercourse,” “ or other external boundary; ” and it is provided “ that all navigable rivers within the territory to be disposed of by virtue of this act shall be deemed to SHIVELY v. BOWLBY. 33 Opinion of the Court. be and remain public highways; and that in all cases where the opposite banks of any stream not navigable shall belong to different persons, the stream and the bed thereof shall be common to both.” Acts of May 18,1796, c. 29, §§ 2, 9 ; 1 Stat. 464; May 10, 1800, c. 55, § 3; March 3, 1803, c. 27, § 17; March 26,1804, c. 35, § 6; February 11, 1805, c. 14; 2 Stat. 73, 235, 279, 313; Rev. Stat. §§ 2395, 2396, 2476. Those acts also provide that when, in the opinion of the President, “ a departure from the ordinary method of surveying land on any river, lake, bayou or watercourse, 'would promote the public interest,” the land may be surveyed and sold in tracts of two acres in width, fronting on any such water, and running back the depth of forty acres. Act of May 24, 1844, c. 141; 4 Stat. 34; Rev. Stat. § 2407. By the Ordinance of 1787 for the government of the Northwest Territory, “ the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said Territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy.” Charters and Constitutions, 432; Act of August 7, 1789, c. 8;*1 Stat. 50. And the acts relating to the Territories of Louisiana and Missouri contained similar provisions. Acts of March 3, 1811, c. 46, § 12; June 4, 1812, c. 95, § 15; 2 Stat. 666, 747. In the acts for the admission of the States of Louisiana and Mississippi into the Union, it was likewise declared that “ the river Mississippi, and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, shall be common highways, and forever free, as well to the inhabitants of the said State, as to other citizens of the United States.” Acts of February 20, 1811, c. 21, § 3; April 8, 1812, c. 50, § 1; 2 Stat. 642, 703; March 1, 1817, c. 23, § 4; 3 Stat. 349. In Withers v. Buckley, (1857,) 20 How. 84, this court, affirming the judgment of the highest court of Mississippi in 29 Mississippi, 21, held that this did not prevent the legislature of the State from improving by a canal the navigation of one of those navigable rivers, and thereby diverting without VOL. CLII—3 34 OCTOBER TERM, 1893. Opinion of the Court. compensation the flow of water by the plaintiff’s land; and Mr. Justice Daniel, in delivering judgment, said: “It cannot be imputed to Congress that they ever designed to forbid, or to withhold from the State of Mississippi, the power of improving the interior of that State, by means either of roads or canals, or by regulating the rivers within its territorial limits, although a plan of improvement to be adopted might embrace or affect the course or the flow of rivers situated within the interior of the State. Could such an intention be ascribed to Congress, the right to enforce it may be confidently denied. Clearly, Congress could exact of the new State the surrender of no attribute inherent in her character as a sovereign independent State, or indispensable to her equality with her sister States, necessarily implied and guaranteed by the very nature of the Federal compact. Obviously, and it may be said primarily, among the incidents of that equality is the right to make improvements in the rivers, watercourses and highways, situated within the State.” 20 How. 93. See also Willamette Bridge Co. v. Hatch, 125 U. S. 1, 9-12; Monongahela Co. v. United States, 148 U. S. 312, 3297333. In The Genesee Chief, (1851,) 12 How. 443, in which this court, overruling its earlier decisions, held that the admiralty and maritime jurisdiction of the courts of the United States extended to all public navigable waters, although above the flow of the tide from the sea, Chief Justice Taney, taking the same line of argument as Chief Justice Tilghman in Carson v. Blazer, above cited, said that in England, where there were no navigable streams beyond the ebb and flow of the tide, the description of the admiralty jurisdiction as confined to tide waters was a reasonable and convenient one, and was equivalent to saying that it was confined to public navigable waters; but that, when the same description was used in this country, “ the description of a public navigable river was substituted in the place of the thing intended to be described; and, under the natural influence of precedents and established forms, a definition originally correct was adhered to and acted on, after it had ceased, from a change in circum- SHIVELY v. BOWLBY. 35 Opinion of the Court. stances, to be the true description of public waters.” 12 How. 454, 455. In Jones v. Soulard, (I860,) 24 How. 41, the decision was that a title acquired under the act of June 13, 1812, c. 99, (2 Stat. 748,) to land in St. Louis, bounded by the Mississippi River, included an island west of the middle of the river, then only a sand bar, covered at ordinary high water and surrounded on all sides by navigable water, but which, after the admission of Missouri into the Union as a State, became, by the gradual filling up of the island and the intervening channel, connected with the shore as fast land. Mr. Justice Catron, indeed, in delivering the opinion, spoke of the rule of the common law, that “ all grants of land bounded by fresh water rivers, where the expressions designating the water line are general, confer the proprietorship on the grantee to the middle thread of the stream and entitle him to the accretions,” as a general and well settled rule, and applicable to the Mississippi River. 24 How. 65. But, as stated in that opinion, the charter of the city of St. Louis extended to the eastern boundary of the State of Missouri in the middle of the Mississippi River. By the law of Missouri, as theretofore declared by its Supreme Court, the title of lands bounded by the Mississippi River extended to low water mark and included accretions. O'Fallon v. Price, 4 Missouri, 343; Shelton v. Maupin, 16 Missouri, 124; Smith v. St. Louis Schools, 30 Missouri, 290. And the only question in Jones v. Soulard was of the title, not in the bed or shore of the river, but only in accretions which had become part of the fast land. The rule, everywhere admitted, that. where the land encroaches upon the water by gradual and imperceptible degrees, the accretion or alluvion belongs to the owner of the land, is equally applicable to lands bounding on tide waters or on fresh waters, and to the King or the State as to private persons; and is independent of the law governing the title in the soil covered by the water. Lord Hale, in Hargrave’s Law Tracts, 5, 14, 28; Rex v. Yarborough, in the King’s Bench, 3 B. & C. 91, and 4 D. & R. 790, and in the 36 OCTOBER TERM, 1893. Opinion of the Court. House of Lords, 1 Dow & Clark, 178, 2 Bligh N. R. 147, and 5 Bing. 163; Doe v. East India Co., 10 Moore P. C. 140; Foster v. Wright, 4 C. P. D. 438; Handly v. Anthony, 5 Wheat. 374, 380; Jefferis v. East Omaha Co., -134 U. 8. 178, 189-193; Nebraska v. Iowa, 143 U. S. 359; Minto v. Delaney, 7 Oregon, 337. Again, in St. Clair n. Lovingston, (1874,) 23 Wall. 46, the right of a riparian proprietor in St. Louis, which was upheld by this court, affirming the judgment of the Supreme Court of Illinois in 64 Illinois, 56, and which Mr. Justice Swayne, in delivering the opinion, spoke of as resting in the law of nature, was the right to alluvion or increase of the upland by gradual and imperceptible degrees. And, as if to prevent any possible inference that the decision might affect the title in the soil under the water, the learned justice, after quoting the opinion in Jones v. Soulard, above cited, expressly reserved the expression of any opinion upon the question whether the limit of the land was low water or the middle thread of the river; and repeated the propositions established by the earlier decisions of this court, already referred to: “ By the American Revolution, the people of each State, in their sovereign character, acquired the absolute right to all their navigable waters and the soil under them. The shores of navigable waters and the soil under them were not granted by the Constitution to the United States, but were reserved to the States respectively. And new States have the same rights of sovereignty and jurisdiction over this subject as the original ones.” 23 Wall. 64, 68. Some passages in the opinions in Dutton v. Strong, (1861,) 1 Black, 23; Railroad Co. v. Schurmeir, (1868,) 7 Wall. 272; and Yates v. Milwaukee, (1870,) 10 Wall. 497, were relied on by the learned counsel for the plaintiff in error, as showing that the owner of land adjoining any navigable water, whether within or above the ebb and flow of the tide, has, independently of local law, a right of property in the soil below high water mark, and the right to build out wharves so far, at least, as to reach water really navigable. But the remarks of Mr, Justice Clifford in the first of those SHIVELY v. BOWLBY. 37 Opinion of the Court. cases, upon which his own remarks in the second case and those of Mr. Justice Miller in the third case were based, distinctly recognized the diversity of laws and usages in the different States upon this subject; and went no further than to say that wharves, piers and landing places, “ where they conform to the regulations of the State ” and do not extend below low water mark, have never been held to be nuisances, unless they obstruct the paramount right of navigation; that the right of the riparian proprietor to erect such structures in the navigable waters of the Atlantic States has been claimed, exercised and sanctioned from the first settlement of the country to the present time; that “different States adopted different regulations upon the subject, and in some, the right of the riparian proprietor rests upon immemorial local usage; ” and that “ no reason is perceived why the same general principle should not be applicable to the lakes,” so far as to permit the owner of the adjacent land to build out as far as where the water first becomes deep enough to be navigable. 1 Black, 31, 32. And none of the three cases called for the laying down or defining of any general rule, independent of local law or usage, or of the particular facts before the court. In Dutton v. Strong, the defendants, being the owners and occupants of a pier extending into Lake Michigan at Racine in the State of Wisconsin, were sued for cutting the hawser by which the plaintiffs had fastened their vessel to the pier during a storm, in consequence of which she was driven, by the force of the wind and waves, against another pier, and injured. And, as stated in the opinion, the pier appeared to be the private property of the defendants, constructed for their own use; there was no evidence that it constituted any obstruction whatever to the public right of navigation; the plaintiffs’ vessel was made fast to it by her master without any authority from the defendants, either express or implied; and, under the increasing strain of the hawser by the storm, the piles of the pier began to give way before the hawser was cut. The only point adjudged was that, the plaintiffs’ vessel having been wrongfully attached to the pier, the defendants, after she had been requested and had refused to leave, had 38 OCTOBER TERM, 1893. Opinion of the Court. the right to cut her loose, if necessary to preserve the pier from destruction or injury. 1 Black, 33, 34. There can be no doubt of the correctness of that decision; for, even if the pier had been unlawfully erected by the defendants as against the State, the plaintiffs had no right to pull it down or injure it, and upon the facts of the case were mere trespassers upon the defendants’ possession. Linthicum v. Ray, 9 Wall. 241; Wetmore v. Brooklyn Gaslight Co., 42 N. Y. 384; Harrington v. Edwards, 17 Wisconsin, 604; Johnson v. Barret, Aleyn, 10, 11. In Railroad Co. v. Schurmeir, the plaintiff claimed title to lots in a block in the city of St. Paul and State of Minnesota under a patent from the United States of a fractional section, bounded on one side by the Mississippi River. At the place in question there was a small island, lying along the shore of the river, about four feet lower than the mainland, and separated from it by a channel or slough twenty-eight feet wide, in which at very low water there was no current, and very little water, and that standing in pools; at a medium stage of the water the island was not covered, and there was a current or flow through the channel or slough; and at very high water the island was submerged. In the original government survey, the meander lines were run along the mainland of the shore, the quantity of land was estimated accordingly, and the island and intervening space were not shown or mentioned. That island and space were afterwards filled up by the city as a landing place, and were claimed by the railroad company under a subsequent survey and grant from the United States. The island, therefore, was connected with the mainland by a space substantially uncovered at low water; and the improvements complained of did not extend beyond high water mark of the island. The question in controversy was whether the plaintiff’s patent was limited by the main shore, or extended to the outside of the island. The Supreme Court of Minnesota held that, by the law of Minnesota, land bounded by a navigable river extended to low water mark, at least, if not to the thread of the river; and that the plaintiff’s title therefore extended to the water’s edge at low SHIVELY v. BOWLBY. 39 Opinion of the Court. water mark and included the island, and gave judgment for the plaintiff. 10 Minnesota, 82. This court affirmed the judgment, saying: “Express decision of the Supreme Court of the State was, that the river, in this case, and not the meander line, is the west boundary of the lot, and in that conclusion of the state court wTe entirely concur. Meander lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of land in the fraction subject to sale, and which is to be paid for by the purchaser. In preparing the official plat from the field notes, the meander line is represented as the border line of the stream, and shows, to a demonstration, that the watercourse, and not the meander line as actually run on the land, is the boundary.” 7 Wall. 286, 287. The court also expressed an unhesitating opinion that “ Congress, in making a distinction between streams navigable and those not navigable, intended to provide that the common law rules of riparian ownership should apply to lands bordering on tho latter, but that the title to lands bordering on navigable streams should stop at the stream, and that all such streams should be deemed to be and remain public highways.” And the court treated it as too plain for discussion, that the island, separated from the mainland only by a depression in which at low water there was no continuous flow or line of water, was included in the first survey, and therefore not affected by the subsequent survey. 7 Wall. 288, 289. In Yates v. Milwaukee^ the material facts appear by the report to have been as follows: The owner of a lot fronting on a river in the city of Milwaukee and State of Wisconsin had built, upon land covered by water of no use for the purpose of navigation, a wharf extending to the navigable channel of the river. There was no evidence that the wharf was an obstruction to navigation, or was in any sense a nuisance. The city council afterwards, under a statute of the State, enacted before the wharf was built, authorizing the city council to establish dock and wharf lines upon the banks of the 40 OCTOBER TERM, 1893. Opinion of the Court. river, to restrain and prevent encroachments upon and obstructions to the river, and to cause the river to be dredged, passed an ordinance declaring this wharf to be an obstruction to navigation and a nuisance, and ordering it to be abated. The point adjudged was that the mere declaration of the city council that the wharf already built and owned by the plaintiff was a nuisance did not make it such, or subject it to be removed by authority of the city. It was recognized in the opinion that by the law of Wisconsin, established by the decisions of its Supreme Court, the title of the owner of land bounded by a navigable river extended to the centre of the stream, subject, of course, to the public right of navigation. Jones v. Pettibone, 2 Wisconsin, ’308; Walker v. Shepardson, 2 Wisconsin, 384, and 4 Wisconsin, 486; Mariner v. Schulte, 13 Wisconsin, 692; Arnold v. Elmore, 16 Wisconsin, 536. See also Olson v. Merrill, 42 Wisconsin, 203; Norcross v. Griffiths, 65 Wisconsin, 599. And the only decision of that court, which this court considered itself not bound to follow, was Yates n. Judd, 18 Wisconsin, 118, upon the question of fact whether certain evidence was sufficient to prove a dedication to the public. 10 Wall. 504-506. VII. The later judgments of this court clearly establish that the title and rights of riparian or littoral proprietors in the soil below high water mark of navigable waters are governed by the local laws of the several States, subject, of course, to the rights granted to the United States by the Constitution. In Weber v. Harbor Commissioners, above cited, Mr. Justice Field, in delivering judgment, while recognizing the correctness of the doctrine “that a riparian proprietor, whose land is bounded by a navigable stream, has the right of access to the navigable part of the stream in front of his land, and to construct a wharf or pier projecting into the stream, for his own use, or the use of others, subject to such general rules and regulations as the legislature may prescribe for the protection of the public,” and admitting that in several of the States, by general legislation or immemorial usage, the proprietor of land bounded by the shore of the sea, or of an arm of the sea, has a right to wharf out to the point where the waters are SHIVELY v. BOWLBY. 41 Opinion of the Court. navigable, said: “ In the absence of such legislation or usage, however, the common law rule would govern the rights of the proprietor, at least in those States where the common law obtains. By that law, the title to the shore of the sea, and of the arms of the sea, and in the soils under tide waters is, in England, in the King, and, in this country, in the State. Any erection thereon without license is, therefore, deemed an encroachment upon the property of the sovereign, or, as it is termed in the language of the law, a purpresture, which he may remove at pleasure, whether it tends to obstruct navigation or otherwise.” 18 Wall. 64, 65. In Atlee v. Packet Co., (1874,) 21 Wall. 389, which arose in Iowa in 1871, Mr. Justice Miller, in delivering judgment, after referring to Dutton v. Strong, Railroad Co. v. Schurmeir, and Yates v. Milwaukee, above cited, disclaimed laying down any invariable rule as to the extent to which wharves and landing places might be built out into navigable waters by private individuals or municipal corporations; and recognized that a State might, by its legislation, or by authority expressly or impliedly delegated to municipal governments, control the construction, erection and use of such wharves or landings, so as to secure their safety and usefulness, and to prevent their being obstructions to navigation. 21 Wall. 392, 393. And it was adjudged, following in this respect the opinion of the Circuit Court in 2 Dillon, 479, that a riparian proprietor had no right, without statutory authority, to build out piers into the Mississippi River as necessary parts of a boom to receive and retain logs until needed for sawing at his mill by the water side. In Railway Co. v. Renwick, (1880,) 102 U. S. 180, affirming the judgment of the Supreme Court of Iowa in 49 Iowa, 664, it was by virtue of an express statute passed by the legislature of Iowa in 1874, that the owner of a similar pier and boom recovered compensation for the obstruction of access to it from the river by the construction of a railroad in front of it. In Barney v. Keokuk, (1876,) 94 U. S. 324, the owner, under a grant from the United States, of two lots of land in 42 OCTOBER TERM, 1893. Opinion of the Court. the city of Keokuk and State of Iowa, bounded by the Mis^ sissippi River, brought an action of ejectment against the city and several railroad companies and a steamboat company to recover possession of lands below high water mark in front of his lots, which the city, pursuant to statutes of the State, had filled up as a wharf and levee, and had permitted to be occupied by the railroads and landing places of those companies. The plaintiff’s counsel relied on Dutton v. Strong., Railroad Co. v. Schurmeir and Yates v. Milwaukee, above cited. 94 U. S. 329, 331. But this court, affirming the judgment of the Circuit Court of the United States, held that the action could not be maintained; and Mr. Justice Bradley, in delivering judgment, summed up the law upon the subject with characteristic power and precision, saying: “ It appears to be the settled law of that State that the title of the riparian proprietors on the banks of the Mississippi extends only to ordinary high water mark, and that the shore between high and low water mark, as well as the bed of the river, belongs to the State. This is also the common law with regard to navigable waters; although, in England, no waters are deemed navigable except those in which the tide ebbs and flows. In this country, as a general thing, all waters are deemed navigable which are really so; and especially is it true with regard to the Mississippi and its principal branches. The question as to the extent of the riparian title was elaborately discussed in the case of McManus v. Carmichael, 3 Iowa, 1. The above conclusion was reached, and has always been adhered to in that State. Haight v. Keokuk, 4 Iowa, 199; Tomlin v. Dubugue c&c. Railroad, 32 Iowa, 106.” “It is generally conceded that the riparian title attaches to subsequent accretions to the land, effected by the gradual and imperceptible operation of natural causes. But whether it attaches to land reclaimed by artificial means from the bed of the river, or to sudden accretions produced by unusual floods, is a question which each State decides for itself. By the common law, as before remarked, such additions to the land on navigable waters belong to the Crown; but, as the only waters recognized in SHIVELY v. BOWLBY. 43 Opinion of the Court. England as navigable were tide waters, the rule was often expressed as applicable to tide waters only, although the reason of the rule would equally apply to navigable waters above the flow of the tide; that reason being that the public authorities ought to have entire control of the great passageways of commerce and navigation, to be exercised for the public advantage and convenience. The confusion of navigable with tide water, found in the monuments of the common law, long prevailed in this country, notwithstanding the broad differences existing between the extent and topography of the British island and that of the American continent. It had the influence for two generations of excluding the admiralty jurisdiction from our great rivers and inland seas; and under the like influence it laid the foundation in many States of doctrines, with regard to the ownership of the soil in navigable waters above tide water, at variance with sound principles of public policy. Whether, as rules of property, it would now be safe to change these doctrines where they have been applied, as before remarked, is for the several States themselves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections. In our view of the subject, the correct principles were laid down in Martin v. Waddell, 16 Pet. 367; Pollard v. Hagan, 3 How. 212; and Goodtitle v. Kibbe, 9 How. 471. These cases related to tide water, it is true; but they enunciate principles which are equally applicable to all navigable waters. And since this court, in the case of The Genesee Chief, 12 How. 443, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly belongs to the States by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond 44 OCTOBER TERM, 1893. Opinion of the Court. the limits of high water. The cases in which this court has seemed to hold a contrary view depended, as most cases must depend, on the local laws of the States in which the lands were situated. In Iowa, as before stated, the more correct rule seems to have been adopted after a most elaborate investigation of the subject.” 94 U. S. 336-338. In Si. Louis v. Myers, (1885,) 113 IT. S. 566, the court, speaking by Chief Justice Waite, held that the act of Congress for the admission into the Union of the State of Missouri, bounded by the Mississippi River, which declared that the river should be “ a common highway and forever free,” left the rights of riparian owners to be settled according to the principles of state law; and that no Federal question was involved ip a judgment of the Supreme Court of the State of Missouri as to the right of a riparian proprietor in the city of St. Louis to maintain an action against the city for extending one of its streets into the river so as to divert the natural course of the water and thereby to injure his property. In Packer n. Bird, (1891,) 137 U. S. 661, the general rules governing this class of cases were clearly and succinctly laid down by the court, speaking by Mr. Justice Field, as follows: “ The courts of the United States will construe the grants of the general government without reference to the rules of construction adopted by the States for their grants’; but whatever incidents or rights attach to the ownership of property conveyed by the government will be determined by the States, subject to the condition that their rules do not impair the efficacy of the grants, or the use and enjoyment of the property by the grantee. As an incident of such ownership, the right of the riparian owner, where the waters are above the influence of the tide, will be limited according to the law of the State, either to low or high water mark, or will extend to the middle of the stream.” 137 U. S. 669, 670. And it was accordingly held, affirming the judgment of the Supreme Court of California in 71 California, 134, and referring to the opinion in Barney v. Keokuk, above cited, as specially applicable to the case, that a person holding land under a patent from the United States, confirming a Mexican grant bounded by the SHIVELY v. BOWLBY. 45 Opinion of the Court. Sacramento River, which was navigable in fact, took no title below the high water mark, either under the acts of Congress or by the local law. In St. Louis v. Rutz, (1891,) 138 U. S. 226, the court, speaking by Mr. Justice Blatchford, and referring to Barney v. Keokuk, St. Louis n. Myers and Packer v. Bird, above cited, said: “ The question as to whether the fee of the plaintiff, as a riparian proprietor on the Mississippi River, extends to the middle thread of the stream, or only to the water’s edge, is a question in regard to a rule of property, which is governed by the local law of Illinois.” And it was because “ the Supreme Court of Illinois has established and steadily maintained, as a rule of property, that the fee of the riparian owner of lands in Illinois bordering on the Mississippi River extends to the middle line of the main channel of that river,” that it was decided that a deed of land in Illinois, bounded by the Mississippi River, passed the title in fee in the bed of the river to the middle line of the main channel, and to all islands found in the bed of the river east of the middle of that channel; and, “ that being so, it is impossible for the owner of an island which is situated on the west side of the middle of the river, and in the State of Missouri, to extend his ownership, by mere accretion, to land situated in the State of Illinois, the title in fee to which is vested by the law of Illinois in the riparian owner of the land in that State.” 138 U. S. 242, 250. In the recent case of Hardin v. Jorda/n, (1891,) 140 U. S. 371, in which there was a difference of opinion upon the question whether a survey and patent of the United States, bounded by a lake which was not navigable, in the State of Illinois, was limited by the margin, or extended to the centre of the lake, all the justices agreed that the question must be determined by the law of Illinois. Mr. Justice Bradley, speaking for the majority of the court, and referring to many cases already cited above, said: “ With regard to grants of the government for lands bordering on tide water, it has been distinctly settled that they only extend to high water mark, and that the title to the shore and lands under water in front of lands so granted enures to the State within which they are 46 OCTOBER TERM, 1893. Opinion of the Court. situated, if a State has been organized and established there. Such title to the shore and lands under water is regarded as incidental to the sovereignty of the State — a portion of the royalties belonging thereto, and held in trust for the public purposes of navigation and fishery — and cannot Jie retained or granted out to individuals by the United States. Such title being in the State, the lands are subject to state regulation and control, under the condition, however, of not interfering with the regulations which may be made by Congress with regard to public navigation and commerce. The State may even dispose of the usufruct of such lands, as is frequently done by leasing oyster beds in them, and granting fisheries in particular localities; also, by the reclamation of submerged flats, and the erection of wharves and piers and other adventitious aids of commerce. Sometimes large areas so reclaimed are occupied by cities, and are put to other public or private uses, state control and ownership therein being supreme, subject only to the paramount authority of Congress in making regulations of commerce, and in subjecting the lands to the necessities and uses of commerce. This right of the States to regulate and control the shores of tide waters and the land under them is the same as that which is exercised by the Crown in England. In this country the same rule has been extended to our great navigable lakes, which are treated as inland seas; and also, in some of the States, to navigable rivers, as the Mississippi, the Missouri, the Ohio, and, in Pennsylvania, to all the .permanent rivers of the State; but it depends on the law of each State to what waters and to what extent this prerogative of the State over the lands under water shall be exercised.” 140 U. S. 381, 382. And Mr. Justice Brewer, in beginning the dissenting opinion, said: “ Beyond all dispute, the settled law of this court, established by repeated decisions, is that th'e question -how far the title of a riparian owner extends is one of local law. For a determination of that question the statutes of the State and the decisions of its highest court furnished the best and the final authority.” 140 U. S. 402. In the yet more recent case of Illinois Central Railroad v. SHIVELY v. BOWLBY. 47 Opinion of the Court. Illinois, (1892,) which, also arose in Illinois, it was recognized as the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters, or navigable lakes, within the limits of the several States, belong to the respective States within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in such waters, and subject to the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce. 146 IL S. 387, 435-437, 465, 474. VIII. Notwithstanding the dicta contained in some of the opinions of this court, already quoted, to the effect that Congress has no power to grant any land below high water mark of navigable waters in a Territory of the United States, it is evident that this is not strictly true. Chief Justice Taney, in delivering an opinion already cited, after the subject had been much considered in the cases from Alabama, said: “Undoubtedly Congress might have granted this land to the patentee, or confirmed his Spanish grant, before Alabama became a State.” Goodtitle v. Kibbe, 9 How. 471, 478. In the cases from California, already referred to, the question whether a Mexican grant, confirmed by the United States, did or did not include any lands below high water mark, was treated as depending on the terms of the decree of confirmation by a court of the United States under authority of Congress. By the application of that test, no such lands were held to be included in United States v. Pacheco, 2 Wall. 587, and some such lands were held to be included in Knight v. United States Land Association, 142 U. S. 161. And in Packer v. Bird, 137 U. S. 661, 672, Mr. Justice Field, speaking for the court, after referring to the rule, as stated in Railroad Co.'N. Schurmeir, 1 Wall. 272, 288, above quoted, that Congress, by the provisions of the land laws, intended that the title to lands bordering on navigable streams should stop at the stream, said: “ The same rule applies when the survey is made and the patent is issued upon a confirmation of a previously existing right or equity of the 48 OCTOBER TERM, 1893. Opinion of the Court. patentee to the lands, which in the absence of such right or equity would belong absolutely to the United States, unless the claim confirmed in terms embraces the land under the waters of the stream.” By the Constitution, as is now well settled, the United States, having rightfully acquired the Territories, and being the only government which can impose laws upon them, have the entire dominion and sovereignty, national and municipal, Federal and state, over all the Territories, so long as they remain in a territorial condition. American Ins. Co. v. Canter, 1 Pet. 511, 542; Benner v. Porter, 9 How. 235, 242; Cross n. Harrison, 16 How. 164, 193; National Bank v. Yankton County, 101 U. S. 129, 133; Murphy v. Ramsey, 114 U. S. 15, 44; Mormon Church v. United States, 136 U. S. 1, 42, 43; McAllister v. United States, 141 U. S. 174, 181. We cannot doubt, therefore, that Congress has the power to make grants of lands below high water mark of navigable waters in any Territory of the United States, whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several States, or to carry out other public purposes appropriate to the objects for which the United States hold the Territory. IX. But Congress has never undertaken by general laws to dispose of such lands. And the reasons are not far to seek. As has been seen, by the law of England, the title in fee, or jus privatum, of the King or his grantee was, in the phrase of Lord Hale, “charged with and subject to jus publicum which belongs to the King’s subjects,” or, as he elsewhere puts it, “is clothed and superinduced with a jus publicum, wherein both natives and foreigners in peace with this kingdom are interested by reason of common commerce, trade and intercourse.” Hargrave’s Law Tracts, 36, 84. In the words of Chief Justice Taney, “the country” discovered and settled by Englishmen “ was held by the King in his public and regal character as the representative of the nation, and in trust for SHIVELY v. BOWLBY. 49 Opinion of the Court. them; ” and the title and the dominion of the tide waters and of the soil under them, in each colony, passed by the royal charter to the grantees as “ a trust for the common use of the new community about to be established;” and, upon the American Revolution, vested absolutely in the people of each State “ for their own common use, subject only to the rights since surrendered by the Constitution to the general government.” Martin v. Waddell, 16 Pet. 367, 409-411. As observed by Mr. Justice Curtis, “This soil is held by the State, not only subject to, but in some sense in trust for, the enjoyment of certain public rights.” Smith v. Maryland, 18 How. 71, 74. The title to the shore and lands under tide water, said Mr. Justice Bradley, “is regarded as incidental to the sovereignty of the State — a portion of the royalties belonging thereto, and held in trust for the public purposes of navigation and fishery.” Hardin v. Jordan, 140 U. S. 371, 381. And the Territories acquired by Congress, whether by deed of cession from the original States, or by treaty with a foreign country, are held with the object, as soon as their population and condition justify it, of being admitted into the Union as States, upon an equal footing with the original States in all respects; and the title and dominion of the tide waters and the lands under them are held by the United States for the benefit of the whole people, and, as this court has often said, in cases above cited, “ in trust for the future States.” Pollard v. Hagan, 3 How. 212, 221, 222; Weber v. Harbor Commissioners, 18 Wall. 57, 65; Knight v. United States Land Association, 142 U. S. 161, 183. The Congress of the United States, in disposing of the public lands, has constantly acted upon the theory that those lands, whether in the interior, or on the coast, above high water mark, may be taken up by actual occupants, in order to encourage the settlement of the country; but that the navigable waters and the soils under them, whether within or above the ebb and flow of the tide, shall be and remain public highways; and, being chiefly valuable for the public purposes of commerce, navigation and fishery, and for the improvements necessary to secure and promote those purposes, VOL. CLII—4 50 OCTOBER TERM, 1893. Opinion of the Court. shall not be granted away during the period of territorial government; but, unless in case of some international duty or public exigency, shall be held by the United States in trust for the future States, and shall vest in the several States, when organized and admitted into the Union, with all the powers and prerogatives appertaining to the older States in regard to such waters and soils within their respective jurisdictions ; in short, shall not be disposed of piecemeal to individuals as private property, but -shall be held as a whole for the purpose of being ultimately administered and dealt with for the public benefit by the State, after it shall have become a completely organized community. X. The title of the United States to Oregon was founded upon original discovery and actual settlement by citizens of the United States, authorized or approved by the government of the United States; as well as upon the cession of the Louisiana Territory by France in the treaty of 1803, and the renunciation of the claims of Spain in the treaty of 1819. American State Papers, 6 Foreign Relations, 666; Barrow’s History of Oregon, c. 22; 8 Stat. 202, 256. While the right to Oregon was in contest between the United States and Great Britain, the citizens of the one and the subjects of the other were permitted to occupy it under the Conventions of 1818 and 1827. 8 Stat. 249, 360. Its boundary on the north was defined by the treaty with Great Britain of June 15, 1846. 9 Stat. 869. So far as the title of the United States was derived from France or Spain, it stood as in other territories acquired by treaty. The independent title based on discovery and settlement was equally absolute. Johnson v. McIntosh, 8 Wheat. 543, 595; Martin v. Waddell, 16 Pet. 367, 409; Jones v. United States, 137 U. S. 202, 212. By the act of 1848, establishing the territorial government of Oregon, “all laws heretofore passed in said Territory, making grants of land, or otherwise affecting or incumbering the title to lands,” were declared to be void; and the laws of the United States were “extended over and declared to be in force in said Territory, so far as the same, or any provision thereof, may be applicable.” Act of August 14, 1848, c, 177, SHIVELY v. BOWLBY. 51 Opinion of the Court. § 14; 9 Stat. 329. The land laws adopted by the provisional government of Oregon, established by the people while the sovereignty was in dispute between the United States and Great Britain, regulated the occupation only. The settlers had no title in the soil. The United States, on assuming undisputed dominion over the Territory, owned all the lands therein; and Congress had the right to confine its bounties to settlers within just such limits as it chose. The provisions of the general land laws of the United States were not applicable to the Oregon Territory. And before 1850 there was no statute under which any one could acquire a legal title from the United States to lands in Oregon. Lownsdale v. Parrish^ 21 How. 290, 293; Stark n. Starrs, 6 Wall. 402; Da/ven-port v. Lamb, 13 Wall. 418, 429, 430; Lamb v. Davenport, 18 Wall. 307, 314; Stark v. Starr, 94 U. S. 477, 486; Barney v. Dolph, 97 U. S. 652, 654; Hall v. Russell, 101 U. S. 503, 507, 508; Missionary Society v. Dalles, 107 U. S. 336, 344. The first act of Congress which granted to settlers titles in such lands was the Oregon Donation Act of September 27, 1850, c. 76. That act required the lands in Oregon to be surveyed as in the Northwest Territory; and it made grants or donations of land, measured by sections, half sections and quarter sections, to actual settlers and occupants. It contains nothing indicating any intention on the part of Congress to depart from its settled policy of not granting to individuals lands under tide waters or navigable rivers. 9 Stat. 496; Rev. Stat. §§ 2395, 2396, 2409. It is evident, therefore, that a donation claim under this act, bounded by the Columbia River, where the tide ebbs and flows, did not, of its own force, have the effect of passing any title in lands below high water mark. Nor is any such effect attributed to it by the law of the State of Oregon. The southern part of the Territory of Oregon was admitted into the Union as the State of Oregon, “ on an equal footing with the other States in all respects whatever,” by the act of February 14, 1859, c. 33; and the act of admission provided that “ the said State of Oregon shall have concurrent jurisdiction on the Columbia and all other rivers and waters bordering 52 OCTOBER TERM, 1893. Opinion of the Court. on the said State of Oregon, so far as the same shall form a common boundary to said State and any other State or States now or hereafter to be formed or bounded by the same ; and said rivers and waters, and all the navigable waters of said State, shall be common highways and forever free, as well to the inhabitants of said State as to all other citizens of the United States.” 11 Stat. 383. The settlers of Oregon, like the colonists of the Atlantic States, coming from a country in which the common law prevailed to one that had no organized government, took with them, as their birthright, the principles of the common law, so far as suited to their condition in their new home. The jurisprudence of Oregon, therefore, is based on the common law. Van Ness v. Pacard, 2 Pet. 137,144 ; Norris v. Harris, 15 California, 226, 252 ; Cressey v. Tatom, 9 Oregon, 541 ; Lamb v. Starr, Deady, 350, 358. By the law of the State of Oregon, as declared and established by the decisions of its Supreme Court, the owner of upland bounding on navigable water has no title in the adjoining lands below high water mark, and no right to build wharves thereon, except as expressly permitted by statutes of the State ; but the State has the title in those lands, and, unless they have been so built upon with its permission, the right to sell and convey them to any one, free of any right in the proprietor of the upland, and subject only to the paramount right of navigation inherent in the public. Hinman v. Warren, 6 Oregon, 408 ; Parker v. Taylor, 7 Oregon, 435 ; Parker v. Rogers, 8 Oregon, 183; Shively v. Parker, 9 Oregon, 500; McCanna. Oregon Railway, 13 Oregon, 455 ; Bowlby v. Shively, 22 Oregon, 410. See also Shively v. Welch, 10 Sawyer, 136,140,141. In the case at bar, the lands in controversy are below high water mark of the Columbia Biver where the tide ebbs and flows ; and the plaintiff in error claims them by a deed from John M. Shively, who, while Oregon was a Territory, obtained from the United States a donation claim, bounded by the Columbia River, at the place in question. The defendants in error claim title to the lands in controversy by deeds executed in behalf of the State of Oregon, by SHIVELY v. BOWLBY. 53 Opinion of the Court. a board of commissioners, pursuant to a statute of the State of 1872, as amended by a statute of 1874, which recited that the annual encroachments of the sea upon the land, washing away the shores and shoaling harbors, could be prevented only at great expense by occupying and placing improvements upon the tide and overflowed lands belonging to the State, and that it was desirable to offer facilities and encouragement to the owners of the soil abutting on such harbors to make such improvements ; and therefore enacted that the owner of any land abutting or fronting upon, or bounded by the shore of any tide waters, should have the right to purchase the lands belonging to the State in front thereof; and that, if he should not do so within three years from the date of the act, they should be open to purchase by any other person who was a citizen and resident of Oregon, after giving notice and opportunity to the owner of the adjoining upland to purchase; and made provisions for securing to persons who had actually made improvements upon tide lands a priority of right so to purchase them. Neither the plaintiff in error nor his grantor appears to have ever built a wharf or made any other improvement upon the lands in controversy, or to have applied to the State to purchase them. But the defendants in error, after their purchase from the State, built and maintained a wharf upon the part of these lands nearest the channel, which extended several hundred feet into the Columbia River, and at which ocean and river craft were wont to receive and discharge freight. The theory and effect of these statutes wTere stated by the Supreme Court of the State, in this case, as follows: “Upon the admission of the State into the Union, the tide lands became the property of the State, and subject to its jurisdiction and disposal. In pursuance of this power, the State provided for the sale and disposal of its tide lands by the act of 1872 and the amendments of 1874 and 1876. Laws 1872, p. 129 ; Laws 1874, P- 77; Laws 1876, p. 70. By virtue of these acts, the owner or owners of any land abutting or fronting upon or bounded by the shore of the Pacific Ocean, or of any bay, harbor or inlet of the same, and rivers and thei> bays in which the tide ebbs 54 OCTOBER TERM, 1893. Opinion of the Court. and flows, within this State, were given the right to purchase all the tide lands belonging to the State, in front of the lands so owned, within a certain time and upon conditions prescribed; and providing further that in case such owner or owners did not apply for the purchase of such tide lands, or, having applied, failed to prosecute the same as provided by law, then that such tide lands shall be open to purchase by any other person who is a resident and citizen of the State of Oregon; but in consideration of the fact that prior to 1872, as it would seem, these lands had been dealt with as private property, and sometimes improved by expensive structures, the acts further provided, in such Cases, that where the bank owners had actually sold the tide lands, then the purchaser of the tide land from the bank owner, or a previous bank owner, should have the right to purchase from the State. These statutes are based on the idea that the State is the owner of the tide lands, and has the right to dispose of them; that there are no rights of upland ownership to interfere with this power to dispose of them and convey private interests therein, except such as the State saw fit to give the adjacent owners, and to acknowledge in them and their grantees when they had dealt with such tide lands as private property, subject, of course, to the paramount right of navigation secured to the public. These statutes have been largely acted upon, and many titles acquired under them to tide lands. In the various questions relating to tide lands which have come before the judiciary, the validity of these statutes has been recognized and taken for granted, though not directly passed upon.” 22 Oregon, 415,416. The substance and scope of the earlier statute of Oregon of October 14, 1862, (General Laws of 1862, p. 96; Hill’s Code of Oregon, §§ 4227, 4228;) which is copied in the margin,1 1 An Act to authorize the owners of land lying upon a navigable stream or other like water to build wharves into such stream or other water, beyond the line of low water mark. Be it enacted by the Legislative Assembly of the State of Oregon, as follows : Sec. 1. The owner of any land in this State, lying upon any navigable stream or other like water, and within the corporate limits of any incorpo- SHIVELY v. BOWLBY. 55 Opinion of the Court. were stated by that court as follows: “ It is true, the legislature of this State had made provision by which the upland owner within the corporate limits of any incorporated town might build wharves, prior to the acts of 1872 and 1874, supra; but within the purview of our adjudications it would, as a matter of power, have been equally competent to have given this privilege to others. But this act is not a grant. It simply authorizes upland owners on navigable rivers within the corporate limits of any incorporated town to construct wharves in front of their land. It does not vest any right until exercised. It is a license, revocable at the pleasure of the legislature until acted upon or availed of. Shively did not avail himself of the license, nor is there any pretence to that effect. The plaintiffs have built a wharf upon and in front of their tide land. If the act is as applicable to tide lands as uplands on navigable waters, they have exercised the right.” 22 Oregon, 420, 421. Upon a review of its prior decisions, the court was of opinion that by the law of Oregon, in accordance with the law as formerly held in New York in Gould v. Hudson River Railroad, 6 N. Y. 522; with the law of New Jersey, as declared in Stevens v. Paterson <& Newark Railroad, 5 Vroom, (34 N. J. Law,) 532, and recognized in Hoboken n. Pennsylvania Railroad, 124 U. S. 656; and with the law of the State of rated town therein, is hereby authorized to construct a wharf or wharves upon the same, and extend such wharf or wharves into such stream or other like water, beyond low water mark, so far as maybe necessary and convenient for the use and accommodation of any ships or other boats or vessels that may or can navigate such stream or other like water. Sec. 2. The corporate authorities of the town, wherein such wharf or wharves is proposed to be constructed, shall have power to regulate the exercise of the privilege or franchise herein granted; and, upon the application of the person entitled to and desiring to construct such wharf or wharves, such corporate authorities shall by ordinance, or other like mode, prescribe the mode and extent to which the same may be exercised beyond the line of low water mark, so that such wharf or wharves shall not be constructed any farther into such stream or other water beyond such low water me than may be necessary and convenient for the purpose expressed in the rst section of this act, and so that the same will not unnecessarily inter-ere with the navigation of such stream or other like water. 56 OCTOBER TERM, 1893. Opinion of the Court. Washington, on the other side of the Columbia River, as declared in Eisenbach, v. Hatfield, 2 Wash. St. 236; and upon the principles affirmed in decisions of this court, above cited, and especially in Hardin v. Jorda/n, 140 U. S. 371, 382; the authority conferred by the statutes of Oregon upon upland owners on navigable rivers to construct wharves in front of their land did not vest any right until exercised, but was a mere license revocable at the pleasure of the legislature until acted upon; and that the State had the right to dispose of its tide lands free from any easement of the upland owner. The court thus stated its final conclusion : “ From all this it appears that when the State of Oregon was admitted into the Union, the tide lands became its property and subject to its jurisdiction and disposal; that in the absence of legislation or usage, the common-law rule would govern the rights of the upland proprietor, and by that law the title to them is in the State; that the State has the right to dispose of them in such manner as she might deem proper, as is frequently done in various ways, and whereby sometimes large areas are reclaimed and occupied by cities, and are put to public and private uses, state control and ownership therein being supreme, subject only to the paramount right of navigation and commerce. The whole question is for the State to determine for itself; it can say to what extent it will preserve its rights of ownership in them, or confer them on others. Our State has done that by the legislation already referred to; and our courts have declared its absolute property in and dominion over the tide lands, and its right to dispose of its title in such manner as it might deem best, unaffected by any i legal obligation to recognize the rights of either the riparian owners, or those who had occupied such tide lands,’ other than it chose to resign to them, subject only to the paramount right of navigation and the uses of commerce. From these considerations it results, if we are to be bound by the previous adjudications of this court, which have become a rule of property, and upon the faith of which important rights and titles have become vested, and large expenditures have been made and incurred, that the defendants have no rights or interests in the lands in question. SHIVELY v. BOWLBY. 57 Opinion of the Court. Upon this point there is no diversity of judgment among us. We all think that the law as adjudicated ought not to be disturbed, independent of other reasons and authorities suggested in its support.” 22 Oregon, 427. By the law of the State of Oregon, therefore, as enacted by its legislature and declared by its highest court, the title in the lands in controversy is in the defendants in error; and, upon the principles recognized and affirmed by a uniform series of recent decisions of this court, above referred to, the law of Oregon governs the case. <______ The conclusions from the considerations and authorities above stated may be summed up as follows: Lands under tide waters are incapable of cultivation or improvement in the manner of lands above high water mark. They are of great value to the public for the purposes of commerce, navigation and fishery. Their improvement by individuals, when permitted, is incidental or subordinate to the public use and right. Therefore the title and the control of them are vested in the sovereign for the benefit of the whole people. At common law, the title and the dominion in lands flowed by the tide were in the King for the benefit of the nation. Upon the settlement of the Colonies, like rights passed to the grantees in the royal charters, in trust for the communities to be established. Upon the American Revolution, these rights, charged with a like trust, were vested in the original States within their respective borders, subject to the rights surrendered by the Constitution to the United States. Upon the acquisition of a Territory by the United States, whether by cession from one of the States, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several States to be ultimately created out of the Territory. T^e new States admitted into the Union since the adoption of the Constitution have the same rights as the original States m the tide waters, and in the lands under them, within their respective jurisdictions. The title and rights of riparian or 58 OCTOBER TERM, 1893. Opinion of the Court. littoral proprietors in the soil below high water mark, therefore, are governed by the laws of the several States, subject to the rights granted to the United States by the .Constitution. The United States, while they hold the country as a Territory, having all the powers both of national and of municipal government, may grant, for appropriate purposes, titles or rights in the soil below high water mark of tide waters. But they have never done so by general laws ; and, unless in some case of international duty or public exigency, have acted upon the policy, as most in accordance with the interest of the people and with the object for which the Territories were acquired, of leaving the administration and disposition of the sovereign rights .in navigable waters, and in the soil under them, to the control of the States, respectively, when organized and admitted into the Union. Grants by Congress of portions of the public lands within a Territory to settlers thereon, though bordering on or bounded by navigable waters, convey, of their own force, no title or right below high water mark, and do not impair the title and dominion of the future State when created; but. leave the question of the use of the shores by the owners of uplands to the sovereign control of each State, subject only to the rights vested by the Constitution in the United States^ The donation land claim, bounded by the Columbia River, upon which the plaintiff in error relies, includes no title or right in the land below high water mark ; and the statutes of Oregon, under which the defendants in error hold, are a con-stitutional and legal exercise by the State of Oregon of its dominion over the lands under navigable waters. Judgment affirmed. PROSSER v. NORTHERN PACIFIC RAILROAD. 59 Statement of the Case. PROSSER v. NORTHERN PACIFIC RAILROAD. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF WASHINGTON. No. 887. Argued January 16,17,1893. —Decided March 5,1894. A railroad corporation, which has laid out, built and maintained its railroad for two miles along the shore of a harbor, below high water mark, claiming under its charter the right to do so and the ownership of adjacent lands under tide waters of the harbor, cannot maintain a bill in equity to restrain a board of commissioners from establishing, pursuant to statutes of the State, a general system of harbor lines in the harbor, and from filing a plan thereof. This was a bill in equity, filed December 29, 1891, and amended May 27, 1892, in the Circuit Court of the United States for the District of Washington, by the Northern Pacific Railroad Company, a corporation created and existing under the laws of the United States, for an injunction to prevent Prosser and four other persons, constituting the board of harbor line commissioners of the State of Washington, from establishing harbor lines and lines of waterways in front of the city and in the harbor of Tacoma, over the plaintiff’s wharves and lands ; and to prevent the Secretary of State of the State and the clerk of the city from receiving or filing a plat of such lines made by the commissioners, covering lands included in a strip two hundred feet wide on either side of the plaintiff’s railroad. On the day of the filing of the amended bill, a general demurrer was filed by the defendants, and overruled by the court; and, the defendants standing upon their demurrer and declining to answer further, a final decree was entered for the plaintiff, as prayed for in the bill ; and the défendants appealed to this court. By the act of Congress of July 2, 1864, c. 217, entitled “An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget’s Sound on the 60 OCTOBER TERM, 1893. Statement of the Case. Pacific Coast by the northern route,” the Northern Pacific Railroad Company was incorporated, and authorized to construct and maintain a railroad, “ beginning at a point on Lake Superior, in the State of Minnesota or Wisconsin, thence westerly by the most eligible railroad route as shall be determined by said company, within the territory of the United States, on a line north of the forty-fifth degree of latitude, to some point on Puget’s Sound;” and for the purpose of aiding in the construction of the railroad, and of a telegraph line, to the Pacific Coast, there was granted to the company “ the right of way through the public lands ” to the extent of two hundred feet in width on either side of the railroad, as well as every alternate section of the public lands on either side of the line; and it was authorized to take lands within the two hundred feet, “and also any lands or premises that may be necessary and proper for turnouts, standing places for cars, depots, station-houses, or any other structures required in the construction and working of said road; ” and it was provided that the railroad should “ be a post route, and a military road, subject to the use of the United States, for postal, military, naval and all other government service, and also subject to such regulations as Congress may impose, restricting the charges for such government transportation; ” that the acceptance of the terms, and conditions of the act should be signified by the company in writing to the President of the United States within two years after its passage; and that, “the better to accomplish the object of this act, namely, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the government at all times, but particularly in time of war, the use and benefits of the same for postal, military and other purposes,” Congress might, at any time, having due regard to the rights of the company, add to, alter, amend or repeal this act. 13 Stat. 365. The bill alleged that after the passage of the act, and before March 9, 1865, the company determined upon and selected the general line of its main road from Lake Superior to Puget PROSSER v. NORTHERN PACIFIC RAILROAD. 61 Statement of the Case. Sound; that on March 9, 1865, it duly signified to the President of the United States its acceptance of the act, and therewith presented and filed with the Secretary of the Interior a map showing the general route of its main line; that the general route so selected and* designated was by way of the Columbia River to Puget Sound and north of the fortyfifth degree of latitude, and was “the most eligible railroad route for the main line of said railroad and telegraph line from Lake Superior to Puget Sound, and was at the time aforesaid selected and determined upon as such; ” and that many years before November 11, 1889, and while the State of Washington was still a Territory, the plaintiff constructed and fully completed, and had since continuously maintained, its railroad from the city of Portland, in the State of Oregon, to the city of Tacoma, in the State of Washington. The bill alleged that the main line of the plaintiff’s railroad, as so constructed and maintained, extended to the eastern boundary of the Tacoma Mill Company’s property at a point upon Commencement Bay, an arm or indentation of Admiralty Inlet, near its junction with Puget Sound. The bill, with a map annexed to it, showed that the railroad was laid out for about two miles along the edge of the harbor and in front of the city of Tacoma from a point opposite Fifteenth Street to the termination aforesaid ; and that the greater part of the space two hundred feet in width on either side of the railroad, throughout these two miles, was below high water mark. And the bill alleged that the whole of that space between those points was, at the time of the passage of the act of 1864, “a part of the public domain, subject to no rights save those of the United States, and those at that date granted to this plaintiff by said act of Congress.” The bill further alleged that the plaintiff was the owner of the lands next the inner boundary of the right of way aforesaid; “ that the plaintiff is also the owner of the littoral and riparian rights, rights of access to deep water, and preference rights of purchase of the tide lands pertaining or belonging to the said lands; that said right of way and said lands are chiefly valuable for their right of access to deep 62 OCTOBER TERM, 1893. Statement of the Case. water and the right to construct landings and warehouses upon the same northward and westward to the navigable waters of Commencement Bay ; that many years prior to November 11, 1889, the plaintiff constructed and built upon the lands included within said right of way, and westward and northward thereof into deep water and the navigable water of the said Commencement Bay, wharves, upon which are constructed, in addition to the tracks, switches, turnouts, side tracks, spur tracks, station buildings and freight houses, and the other terminal facilities of its railroad; also warehouses for the accommodation of general commerce and shipping by water, coal bunkers for the accommodation of loading coal into ship§ and to facilitate the shipment thereof by water, wheat warehouses and grain elevators for the accommodation of the loading of ships with wheat and other grain, and to facilitate the shipment thereof by water, all of which were constructed for the accommodation of commerce and for the loading of ships and to facilitate navigation and all classes of shipment by water ; and ever since has continuously maintained and does now maintain and use the same for the benefit of trade, commerce and navigation ; that the land hereinbefore described is situated between said plaintiff’s right of way and the platted portion of the city of Tacoma, and consists of a high, steep, abrupt bluff, over or across which a railroad could not be properly or safely built ; that a railroad built over or across the same would not be practicable to operate so as to reach out and connect with the shipping by water on Commencement Bay ; that the space included within the right of way limits designated upon the map hereto attached is the only space between the saii bluff and the waters of Commencement Bay upon which the tracks, station buildings and terminal facilities of said plaintiff’s railroad could be located, and the only space within the city of Tacoma where said plaintiff could establish such facilities as are necessary to make possible and facilitate transshipment from rail to vessel and from vessel to rail ; that the general warehouses, coal bunkers, and wheat and grain warehouses, built and. constructed along said harbor PROSSER v. NORTHERN PACIFIC RAILROAD. 63 Statement of the Case. front upon and extending outward from said right of way and said abutting lands, are also necessary adjuncts to the proper operating of said railroad and necessary to aid in and facilitate the said transshipment from rail to vessel and from vessel to rail;” and that a point opposite South Second Street, (about half-way along the aforesaid two miles,) was the first point on Commencement Bay, in the harbor front of the city of Tacoma, reached by the plaintiff’s line of railroad, going westward towards the waters of Puget Sound, “ where water can be found of sufficient depth to accommodate the navigation of deep-water vessels; and that all of the space included within said right of way of the plaintiff between said point and the* point of termination of said plaintiff’s line is required for the accommodation of the terminal facilities necessary in the use and operation of the plaintiff’s said railroad.” The bill then alleged that the plaintiff’s wharves, buildings and other facilities had been constructed at an expense of several millions of dollars; and were indispensable to the performance of the duties imposed upon the plaintiff by its charter; that for the public welfare and for the benefit of commerce and navigation it was necessary that they should be constructed and maintained upon and along said water front, and be used by the plaintiff in connection with its railroad; and that, though in large part below high water mark, they were not obstructions, but were aids, to commerce and navigation. The bill further alleged that the harbor line commissioners, pretending to act under authority of the statutes of the State, of March 28, 1890, (1 Hill’s Laws of the State of Washington, tit. 23, cc. 1, 3,) were about to take final action in the location and establishment of the harbor lines and lines of waterways within the city of Tacoma, in such a way as to include within those lines a part or the whole of the plaintiff’s right of way, wharves, warehouses and other improvements, and, unless prevented by injunction, would thereby deprive the plaintiff of the use and benefit thereof, without compensation or due process of law, and would cloud the plaintiff’s title, 64 OCTOBER TERM, 1893. Opinion of the Court. J/z. W. C. Jones, Attorney General of the State of Washington, (with whom was Mr. William Lair Hill on the brief,) for appellants. Mr. James McNaught and Mr. A. JEL. Garland for appellee. Mr. Justice Gray, after stating the case, delivered the opinion of the court. It may be admitted that the Congress of the United States, while the present State of Washington was a Territory, had the power, in chartering a corporation to construct and maintain a railroad from Lake Superior to the Pacific Coast, to grant to the corporation such title or rights in lands below high water mark of tide waters of the Territory, as might be necessary or convenient for the building, maintenance, use and enjoyment of such structures as might be required for commerce and transportation on the railroad and by sea, and for transferring goods and passengers between the railroad and sea-going vessels. Shively v. Bowlby, just decided, ante 1 ; In re New York Central & Hudson River Railroad, 77 N. Y. 248; In re Staten Isla/nd Rapid Transit Co., 103 N. Y. 251. The more serious question, whether the grant of Congress to the Northern Pacific Railroad Company of the right to construct a railroad to the waters of Puget Sound can be construed as authorizing the corporation to lay out its railroad for two miles, below high water mark, along the shore of a harbor, so as practically to monopolize the use of the waters of the harbor, and of the lands under them, cannot properly be decided in this suit, and we express no opinion upon it. There can be no doubt that a State may, by its legislature, or through a board of harbor commissioners, establish, for the protection and benefit of commerce and navigation, harbor lines in navigable waters, not inconsistent with any legislation of Congress, limiting the building of wharves and other structures upon lands not already built upon. Yesler v. Wash. Harbor Commissioners, 146 U. S. 646; Weber v. Harbor Commissioners, 18 Wall. 57; Atlee v. Packet Co., 21 Wall. HUTCHINSON INVESTMENT CO. v. CALDWELL. 65 Statement of the Case. 389, 393; Commonwealth v. Alger, 7 Cush. 53: People n. New York & Staten Island Ferry, 68 N. Y. 71; State n. Sargent, 45 Conn. 358. Such harbor lines, in order to fulfil their purpose, must be established according to a general system, having in view not only the convenience of approach to the water from the shore, but the effect of the daily ebb and flow of the tide in keeping clear or filling up the harbor. The establishment of general harbor lines, of itself, takes or injures no one’s property, and cannot, consistently with the interests of the public, or with the principles of equity, be restrained by injunction. If the State of Washington, or the city of Tacoma, or any public officer or private individual, shall hereafter take active measures, or bring suit, so as to injure or affect the supposed title or rights of the plaintiff, or its use and enjoyment thereof, the dismissal of this bill will not stand in the way of a full and fair trial of the title and rights claimed. Decree reversed, and bill dismissed, without prejudice. Mb. Justice Harlan and Mb. Justice Jackson were not present at the argument and took no part in the decision of this case. HUTCHINSON INVESTMENT COMPANY v. CALDWELL. EBEOB TO THE SUPREME COURT OF THE STATE OF KANSAS, No. 190. Argued January 3, 4,1894. — Decided March 5, 1894. In States whose laws permit illegitimate children, recognized by the father in his lifetime, to inherit from him, such children are “ heirs ” within the meaning of Rev. Stat. § 2269, which provides that when a party entitled to claim the benefits of the preemption laws of the United States dies before consummating his claim, his executor or administrator may do so, and the entry in such case shall be made in favor of his heirs, and the patent, when issued, inure to them as if their names had been specially mentioned. This was an action brought by John Caldwell against D. B. Miller (for whom the Hutchinson Investment Company vol. cm—5 66 OCTOBER TERM, 1893. Statement of the Case. was substituted) and L. B. Miller in the District Court for Reno County, Kansas, to have his title established and recover possession of the northeast quarter of section twelve, township twenty-three south, range six west, in that county. The case was submitted to the District Court for trial, a jury being waived, and the court made special findings of fact and gave judgment in favor of the defendants, whereupon the cause was taken on error to the Supreme Court of Kansas. The Supreme Court reversed the judgment of the court below and remanded the cause with a direction to enter judgment upon the findings of fact in favor of Caldwell and against the defendants for an undivided thirteen twenty-eighths of the land and damages for its detention, and thereupon this writ of error was brought. The facts necessary to be stated were in brief these: Robert Titus was married to Phoebe Thomas in Vermont in 1809, and the sole issue of this marriage was Alden W. Titus, born in October, 1810. After the birth of this son, Robert Titus, having gone into the war of 1812, abandoned both wife and child, and, in 1818, without having obtained a divorce, had a marriage ceremony performed between him and Miriam Lee in the State of New York. By her he had five children, of whom the youngest was a daughter, Lois, who married D. B. Miller. From 1850, Robert Titus lived with Mr. and Mrs. Miller, and in 1871 the family went to Reno County, Kansas, and settled there. July 10, 1871, Robert Titus made a preemption entry upon the land in controversy, but died before consummating his preemption claim. After his death, D. B. Miller, administrator of his estate, filed the necessary papers to complete the preemption, paying the price thereof, four hundred dollars, to the United States, with his own money, and April 20, 1874, a patent to the land was issued, to the effect that “the United States of America, in consideration of the premises and in conformity with the several acts of Congress in such cases made and provided, have given and granted, and by these presents do give and grant, unto the said heirs of Robert Titus, deceased, and to their heirs, the tract above described; to have and to hold the same, together HUTCHINSON INVESTMENT CO. v. CALDWELL. 67 Opinion of the Court. with all the rights, privileges, immunities, and appurtenances of whatsoever nature belonging, unto the said heirs of Robert Titus, deceased, and to their heirs and assigns forever.” The children of Robert Titus and Miriam Lee were notoriously recognized by Robert Titus as his own, and no question was ever raised as to their legitimacy until in this suit. D. B. Miller claimed the fee simple title to the land by conveyances from the heirs of Alden W. Titus, as the only heir of Robert Titus, deceased; and if the children of Robert Titus and Miriam Lee were heirs within the meaning of section 2269 of the Revised Statutes of the United States, then Caldwell was entitled to recover an undivided thirteen twenty-eighths of the land and damages. The opinion of the Supreme Court of Kansas, by Horton, C. J., is reported in 44 Kansas, 12. J/r. Aimerin Gillett for plaintiffs in error. Air. S. B. Bradford and Air. G. A. Huron, for defendant in error, filed a brief on his behalf, but the court declined to hear them. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. By the statutes of Kansas, which was the State of the domicil of Robert Titus at the time of his death, and of the location of the real estate’ in controversy, illegitimate children could inherit from their father when they had been recognized by him, provided such recognition was general and notorious, or in writing. Gen. Stat. Kansas, 786, c. 33, §§ 22, 23. Under the circumstances disclosed on this record, therefore, the grantees in a deed to the heirs of Robert Titus and to their heirs would have embraced the children of Miriam Lee and their heirs, and this would be so as respects this patent, unless section 2269 of the Revised Statutes, under which it was issued, provided otherwise. 68 OCTOBER TERM, 1893. Opinion of the Court. The section reads: “ Where a party entitled to claim the benefits of the preemption laws dies before consummating his claim, by filing in due time all the papers essential to the establishment of the same, it shall be competent for the executor or administrator of the estate of such party, or one of the heirs, to file the necessary papers to complete the same; but the entry in such cases shall be made in favor of the heirs of the deceased preemptor, and a patent thereon shall cause the title to inure to such heirs, as if their names had been specially mentioned.” We are unable to concur with counsel for plaintiffs in error that the intention should be ascribed to Congress of limiting the words “ heirs of the deceased preemptor,” as used in the section, to persons who would be heirs at common law (children not born in lawful matrimony being therefore excluded) rather than those who might be such according to the lex rei sitae, by which, generally speaking, the question of the descent and heirship of real estate is exclusively governed. If such had been the intention, it seems clear that a definition of the word “ heirs ” would have been given, so as to withdraw patents issued under this section from the operation of the settled rule upon the subject. That rule was thus referred to by this court in United States v. Fox, 94 U. S. 315, 320: “ It is an established principle of law everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated ; ” and although Congress might have designated particular grantees to whom the land should go in the first instance, it did not do so, nor make use of words indicative of any intent that the law of the State should not be followed. But it is contended that the word “ heirs ” was used in its common law sense, and it is true that technical legal terms are usually taken, in the absence of a countervailing intent, in their established common law signification, but that consideration has no controlling weight in the construction of this statute. Undoubtedly the word “heirs” was used as meaning, as at common law, those capable of inheriting, but HUTCHINSON INVESTMENT CO. v. CALDWELL. 69 Opinion of the Court. it does not follow that the question as to who possessed that capability was thereby designed to be determined otherwise than by the law of the State which was both the situs of the land and the domicil of the owner. The object sought to be attained by Congress was that those who would have taken the land on the death of the preemptor, if the patent had issued to him, should still obtain it notwithstanding his death, an object which would be in part defeated by the exclusion of any who would have so taken by the local law if the title had vested in him. In other words, Titus intended to acquire the title and had complied, or was proceeding to comply, in good faith, with the requirements of the law to perfect his right to it, and by this statute that right could be perfected after his death for the benefit of those who would have been entitled if his death had occurred after patent instead of before. If the provision admitted of more than one construction, that one should be adopted which best seems to carry out the purposes of the act. Bernier v. Bernier, 147 U. S. 242. In this view, it was held in Brown v. Belmar de, 3 Kansas, 41, that the words “heirs of deceased reservees” in the act of Congress of May 26, 1860, c. 61, (12 Stat. 21,) which operated as an original grant to certain reservees and their heirs, designated the persons who were capable of inheritance by the law of the State when the act of Congress took effect. And see Clark v. Lord, 20 Kansas, 390. So the usual rule was recognized in Lamb v. Starr, Deady, 350. By the fourth section of the Oregon Donation Act, of September 27, 1850, c. 76, (9 Stat. 496,) it was provided that if either the settler or his wife died before the issue of the patent, “ the survivor and children or heirs of the deceased ” should be entitled to the share or interest of the deceased in equal proportions; and the late Judge Deady, referring to the disposal of the share of a deceased wife, said that at the time of her death “ there was no statute in Oregon regulating the descent of real property, or declaring who should be the heirs of an intestate, and, therefore, the subject was regulated by the common law. By this rule her children were her heirs. 70 OCTOBER TERM, 1893. Opinion of the Court. The Donation Act does not prescribe who shall be considered the heirs of a deceased settler any more than it prescribes who shall be considered the wife of a settler. Both of these are left to the local law — the law of Oregon. If the law of Oregon at the time of Nancy’s death had prescribed that brothers and sisters should be heirs to the intestate, either exclusive or inclusive of the children, it appears to me that, under the Donation Act, then the children would take to the exclusion of the brothers and sisters. Congress seems to have intended to secure the share of the deceased to her children, if any, whether the law of Oregon made them heirs or not. Beyond this it left the matter to the local law, by providing the alternative, that in default of children, such share should go to her heirs, whoever they might be. Who would be entitled to claim as heir of the deceased would, in all cases, depend upon the law of Oregon at the time of the death, but persons claiming as children are by the Donation Act preferred to those claiming simply as heirs by the local law.” And in Davenport v. Lamb, 13 Wall. 418, 427, it was pointed out that the act of Congress of May 20,1836, c. 76, (5 Stat. 31, Rev. Stat. § 2448,) providing that where patents had been issued to persons who had died, the title should inure to and become vested in “ the heirs, devisees, and assigns ” of the deceased, made the title inure in a manner different from that provided by the Donation Act, upon the death of either owner before the issue of the patent, because the survivor of the husband or wife was not his or her heir by any law of Oregon at the time of the death in that case. There is nothing to the contrary in McCool v. Smith, 1 Black, 459, which was a case coming to this court from Illinois, in which it was held that the meaning of the words “next of kin” was to be determined by the common law of England, because the common law in that regard was then in full force in that State. The language of the acts of Congress has not been uniform in the matter of the disposition of the public domain, after the death of the principal beneficiary. Thus under section 2443, in respect of bounty lands granted to officers and soldiers of PLANT INVESTMENT CO. v. KEY WEST RAILWAY. 71 Opinion of the Court. the Revolutionary War or soldiers of the War of 1812, the patent when applied for by part of the heirs was to be issued in the name of the heirs, generally, and to inure to the benefit of the whole in such portions as they were severally entitled to by the laws of descent in the State or Territory of the decedent’s domicil; and other illustrations might be given. These differences, however, cannot affect our conclusion here, which, under the circumstances, accords with that of the Supreme Court of Kansas. Judgment affirmed. PLANT INVESTMENT COMPANY v. JACKSONVILLE, TAMPA AND KEY WEST RAILWAY COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF FLORIDA. No. 226. Argued January 24,1894. — Decided March 5, 1894. A Circuit Court of the United States has no jurisdiction over a suit to enforce a contract for the conveyance of land brought in the State where the land is situated by the assignee of one party to the contract against the other party, if both parties to the contract are citizens of the same State, although the assignee is a citizen of a different State. The case is stated in the opinion. Hr. John E. IIartridge, (with whom was Mr. R. G. Erwin on the brief,) for appellant. Mr. Charles M. Cooper, (with whom was Mr. J. C. Cooper on the brief,) for the trustees of the internal improvement fund of Florida, appellees. Mr. Justice Field stated the case, and delivered the opinion of the court. 72 OCTOBER TERM, 1893. Opinion of the Court. This case comes to us on appeal from the decree of the Circuit Court for the Northern District of Florida sustaining the demurrer to the bill of complaint and dismissing the suit. The bill was brought to enforce the conveyance of certain lands in Florida, pursuant to the contract of the trustees of the internal improvement fund of Florida, made pursuant to certain statutes of that State, with the Jacksonville, Tampa and Key West Railway Company, a corporation created under its laws, the beneficial results of which contract are claimed by the complainant. The facts out of which the suit arises are given at length in the bill, and, as there set forth, may be briefly stated so far as is necessary for the presentation of the question of jurisdiction, upon which the demurrer turned. The Plant Investment Company, the complainant, is a corporation under the laws of Connecticut, having its principal office at New Haven. The defendants are the Jacksonville, Tampa and Key West Railway Company, and the trustees of the internal improvement fund of Florida, citizens and residents of that State. The bill of complaint sets forth: That the general assembly of Florida, by an act of January 6, 1855, “to provide for and encourage a liberal system of internal improvements in the State,” declared that the lands granted to the State by the acts of Congress of March 3, 1845, and September 28, 1850, together with the proceeds thereof, accrued or that might thereafter accrue, should be set apart and made a separate fund, to be called the internal improvement fund of the State; and that, for the purpose of assuring a proper application of the fund for the objects mentioned, the lands and the funds arising from the sale thereof, after paying the necessary expenses of selection, management, and sale, should be vested in five trustees, to wit, in the governor of the State, the comptroller of public accounts, the state treasurer, the attorney general, and the register of state lands, and their successors in office, to hold the same for the uses provided in the act; and by its twenty-ninth section, the general assembly reserved the right to grant to such railroad companies, thereafter chartered, as PLANT INVESTMENT CO. u KEY WEST RAILWAY. 73 Opinion of the Court. they might deem proper, upon their compliance with the provisions of the act as to the manner of constructing the road and the drainage of the land, the alternate sections of the “ swamp and overflowed lands ” for six miles on each side of the line of the road of any such company. That the Jacksonville, Tampa and Key West Railway Company was incorporated in March, 1878, under the general corporation act of the State of February, 1874, by the name of the Tampa, Peace Creek and St. John’s River Railroad Company. That the legislature of Florida by act of March 4, 1879, granted to that company alternate sections of the lands given to the State by the act of Congress of September 28, 1850, within six miles on each side of the track or line of its road, provided that the company should comply with the specified provisions of the act of January 6, 1855; and further granted to the company, in consideration of the greatly improved value which would accrue to the State from the construction of the road, ten thousand acres of the same class of lands for each mile of road it might construct, such lands to be of those nearest to the line of the road, its branches and extensions, this last-named grant being made subject to the rights of all creditors of the internal improvement fund and to the trusts to which the fund was applicable under the act of January 6, 1855. That on the 27th of June, 1881, the Tampa, Peace Creek and St. John’s River Railroad Company, by a resolution of its board of directors, changed its corporate name to Jacksonville, Tampa and Key West Railway Company, and on the 23d of August, 1881, filed a plat of its route with the trustees of the internal improvement fund; and on the first of September, 1881, the trustees passed a resolution reserving from sale for the benefit of the company the even-numbered sections of land for six miles on each side of its line, and again on the 21st of September, 1881, acting under the provisions of the act of the legislature of March 12, 1879, “ to amend section 26 of the act to provide a general law for the incorporation of railroads and canals,’ and to grant aid to railroads and canals incorporated under said act,” they passed a resolution to reserve from sale, to further aid in the construction of the road, a quantity U October term, 1895. Opinion of the Court. of lands in the even-numbered sections within twenty miles of said road sufficient to supply the deficiency existing in the even-numbered sections within six miles of the road. The bill further avers that in 1883 the complainant entered into a contract with defendant company to construct the southern division of its road, to extend from the waters of Tampa Bay, in Hillsborough County, to Kissimmee City, in Orange County, with a branch to or near Bartow, in Polk County, and by that contract was to receive, as a part of the consideration for the construction of the road, all the alternate sections of land to which defendant company was or might be entitled under any of the aforesaid acts and any of the laws of Florida for its construction; that the resolutions passed by the board of trustees September 21, 1881, had been published in the report of its official proceedings, and submitted to the legislature in January, 1883, with the reports of the heads of departments of the state government, and went forth to the world unchallenged as the official action of the trustees, with the silent approval of the legislature; and the complainant, relying on the provisions of the acts of March 4 and 12, 1879, and the resolutions of the trustees, was induced to enter into its contract with the defendant company, believing that it would receive all the lands contemplated by those acts and resolutions; that to carry out the contract made between the complainant and the defendant company, the board of directors of that company passed a resolution in November, 1883, requesting and directing the trustees of the internal improvement fund to convey to the complainant all the alternate sections of land to which the defendant company was or might be entitled by reason of the construction of the said railroad from Tampa to Kissimmee City and its branch, and a copy of that resolution was presented to the trustees and entered in the minutes of their proceedings; that, as soon as practicable, after making the contract, complainant commenced the construction of the road and completed the line from Tampa to Kissimmee, a distance of seventy-five miles, by the following January; and the completion of the road being PLANT INVESTMENT CO. v. KEY WEST RAILWAY. 75 Opinion of the Court. reported to the trustees, the state engineer was directed to inspect the same, which he did, and approved it as being built according to the specifications required; whereupon the trustees accepted the same. That when the complainant applied for the lands which it claimed under the contract with defendant company, it discovered that not only the lands in the even sections within twenty miles, but also within six miles of the road, had been selected by one Hamilton Disston, to whom the board of trustees had contracted to sell four million acres of land to pay off a large indebtedness of their fund, as a part of his purchase; that the complainant protested to the trustees against permitting said Disston to take these lands, but the trustees decided that the claim of said Disston for any lands outside the six-mile limit of said road should take precedence of the claim of the defendant company, and of the complainant contractor thereunder. The bill further sets forth that in February, 1884, the trustees conveyed to the complainant the lands granted to the State by the act of September 28, 1850, lying in the even-numbered sections and within six miles of the line of that portion of the road constructed which then remained undisposed of, viz., 123,481 acres, for the entire seventy-five miles of the road; and that the complainant is advised and believes that, under the grant of the alternate sections, the defendant company is entitled to 3840 acres of land for each mile of road it constructed, and that, where there is not sufficient land in the alternate sections within six miles of the line of the road to make that quantity, the deficiency can be made up from the alternate sections within twenty miles, under the act of March 12, 1879, and resolution of September 21, 1881; and that the complainant under its contract with the defendant company has the same right for such part of the road as it has constructed, and alleges that there is a deficiency in the quantity of land to which it is entitled of about 160,000 acres. After stating other matters not material for the consideration of the question presented for our determination, the bill prays that the trustees of the internal im- 76 OCTOBER TERM, 1893. Opinion of the Court. provement fund be compelled to convey to complainant the necessary lands to make up to the complainant the deficiency claimed, according to the terms of their contract with the defendant railroad company; the complainant asserting its right to the lands necessary to make up this deficiency by virtue of its contract with the defendant railroad company for the construction of the road. To this bill the defendant trustees of the internal improvement fund demurred, on the ground, among others, that the court had no jurisdiction in the premises. The contract between the trustees of the internal improvement fund of Florida and the defendant railroad company, being a contract between citizens and residents of the same State, could not be enforced by suit in a Federal court. The complainant, the Plant Investment Company, claims the benefit of that contract, and seeks to have it enforced for its benefit. It occupies, in fact, the position of assignee of that contract, its only right to the lands depending upon its validity. But it cannot enforce the contract in the Federal court; because, by section 629 of the Revised Statutes, it is provided that no Circuit Court shall have cognizance of any suit to recover the contents of any promissory note, or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange. And the same provision is contained in the act of March 3, 1887, c. 373, 24 Stat. 552, amendatory of the act to determine the jurisdiction of the Circuit Courts of the United States. As we said in the case of Shoecraft n. Bloxham, 124 U. S. 730, 735, “ the terms used —1 the contents of any promissory note or other chose in action ’ — were designed to embrace the rights the instrument conferred which were capable of enforcement by suit. They were not happily chosen to convey this meaning, but they have received a construction substantially to that purport in repeated decisions of this court.” And in support of this doctrine the case of Corbin v. County of Black Hawk, 105 U. S. 659, was cited. In that case a suit brought to enforce the specific performance of a ST. LOUIS &c. RAILWAY v. SCHUMACHER. 77 Syllabus. contract was held to be a suit to recover the contents of a chose in action, and therefore could not be maintained under the statute in question in a Federal court in the name of the assignee, if the assignor could not have maintained such suit. The complainant is not, it is true, designated in the pleadings or in any formal instrument as assignee of the contract between the trustees of the internal improvement fund and the defendant railway company, but the term “assignee” in the statute covers not merely persons to whom is technically transferred the contract in controversy, but any one who, by virtue of any transfer to him, can claim its beneficial interest. The contract under which the complainant claims, to wit, its contract with the defendant company for the construction of the road, transferred to it the beneficial interest of that company in the lands covered by its contract with the trustees, and therefore brings the suit within the prohibition of section 629 of the Revised Statutes. It follows that the Circuit Court had no jurisdiction of this case in the name of complainant, but as the decree below dismissed the bill generally, that decree is reversed at the costs of appellant, and the cause remanded with a direction to dismiss the bill for want of jurisdiction and without prejudice. Dismissed. ST. LOUIS AND SAN FRANCISCO RAILWAY COMPANY v. SCHUMACHER. error to the circuit court of the united states for the WESTERN DISTRICT OF ARKANSAS. No. 239. Submitted February 1,1894. — Decided March 5, 1894. When the employé of a railroad company sues the company to recover damages for injuries inflicted upon him while in its service by reason of defective machinery, and it plainly appears that he was guilty of contributory negligence, and there is no evidence of a wilful or intentional negligence on the part of the railroad company for the purpose of injuring the plaintiff, there is nothing in the case to submit to the jury. 78 OCTOBER TERM, 1893. Counsel for Defendant in Error. This was an action by Schumacher to recover for personal injuries received by him while in the employ of the defendant railway company as a laborer upon a gravel train, which was engaged in “surfacing” or ballasting defendant’s tracks in the Indian Territory. The complaint alleged that the plaintiff boarded the train at Tuscahoma, to aid in unloading the gravel when the car should reach its destination; that when the train reached Talihina, it was stopped on the main track to take on several cars loaded with gravel which were then on the side track; that after these cars were switched to the main track from the side track, they were cut loose from the engine and run with great force and violence down grade, until they struck the train on which plaintiff was riding; that the brakeman was unable to diminish the speed or check the cars, by reason of a defective brake, of the condition of which the defendant had notice, or might with proper diligence have had notice; and that by reason of the negligence of the defendant in permitting such defective brake to be used, plaintiff was, by the striking of the cars against the train on which he was riding, violently thrown from the car upon the track, the wheels running over his left foot and inflicting painful and serious injuries. In a supplemental complaint, plaintiff further charged the defendant with negligence in failing to make and enforce suitable regulations as to the manner of switching and making up trains, regulating the speed thereof, and providing a sufficient number of brakemen to check and control the cars. The answer put in issue all these allegations, and pleaded contributory negligence on the part of the plaintiff. Upon the trial the case was submitted to jury, who returned a verdict for the plaintiff in the sum of $8000, upon which judgment was entered, and defendant sued out this writ of error. fl/r. George R. Peck, Mr. A. T. Britton, Mr. A. B. Browne, and Mr. E. D. Kenna for plaintiff in error. Mr. A. EL Garla/nd for defendant in error, ST. LOUIS &c. RAILWAY v. SCHUMACHER. 79 Opinion of the Court. Mr. Justice Brown, after stating the case, delivered the opinion of the court. We do not find it necessary to consider in detail the specification of errors assigned to the charge of the court in this case, as we are of opinion that, upon the conceded facts, there was such contributory negligence on the part of the plaintiff as required the court to direct a verdict for the defendant. The testimony showed that plaintiff was employed as a common laborer by defendant; that it was his duty to assist in loading cars with gravel and then ride down on the train to that portion of the track where the gravel was to be used, and there to assist in unloading and placing the gravel between the ties. At the time of his injury, plaintiff was sitting on the end of a loaded flat car next to the caboose, with his feet hanging over the side of the car. The train had stopped at Talihina, a station between the gravel pit and its destination, to take up ten additional carloads of gravel, which were standing upon a side track, the original train consisting of four cars and a caboose. On arriving at Talihina, the engine left the cars and caboose on the main track, went in on the siding, coupled on thirteen cars that were standing on the side track, three of which next the engine were not wanted. When the engine and thirteen cars got on to the main track, the ten cars that were wanted were cut loose from the engine, and allowed to go down the grade. The grade proved to be a little steeper than the brakeman in charge of the cars supposed, and, to use his own words, “ The cars got the start of me a little, and when I saw they were going to hit a little too hard, I halloaed to the men ‘ Look out! ’ I saw they were going to hit harder than I thought, harder than cars ought to strike in making a coupling.” They came in contact with that portion of the train on which plaintiff sat with a violent jar or shock, which caused him to lose his balance, fall with his feet upon the track, when the wheels passed over a portion of his right foot, necessitating amputation. The testimony showed that the train was manned by the usual complement of trainmen, namely, a conductor, two 80 OCTOBER TERM, 1893. Opinion of the Court. brakemen, an engineer, and a fireman, and that each was competent. At the time of the injury, the conductor was near the forward end of the four stationary cars for the purpose of making the coupling. The engineer and fireman were in their proper positions upon the engine. One brake-man was with the engine and three cars, which were being replaced on the side track; and the other was on the ten cars which were to be attached to the train. There was no evidence of any defect in the brakes, machinery, or appliances, or any failure to make or enforce suitable regulations, and these issues were not submitted to the jury. There was evidence tending to show that the place where the plaintiff sat when he fell was a dangerous place to be in when cars were being coupled, and plaintiff testified that he knew that they were about to couple some cars, but was not watching and did not see the other cars come down. There was evidence tending to show that both the brakemen and the foreman shouted to the men on the flat cars to look out, and that they were distinctly heard by persons in a less favorable place to hear than the plaintiff. There was also evidence tending to show that the men had been warned by their foreman and by the train master not to ride on the flat cars, but to ride in the caboose, and that the conductor had told this same gang of laborers that morning that they had better ride in the caboose, and that there was plenty of room there. There was also testimony that the men often rode on flat cars with the knowledge of the foreman and conductor. The gist of all this testimony is that, notwithstanding the foreman and the train master had warned the men not to ride on the flat cars, and had provided a caboose in which he was told it was safer to ride, plaintiff selected a place he knew to be dangerous, when cars were being coupled; sat with his legs hanging over the side of the car in a position in which he could be easily jostled off, and paid so little attention to what he knew was going on that he not only did not watch or see the other cars coming down, but failed to hear a warning shout heard by others in the vicinity, at least one of whom was more remote than he. Under such circumstances, LAZARUS v. PHELPS. 81 Syllabus. ' he has no right to call upon the company to pay him damages. Had he been riding in the caboose, he would have been safe. Had he taken the precaution to notice what was go.ing on, he could not have failed to see that a collision was imminent, and could have jumped off. The only negligence chargeable against the defendant was in backing the train down at too great speed. But, giving to his own conduct as well as that of the defendant the construction most favorable to the plaintiff, there was no theory upon which it was proper to submit the case to the jury. There was no negligence by the defendant shown as occurring subsequent to the negligence of the plaintiff, since his negligence was continuous down to the moment of the injury. Neither was there any evidence of a wilful or intentional negligence on the part of the defendant for the purpose of injuring the plaintiff. None such was averred in the complaint, and none such was shown in the testimony. The case of Railroad Co. v. Jones, 95 U. S. 439, is directly in point, and is decisive of this. See also St. Louis d? San Francisco Railway v. Marker, 41 Arkansas, 542; Glover n. Scotten, 82 Michigan, 369. The judgment of the court below must be reversed, and the cause remanded with directions to set aside the verdict and for further proceedings in conformity with this opi/nion. LAZARUS v. PHELPS. error to the circuit court of the united states for the NORTHERN DISTRICT OF TEXAS. No. 225. Argued and submitted January 23, 24, 1894. — Decided March 5, 1894. An owner of grazing land in Texas, who stocks his land with cattle greatly m excess of the number which can be fed upon it, and permits them to go on and occupy and feed from the grass growing upon unoccupied land of a neighboring proprietor, with no separating fence, becomes liable to the latter for the rental value of his land so occupied. VOL. eLn—6 82 OCTOBER TERM, 1893. Statement of the Case. This was an action brought in the Circuit Court of the United States for the Northern District of Texas, September 17, 1888, by William Walter Phelps, to recover of the plaintiff in error, Sam. Lazarus, the rental value of 176,000 acres of land in Texas, from April 15, 1887, at eight cents per acre per annum. The facts of the case, as shown by the pleadings and proofs, were substantially as follows: In 1882 Phelps’s vendor leased these lands, the sections of which alternated with sections owned by the Texas public school fund, to the firm of Curtis and Atkinson for five years, at two cents per acre, for grazing purposes. It was agreed in the contract of lease that all improvements made by the lessees should become the property of the lessor at the expiration of the lease. Curtis and Atkinson, in conjunction with adjoining owners, built a fence around the north, east, and west sides of their land. These fences included the school sections as well as those of Phelps. They did not separate the sections leased by them from the alternate school sections by fence, nor did they apply for a lease of these alternate sections from the State until June 12, 1887. Before the lease was granted, however, Curtis and Atkinson sold nearly all the cattle and horses owned by them on the enclosure to Sam. Lazarus, plaintiff in error and defendant below. Lazarus applied to the State for a lease of these alternate school lands, and, in September, 1887, a lease was delivered to him to take effect from the date of the application of Curtis and Atkinson, June 12, 1887. There was a penalty under the law of Texas for using the public lands without a lease. Phelps became the owner of 168,300 acres April 15, 1887, and Curtis and Atkinson held under him as tenants at will up to the date of the sale of their stock. After the purchase of this stock by Lazarus, some negotiations were entered into with Phelps for a lease of the lands, but nothing came of them. Subsequently he secured the lease of the alternate school sections to the amount of 162,270 acres. In the fall of 1887, the owners of the land on the south of these sections in dispute erected a fence dividing their lands from those of Phelps, thus entirely enclosing the 168,300 acres LAZARUS v. PHELPS. 83 Opinion of the Court. belonging to Phelps and the alternating school sections in one continuous tract of land. During the tenancy of Curtis and Atkinson they had erected two tanks, one upon the land of Phelps. The location of the other was not proven. These tanks were subsequently used by Lazarus. After the purchase by defendant of the stock of Curtis and Atkinson, he contracted to pasture upon this land, besides his own stock, one herd of 3500 head, for which he received $5000 for the first year, and $1.65 per head until purchased by him in 1889; and 3000 calves for which he received $2500. The cattle owned and controlled by Lazarus were not confined to the school sections leased by him, but grazed upon the lands of Phelps; and the undisputed proof was that the entire tract was overstocked, but in no other way than by having his cattle in this enclosure, did Lazarus prevent the owner of the 168,300 acres from taking possession or from grazing other stock thereon. Upon this state of facts and proof as to the rental value of the land, Phelps secured a verdict and judgment for $8417. The defendant thereupon, sued out this writ of error. J/r. Henry C. Coke, for plaintiff in error, submitted on his brief. Hr. Leigh Robinson for defendant in error. Mr. Justice Brown, after stating the case, delivered the opinion of the court. But a single error is assigned to the action of the court below, and that is to the charge that defendant was liable to the plaintiff for the value of the use and occupation of the plaintiff’s land, if he had in the common enclosure more cattle than were sufficient to consume the grass on the lands leased of the State of Texas by the defendant. The defendant, upon the contrary, requested the court to charge that “ in Texas, the law is that the owner of stock is not required to keep them in an enclosure, or to prevent them 84 OCTOBER TERM, 1893. Opinion of the Court. from ranging on the land of others; and that the owner of land trespassed upon by cattle cannot recover from the owner of the cattle damages for the trespass, unless his land is fenced;” and further, “that to entitle the plaintiff to recover in this suit you must believe from the evidence that the plaintiff’s lands were fenced from those leased by defendant. If there was a common enclosure around the lands of plaintiff and those leased by defendant and no fence separating such lands, then the plaintiff cannot recover.” The views of the court below, concisely stated, are contained in the instruction that if the defendant kept the enclosure so overstocked, as plaintiff claimed, then he is liable for the value of the rent of plaintiff’s lands. The request of defendant, taken in connection with the instruction given, presents the respective views of the law entertained by counsel upon either side, and upon which the case turned. The rule of the common law was admitted to be that a land owner is not bound to fence his land against the cattle of others. The owner of such cattle must confine them to his own land, and will be liable for trespasses committed by them upon the unenclosed lands of others. This rule, however, has been modified in Texas by Revised Statutes of Texas, article 2431, which enacts that “every gardener, farmer, or planter shall make a sufficient fence about his clear land under cultivation at least five feet high, and make such fence sufficiently close to prevent hogs from passing through the same.” And by article 2434: “ If it shall appear that the said fence is insufficient, then the owner of such cattle, horses, hogs, or other stock shall not be liable to make satisfaction for such damages.” Construing this statute, the Supreme Court of Texas held, in Sabine <& East Texas Hallway v. Johnson, 65 Texas, 389, 393, that “ since the fence law of 1840 the owner of unenclosed land has no right of action for the intrusion of stock upon it. . . . The appellee had no right to graze his cattle on these leagues, but in doing so was guilty of no actionable wrong. In letting his stock range on this land he asserted no right in the land and acquired none.” See also Pace v, Potter, 85 Texas, 473, 476. This custom of permit- LAZARUS v. PHELPS. 85 Opinion of the Court. ting cattle to run at large without responsibility for their straying upon the lands of others was also recognized by this court in Buford v. Boutz, 133 U. S. 320. The object of the statute above cited is manifest. As there are, or were, in the State of Texas, as well as in the newer States of the West generally, vast areas of land over which, so long as the government owned them, cattle had been permitted to roam at will for pasturage, it was not thought proper, as the land was gradually taken up by individual proprietors, to change the custom of the country in that particular, and oblige cattle owners to incur the heavy expense of fencing their land, or be held as trespassers by reason of their cattle accidentally straying upon the land of others. It could never have been intended, however, to authorize cattle owners deliberately to take possession of such lands, and depasture their cattle upon them without making compensation, particularly if this were done against the will of the owner, or under such circumstances as to show a deliberate intent to obtain the benefit of another’s pasturage. In other words, the trespass authorized, or rather condoned, was an accidental trespass caused by straying cattle. If, for example, a cattle owner, knowing that the proprietor of certain lands had been in the habit of leasing his lands for pasturage, should deliberately drive his cattle upon such lands in order that they might feed there, it would scarcely be claimed that he would not be bound to pay a reasonable rental. So, if he lease a section of land, adjoining an unenclosed section of another, and stock his own section with a greater number of cattle than it could properly support, so that, in order to obtain the proper amount of grass, they would be forced to stray over upon the adjoining section, the duty to make compensation would be as plain as though the cattle had been driven there in the first instance. The ordinary rule that a man is bound to contemplate the natural and probable consequences of his own act would apply in such a case. In St. Louis Cattle Co. v. Vaught, 1 Texas Civil Appeals, 388, 390, the court observed: This doctrine, however, does not authorize the owner of cattle by affirmative conduct on his part to appropriate the 86 OCTOBER TERM, 1893. Opinion of the Court. use of such lands to his own benefit. He will not be permitted thus to ignore the truth that every one is entitled to the exclusive enjoyment of his own property. In this case the appellant, by means of fences constructed or maintained by it, enclosed the land of the appellee in such manner as to reap from it those benefits, which as a rule are incident exclusively to ownership. The use and enjoyment of the property under such circumstances import necessarily the idea of liability.” In this case it was held that, where the owner of several tracts of land, in enclosing them within a larger enclosure, necessarily enclosed a tract belonging to another, this was such an appropriation of the lands of such person as rendered the defendant liable for the reasonable value of the tract so enclosed. See also Kerwhacker v. Cleveland &c. Railroad, 3 Ohio St. 172; Union Pacific Railway v. Collins, 5 Kansas, 167, 177; Larkin v. Taylor, 5 Kansas, 433; Delaney v. Errickson, 11 Nebraska, 533; Otis v. ELorga/n, 61 Iowa, 712; Willard v. Matkesus, 7 Colorado, 76. In the case under consideration, the testimony showed that for five years before the plaintiff acquired title to the lands in question, they had been leased to Curtis and Atkinson for pasturage purposes, at a rental of two cents per acre, with the stipulation that all permanent improvements erected by the lessees during the term should, at the end of the term, remain on the leased lands, and become the property of the lessor; and that they were about leasing the alternate sections of school lands when they failed; that in September, 1887, defendant, who, in the June previous, had bought out the stock of Curtis and Atkinson, together with all their interest in the fences, corrals, water tanks, (one of which was upon plaintiff’s land,) and other property within the common enclosure of plaintiff and the public school lands, leased of the State the alternate sections of school lands within this enclosure for four years at four cents per acre. It seems, too, that negotiations were had, after defendant bought the cattle and horses from Curtis and Atkinson, between him and the plaintiff’s agent respecting the lease of plaintiff’s lands, but no agreement was reached between the parties as to the price to be paid, and the ROWE v. PHELPS. 87 Statement of the Case. same were not leased by the defendant or held by him as tenant of the plaintiff. The testimony further showed that, from the time defendant obtained the lease of the State until the date of the trial, the stock owned or controlled by him was more than sufficient to consume the grass on the plaintiff’s lands, and the sections alternating therewith leased by the defendant from the public school fund. Defendant not only pastured his own stock upon these lands, but 3500 head of cattle owned by one Evans, for which he received $5000 the first year, and for the remaining period up to the year 1889, when he purchased them, $1.65 per head, as well as $2500 for the pasturage of 3000 calves belonging to another party. These facts certainly showed an intent on the part of the defendant to avail himself of the pasturage of plaintiff’s lands, and fully authorized the instruction of the court to the jury that, if the defendant overstocked the enclosure, he should be held liable to the plaintiff for the rental value of the lands. In such case the law raises an implied promise to pay a reasonable sum for the use and occupation of the lands, even though negotiations for a new lease had proven unsuccessful. Schuyler n. Smith, 51 N. Y. 309. There was no error in the action of the court below, and its judgment is, therefore, Affirmed. ROWE v. PHELPS. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS. No. 237. Argued and submitted February 1, 1894. — Decided March 5, 1894. There being no assignment of errors, as required by Rev. Stat. § 997, and no specification of errors required by Rule 21, this case is dismissed. This was, as in the preceding case, an action by the defendant in error to recover the rental value of certain sections of land alleged to have been depastured by the plaintiffs in error, constituting the firm of Rowe Bros. 88 OCTOBER TERM, 1893. Statement of the Case. Upon the trial of the case the jury returned a verdict for the plaintiff in the sum of $7739, for which judgment was entered, and defendant sued out this writ of error. Mr. M. L. Crawford, for plaintiff in error, submitted on his brief. Mr. Leigh Robinson for defendant in error. Mr. Justice Brown, after stating the case, delivered the opinion of the court. There is no assignment of errors sent up with the record in this case, as required by Rev. Stat. § 997, and no “ specification of the errors relied upon,” as required by Rule 21 of this court. This rule requires that the specification “ shall set out separately and particularly each error assigned and intended to be urged,” and there is no such “plain error not assigned or specified,” as calls upon the court to exercise its option to review the questions involved. It would seem that unless the statute and rule are to be entirely disregarded, this writ of error must be Dismissed. GUMAER v. COLORADO OIL COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO. No. 50. Argued October 24,1893. — Decided March 5, 1894. The court being unable, in any view that it can take of the evidence, to reconcile the conflicting testimony of the witnesses respectively examined in behalf of the parties, holds that the evidence fails to show that the complainant is entitled to the relief prayed for. The Colorado Oil Company, describing itself as a corporation organized and existing under the laws of New York, brought its bill in equity in the Circuit Court of the United GUMAER v. COLORADO OIL COMPANY. 89 Counsel for Appellee. States for the District of Colorado, on June 15, 1887, against Augustus R. Gumaer, a citizen of Colorado, and the Florence Oil Company, of that State, praying for an injunction to restrain the defendant Gumaer from assigning or encumbering a certain leasehold estate, with, certain rights and privileges thereto annexed, and to restrain the defendants and each of them from consuming any oil, gas, metal, or mineral from the leasehold premises, or disturbing the complainant’s possession thereof, or destroying its property thereon. The court entered an order on the following day, restraining the defendants from doing any of the acts which the complainant sought to have enjoined until the 27th of the same month, the day set for a hearing of the cause. On that day it was ordered, in accordance with the stipulation of counsel, that the restraining order should remain in force until the final hearing, and that the defendants should answer to the merits on or before September 15, 1887. On the 12th of that month the defendant Gumaer filed his answer, and on the 3d of the following month the company filed a formal replication thereto. A judgment pro confesso against the Florence Oil Company was entered on February 6, 1888. The cause as against Gumaer was heard in the said court upon bill, answer, and evidence, and, on December 22, 1888, the court entered a final decree embodying the relief by injunction prayed for in the bill, and ordering that a lease from Stephen J. Tanner to Gumaer, dated October 6, 1886, be surrendered and delivered, for the use of the complainant, into the office of the clerk of the court, and that two other leases, dated respectively October 12,1886, and December 20,1886, by which it appeared that Gumaer had granted and demised certain parts of the property to the company, be cancelled and annulled, and all parties thereto be relieved from the conditions thereof. The defendants appealed from that decree to this court. Mr. Thomas M. Patterson for appellant. Mr. E. T. Wells, Mr. R. T. McNeal, and Mr. John G. Taylor, for appellee, submitted on their brief. 90 OCTOBER TERM, 1893. Opinion of the Court. Mb. Justice Shiras, after stating the case, delivered the opinion of the court. The Colorado Oil Company, a corporation organized under the laws of the State of New York, and whose purpose was to mine, produce, refine, and deal in petroleum and its products, procured from the owners of lands, situated in the county of Fremont and State of Colorado, leases authorizing said company to sink wells on such lands and to extract oil therefrom. On or about the 13th day of July, 1886, the company appointed Augustus R. Gumaer, then a resident of Canon City, Colorado, its general manager in that State. Gumaer acted as general manager of the company until December 21, 1886, when his resignation was accepted by the company, through its vice-president, in a letter containing the following terms: “ In accepting your resignation as general manager of the Colorado Oil Company for Colorado, I beg to express to you the regrets of the company and myself in losing your valuable services. You accepted the position when the company was in a precarious condition. Under your able management, its affairs to-day are in a much different condition, and prospects brighter than ever. I beg to express to you, for the company and myself, our thanks for the interest which you have taken in our affairs; and I beg to express the wish that our friendly relations may always continue.” On the 15th day of June, 1887, the Colorado Oil Company filed a bill of complaint against Gumaer and the Florence Oil Company, in which it sought to have Gumaer declared a trustee for it as to a certain lease for oil lands in Fremont County, which had been granted by one Stephen J. Tanner to Gumaer in his own name, but in such circumstances as that in equity it was the property of the company. The bill further alleged that certain leases of portions of the Tanner tract, subsequently executed by Gumaer to the Colorado Oil Company, were in fraud of the company’s rights in the entire tract, and intended to operate as a fraud and deceit. It was also alleged that the Florence Oil Company, organized and controlled by Gumaer, had entered into possession of a part of the tract. GUMAER v. COLORADO OIL COMPANY. 91 Opinion of the Court. A decree pro confesso was taken against the Florence Oil Company. Gumaer answered, averring that the lease by Tanner to him was in his own right, and not as trustee, and that the leases of portions of the tract to the complainant had been made in good faith, and were binding, and that the rights of the complainant in the Tanner tract were limited and defined by those leases. The cause was put at issue, and a large amount of evidence was put in by both parties. The result in the court below was a decree in favor of the complainant, declaring that Gumaer had taken the Tanner lease in trust for the complainant company, and commanding the defendant to surrender and assign the same to the complainant, and also to surrender the leases made by Gumaer, of portions of said tract, to be cancelled. We are compelled to pass upon this case without the assistance of any opinion or findings of facts by the court below, and hence it has been necessary for us to consider all the evidence. The bill is definite and precise in its allegations, and waives answer under oath. The answer, although without weight as evidence, is also precise and specific in its allegations denying the equity of the bill. There is no view that we can take of the evidence that enables us to reconcile the conflicting testimony of the witnesses respectively examined in behalf of the parties. The principal witnesses who testified in behalf of the complainant were Jacob Wallace, president; Isaiah Josephi, vice-president, and Simeon E. Josephi, brother of Isaiah, and who succeeded Gumaer as manager of the company. Their testimony sustained- in substance the allegations of the bill. These witnesses were confronted by Stephen J. Tanner, the owner of the tract in question ; by Samuel H. Baker, who had acted as attorney for Gumaer, and also, for a part of the time, as attorney for the company, and by Gumaer himself; and their testimony is, in essential particulars, directly contradictory to that given by thè complainant’s witnesses. The principal matter in controversy is, whether Gumaer took the lease from Tanner for himself, or whether he took it 92 OCTOBER TERM, 1893. Opinion of the Court. in circumstances that, in equity, prevent him from asserting his personal ownership of it against the company. It was showm that the lease of Tanner to Gumaer was dated October 6, 1886, and when the latter was acting as general manager of the company, and it was claimed that he procured the lease by representing to Tanner that he was taking it for the company. It was testified by Wallace that he had, as president, directed Gumaer to procure additional leases, and particularly of the Tanner tract. He denied that Gumaer had informed him, before he agreed to become manager, that he had a contract of any kind with Tanner, and he denied that Gumaer had ever pretended to own a lease from Tanner. He also denied that Isaiah Josephi, the vice-president, had been authorized by the company to accept leases from Gumaer of portions of the Tanner tract. Simeon Josephi testified that Tanner had told him that he had given Gumaer a lease, knowing him to be the general manager of the Colorado Oil Company, and believing that the company would carry out the conditions of the lease; that when Isaiah Josephi came to Colorado in December, 1886, and had learned that Gumaer held a lease from Tanner, he demanded that it be turned over to the company; and that, on Gumaer’s refusal to turn over the Tanner lease, Josephi had, in order to avoid jeoparding the fixtures and property of the company that were on certain portions of the Tanner tract, accepted leases from Gumaer of such portions. Isaiah Josephi testified that he had accepted the leases from Gumaer under protest. On behalf of the defendants it was shown that while it was true that the lease from Tanner to Gumaer was executed on October 6, 1886, after he had been appointed manager, yet that it was given in pursuance of a contract in writing between Tanner and Gumaer, dated December 10, 1885, long before he had any connection with the company, which contract gave an option to Gumaer to purchase the tract. Tanner testified to the existence of the contract of December 10, 1885, between himself and Gumaer, and also that he made the lease of October 6, 1886, to Gumaer directly, with- GUMAER v. COLORADO OIL COMPANY. 93 Opinion of the Court. out any reference to the Colorado Oil Company, believing that he was able to execute the terms of the lease which required him to enter upon the land and commence operations within ten days. Gumaer testified that he had a contract with Tanner, and also with other parties, before he was appointed manager of the Colorado Company; that he had informed Wallace, the president, of his option for the Tanner tract before he was so appointed ; that he subsequently offered to give an interest in the tract to the company on certain terms. He denied that he had ever received any instructions, either orally or in writing, from the company to get for it any interest in the Tanner lands. He also testified that he gave the leases to the Colorado Oil Company of certain parts of the Tanner tract, after a conference with Isaiah Josephi, the vice-president, in full and satisfactory settlement. Samuel H. Baker, who was then acting as the company’s attorney, testified that he had learned from Wallace that Gumaer had explained to him about Gumaer’s connection with the Tanner lands. He also testified that he was present at the settlement between Gumaer and Josephi, vice-president, and that the lease from Gumaer to the company was given for “ the purpose of adjusting a small difference between the company and Gumaer, and was received by the company as a sort of compromise and settlement.” It must be apparent, from this brief statement of the testimony of these witnesses, that the principal matters on which the complainant’s right to relief depends are left in doubt and uncertainty. Nor are our doubts resolved in favor of the complainant, when we turn from the irreconcilable statements of the witnesses to the letters and telegraphic messages that passed between Gumaer and Wallace, president of the company. On the contrary, the impression made upon our minds by their perusal is favorable to the defendants. Thus, on August 21, 1886, Gumaer wrote a letter to Wallace, in which he distinctly adverts to his option on the Tanner tract, and says: “ My option does not expire before the middle 94 OCTOBER TERM, 1893. Opinion of the Court. of December, but I want to call your attention to the fact that time is passing by, and after we see the result of No. 5, something* must be done. I am confident that I can handle it with Denver parties, but, as promised, I will give you first chance” In a letter dated October 3, 1886, he wrote: “ I will make this proposition to the company : If you will sink one well immediately, one within a year and three more within the second and third years, I will give you the right to put the five wells on the one hundred and sixty acre lease that belongs to me, at one-eighth royalty, and in such places as you may select from time to time; however, this lease will not prohibit me from leasing or sinking other wells on said lease.” This was followed by a telegraphic dispatch, dated October 7, as follows: “To Jacob Wallace, President, 304 Greenwood Street, New York: “ Six down five hundred feet. Ignore my proposition third: make new one to-day. “ A. R. Gumaek, General Manager^ A letter of the same date read as follows: “ Canon City, Col., Oct. ^th, 1886. “Jacob Wallace, Esq., President. “ I wired you to ignore my proposition of the 3d, and that see new one which I make, viz.: “If you will drill two wells on Tanner tract, adjoining McCandless lease, say one in pumping distance from No. 6 and the other east side of said tract, and commence derrick for third rig, I will give you forty acres of the McCandless lease, all, at one-eighth royalty; that is to say, the three wells’ product and the forty acres, all for one-eighth royalty. “You are not required to do any work on the forty-acre tract; both leases are given for twenty years, or as long as oil is found in paying quantities. . . . “ You understand, these are lands I have held options on before I acted for the company. I consider this very valuable territory, and I cannot get you as favorable a lease, considering GUMAER v. COLORADO OIL COMPANY. 95 Opinion of the Court. location, from any one. . . . Please wire me on receipt of this whether to go on with the work under the above proposed lease. ... I will get ready, so that work can be pushed rapidly upon hearing from you. Do not fail to wire.” On October 11, Wallace sent the following dispatch : “ A. R. Gumaer, G. M., Canon City, Colo. “Without consulting trustees cannot consent to lease at more than one-tenth royalty. “Jacob Wallace, President” Upon October 12, Gumaer telegraphed Wallace as follows: “ I accept proposition, one-tenth ; have commenced work.” In this condition of affairs, Gumaer erected the derricks and fixtures on those portions of the Tanner tract which subsequently he leased to the company when he went out of their service. This, and other correspondence which it is unnecessary to quote, seems to strongly corroborate Gumaer’s version of these transactions. While it is true that the Tanner lease was executed after Gumaer’s appointment as manager, it was fairly an exercise of the option to purchase given him previously. Wallace’s allegation that he had instructed Gumaer to secure leases of the Tanner property is squarely denied by Gumaer. It was claimed that the company had given Gumaer a general power of attorney, authorizing him to make contracts and purchases, but the power, when produced, discloses that it merely authorized him to take such steps as were necessary in defending the company against a pending suit. Upon the whole, our examination of the evidence fails to convince us that the complainant is entitled to the relief prayed for. We, therefore, remand the case to the court below, with directions to set aside the decree and dismiss the bill. 96 OCTOBER TERM, 1893. Opinion of the Court. COLEMAN v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 109. Submitted November 23, 1893. —Decided March 5,1894. In an action brought to recover fees as assistant district attorneys in suits to vacate patents of public land, it being conceded that the complainants did not expect, during the period in which the services were performed, that the United States would compensate them, and that they looked for recompense to the clients who had retained them, and that the use of the name of the United States had been consented to on the application of the plaintiffs with the understanding that they were to receive no compensation from the United States, and that on the first intimation that they might look to the United States for compensation, their formal employment was at once terminated, held, that there was no contract, express or implied, between them and the United States, for a breach of which judgment should be rendered against the latter. The case is stated in the opinion. Jfr. Edwin B. Smith and J/r. T. II. N. McPherson for appellants. Mr. Assistant Attorney General Dodge and Mr. George H. Gorman for appellees. Mr. Justice Shiras delivered the opinion of the court. This is an appeal from a judgment of the Court of Claims, sustaining a demurrer of the defendants to the claimants’ petition, and dismissing the petition. It appears that in the year 1843 the government of Mexico granted to Miranda and Beaubien, citizens and residents of Mexico, a tract of land situated in Mexico. After the territory which included this grant was brought by treaty with Mexico within the jurisdiction of the United States Congress, in the year 1860, passed an act confirming the grant to Miranda and Beaubien. Subsequently, Miranda and Beaubien COLEMAN v. UNITED STATES. 97 Opinion of the Court. conveyed these lands to the Maxwell Land Grant and Railway Company, and thereafter the lands were surveyed by the government of the United States, and a patent for them issued to the said company. The petitioners allege that the grant from the Mexican government contained about one hundred and twenty-four thousand acres, but that the lands, included within the United States survey, embraced about two million acres, lying both in the Territory of New Mexico and the present State of Colorado, and that the excess included in said survey belonged to the United States, and was of great value, namely, of the value of two million dollars. The petitioners further state that upon portions of the lands included in said fraudulent survey many persons had become actual settlers and residents prior to the confirmation of the survey, and that some of said settlers, who claimed that their right to possession had been invaded by the land grant company, determined, in 1881, to commence legal proceedings to test the title of that company to so much of said lands as had been fraudulently or mistakenly conveyed to the company by the United States. The petitioners were employed by these settlers to take the necessary proceedings, and they, accord-iugly? pursued an investigation into the facts connected with the said alleged fraudulent survey, and expended much time and labor in so doing. In order to facilitate their proceedings the petitioners, on behalf of the settlers by whom they had been retained, applied to the then Attorney General of the United States for leave to bring suit in the name of the United States to vacate the patents which had been theretofore granted to the Maxwell Land Grant Company. They allege that they were duly authorized to begin suit for that purpose, and that, in pursuance of such authority, they drew and prepared two bills in equity, one to vacate and set aside the patent so far as it embraced lands in New Mexico, the other for like purpose in respect to the lands within the State of Colorado. They further state that they filed one of these bills in the United States Circuit Court for the Southern vol. cm—7 98 OCTOBER TERM, 1893. Opinion of the Court. District of Colorado. The parties defendant to said bill were the Maxwell Land Grant Company and others, on whose behalf an answer was filed. The court by order fixed the time within which the United States as complainants and the defendants should close the taking of their testimony, to wit, in September, 1883. It is further stated that, in the preparation for the trial of said case, the petitioners were required to expend time and money in the examination of maps and surveys of record in the various departments, and to go to New Mexico and Colorado, in order to get the names of proper persons to make defendants, and the names of witnesses. They allege that they were jointly employed by the settlers for the purpose aforesaid, and were to share equally in the moneys paid in compensation; but no sum was fixed or agreed upon as to the amount which they were to receive for their services, and that only the sum of $177 was paid to or received by them in compensation for services, or in reimbursement for money expended. In the fall of 1883 they were notified by the settlers that they could not furnish any more money to defray the expenses of the trial of said causes, neither could they pay attorneys any sum in compensation for services, for the reason that almost all the lands embraced within said fraudulent survey belonged to, and would revert to, the United States, and not to the settlers, in case of a successful result of said litigation: and that, as the benefits would result to the United States, they should bear the expenses of the litigation. They further allege that, on August 16, 1882, they had been, by the then Attorney General, appointed special district attorneys, without compensation, to prosecute said suits to vacate said patent; that, on receipt of the notice aforesaid from the settlers, they notified the duly constituted authorities of the United States that the settlers upon the disputed lands would not pay any of the expense connected with the prosecution of said suits, and requested that such expense should be borne by the United States. Thereupon and thereafter the United States refused to COLEMAN v. UNITED STATES. 99 Opinion of the Court. further employ them, but employed other counsel, and took and appropriated to themselves all the benefit and advantages of the labor so rendered and the expenses so expended by them. The petitioners claim that the United States are indebted to them, for such service and expenses, in the sum of $11,500. The appellants assign for error the judgment of the court below, in sustaining the government’s demurrer, and in dismissing their petition. The appellants contend that the facts disclosed in their petition constitute an implied contract on the part of the United States to pay the value of the services rendered and of the expenditures made in furtherance of a suit in which they were beneficially interested. Assuredly there may be a state of facts from which an implied contract or promise to pay for services rendered may be justly inferred, and we do not doubt that, in such a case, where the United States are parties defendant, the Court of Claims have jurisdiction, under section 1079 of the Revised Statutes, to entertain a suit and render judgment. United States v. Russell, 13 Wall. 623; Salomon v. United States, 19 Wall. 178; Hollister v. Benedict &c. Manfg. Co., 113 U. S. 59; United States v. Palmer, 128 U. S. 262. But we think that a promise to pay for services can only be implied when the court can see that they were rendered in such circumstances as authorized the party performing to entertain a reasonable expectation of their payment by the party benefited. It is a conceded fact in the present case, by express allegation in the petition, that the claimants did not expect, during the period in which the services were performed, that the United States would compensate them; that they looked for recompense to the clients who had retained them; and that their use of the name of the United States in the litigation was consented to on their own application, and with the express understanding that they were to receive no compensation from the United States. On the first intimation that they might, in the matter of compensation, exchange their clients for the United States, their formal employment was at once IOqXS OCTOBER TERM, 1893. Opinion of the Court. Aerminated^For their past services they are entitled to reprover l^Rithe settlers who employed them, but the admitted facts clearly show that the United States are under no express or implied obligation to answer for a breach of contract between the appellants and their clients. It is unnecessary to pursue the subject further. The court below committed no error in dismissing the claimants’ petition, and the decree is ______ Affirmed. BELDING MANUFACTURING COMPANY v. CHALLENGE CORN PLANTER COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN. No. 235. Argued January 31, February 1, 1894. — Decided March 5, 1894. Letters patent No. 204,216, granted May 28, 1878, to Richard T. Hambrook, for an improvement in refrigerators, are, in view of the prior state of the art, void for want of patentable novelty. The case is stated in the opinion. Mr. Taylor Everett Brown, (with whom was Mr. Charles Clarence Poole on the brief,) for appellant. Mr. Edwa/rd Taggart and Mr. Arthur Stem for appellee. Mr. Justice Shiras delivered the opinion of the court. Letters patent of the United States, No. 204,216, were granted, on May 28, 1878, to Richard T. Hambrook, for an improvement in refrigerators, and by various assignments the ownership thereof became vested, in 1885, in the Belding Manufacturing Company. In March, 1889, in the Circuit Court of the United States for the Western District of Michigan, a bill in equity was filed BELDING M’F’G CO. u COEN PLANTER CO. 101 Opinion of the Court. by the Belding Manufacturing Company against the Challenge Corn Planter Company, alleging infringement by the defendant of the complainant’s rights, as owner of the Ham brook patent, and praying for relief. The Challenge Corn Planter Company appeared and answered. The cause was put at issue, a large amount of evidence was put in by the respective parties, and, after argument, on June 25, 1890, a final decree was entered dismissing the bill of complaint, from which decree this appeal was taken. We have been aided in our consideration and decision of this case by very full and able arguments, oral and printed, on behalf of both the parties. Hambrook’s invention was described by himself as follows: “ The nature of my invention consists in the construction of a refrigerator having the ice chamber constructed in such a manner that the air will impinge upon the top, bottom, and sides of the ice, and that the continuous volume of cold air generated by the melting of the ice will descend, in a dry state, to the provision chamber without material hindrance, causing the displaced and less frigid air to ascend to the ice chamber through open spaces at each side thereof without meeting the descending current of cold air.” The specification describes the refrigerator as consisting of a cabinet or outer box, within which is an inner box, lined with metal throughout, and fastened and retained in its relative position to the outer case by any proper means used by makers of refrigerators. The inner box is divided into several compartments — one, occupying the upper part, being the ice chamber, and a lower one, consisting of two apartments, separated from each other by a partition, which is called the provision chamber. We accept, as a satisfactory description of the Ham brook refrigerator, that given by Melville E. Dayton, an expert examined on behalf of the complainant: “ The patent illustrates and describes a domestic or household refrigerator, containing an ice-box at the top, a lid over the ice-box, a provision chamber or chambers below the icebox, a partition separating the ice-box from the provision 102 OCTOBER TERM, 1893. Opinion of the Court. chamber or chambers, a central passage through this passage for the downflow of cold air from the ice-box to the provision chamber, side passages rising from the provision chamber outside of the ice chamber to near the top of the latter, overhanging cleats or shields covering these side passages, gutters at the margins of the central opening in the partition to prevent the passage of water from the ice chamber into the provision chamber, a deflecting plate over said central opening, to carry the water, which would drip directly through said central opening to the top of the partition at the sides of said opening, so that the gutters shall carry away all water or moisture falling from the ice or its supporting rack, and a pipe for draining off the water delivered by the gutters. The patent shows a vertical partition dividing the provision chamber into two compartments, said partition being extended up through the central opening in the horizontal partition and into the ice chamber.” The court below did not deem it necessary to consider and pass upon the question of infringement, but, being of opinion that, in view of former inventions and of the state of the art in reference to the construction of refrigerators, there was no patentable invention in the Hambrook patent, dismissed complainant’s bill; and if we are satisfied to adopt that conclusion of the court, no other question in the case need be considered. Quite a number of prior patents were put in evidence by the defendant, beginning with a patent to Sanford in 1855, followed by one to Lyman in 1856, to Banta in 1867, to Chase in 1869, to Hunt in 1870, to Rohrer in 1871, to Butler in 1875, and to Smith in 1877. Without going into a minute comparison of the features of these respective patents, it may be safely said that they closely resemble each other in the main particulars of their construction and in the objects sought to be effected. Certain disadvantages were overcome and improvements added from time to time. Litigation took place in which the courts were called upon to consider conflicting claims under some of these patents. The most important case, and the only one which we need to BELDING M’F’G CO. v. CORN PLANTER CO. 103 Opinion of the Court. notice, involved a contest between the Lyman and Sanford patents, and came to this court on appeal from the Circuit Court of the United States for the Southern District of New York. Roberts v. Ry er, 91 U. S. 150. The bill was filed by Roberts, assignee of Sanford, alleging an infringement of the patent to Sanford for an improvement in refrigerators. The principal defence relied upon was the prior invention of Lyman, and this defence was sustained in the court below, whose decree, dismissing the bill, was affirmed by this court in an opinion by Chief Justice Waite. In that opinion the Sanford patent is described to be for a combination of three elements, to wit: 1, an open-bottom icebox, or its equivalent, so constructed that the air may pass freely down through it, while, at the same time, the drip of the water from the melting ice is prevented by collecting the water and taking it in an escape-pipe outside of the refrigerator ; 2, a dividing partition, open above and below, separating the refrigerator into two apartments; and, 3, a chamber directly under the open-bottom ice-box, in which articles to be refrigerated may be placed in such manner as to receive the descending current of air from the ice-box directly upon them. The court proceeded to compare these devices with those found in the Lyman patent, in which were found an openbottom ice-box, and a partition open above and below, dividing the refrigerator into two apartments, in one of which the air passed downward only, and in the other upward only. Each called for the circulation of air, and each obtained it substantially by the same device. They each passed the air cooled in the ice-box through convenient openings downwards in one apartment, and upwards through the other. In each device the cooled air passed through the opening in the bottom of the partition, and the warm air through that in the top. All this was done in both cases for the purpose of cool-mg, desiccating, and purifying the confined air, and to prepare it for the purposes of refrigeration. There was, therefore, one common object to be accomplished by both inventors; and they each devised substantially the same plan for that 104 OCTOBER TERM, 1893. Opinion of the Court. purpose. With both of the inventors, the circulation by means of an ascending and descending current was the principal object to be obtained. One considered the greatest benefit for the purposes of refrigeration was to be derived from the use of the descending current, while the other saw more particularly the advantage of the ascending current, but they each had both, and could utilize both. The court, therefore, concluded that the effort to distinguish the two devices was futile; that if there was any change of construction suggested, it was only to increase its capacity for usefulness; that it was a carrying forward of new or more extended application of the original thought — a change only in form, proportions, or degree, doing the same thing in the same way, by substantially the same means, with better results. Bearing in mind the reasoning and conclusion of the court in that case, we shall pass by the patents subsequently granted till we reach that granted to Smith in 1877, reissued in 1878, and in which the court below found all the essential features of the Hambrook invention. Smith described his theory and devices in the following language: “ My invention relates to that class of refrigerators wherein a constant circulation of air is maintained through the ice-box and provision chambers; and its object is to increase the circulation, reduce the air to a lower temperature than heretofore, and to deliver such air into the provision chambers deprived of all odor and free from sweating, preventing the sides of said provision chambers from sweating, and better preserving the articles placed therein. “ My invention therein consists in the combination of an icebox of the entire width of the refrigerator, except the air passages at its end, said ice-box having a central air discharge opening in its bottom, the provision chambers and the air passages leading out of the same; also, in the combination of the same elements and an air discharge opening above the centre of the ice-box; also, in the combination of the ice-box with the central air discharge opening and a false bottom, raised above the bottom of the ice-box, having openings near BELDING M’E’G CO. v. CORN PLANTER CO. 105 Opinion of the Court. its ends and an air passage under it; also, in the combination of the various principal operative parts, all constructed and arranged as more fully hereinafter described.” In this description we recognize the principal features of those contained in the prior patents to Lyman and Sanford, and, without pausing to consider whether the art was thereby advanced within the meaning of the patent law, it is obvious that the territory for further invention, in this kind of refrigerator, was still further restricted. The appellant’s expert, Dayton, on rebuttal limited the Hambrook patent as follows: “ The Hambrook patent is not broadly for the idea or discovery that cold air is heavier than warm air, and will fall by its greater specific gravity, and thus cause the warm air which it displaces to rise; nor is it for the general location of an ice chamber above a provision chamber, by which the difference in specific gravity between the cold and warm air may induce a circulation; nor is it for a particular form of grate or support on which the ice may rest while allowing air to move downward in contact with the ice; nor is it for the idea of inclining a watershed in order to permit water to flow therefrom ; nor is it for the provision of an air passage broadly, by which air may descend from the ice chamber, or ascend from the provision chamber. All these things, broadly considered, were well known in various forms at the date of the Hambrook invention.” These admissions were plainly constrained by the claims and descriptions contained in the prior patents. So, too, the learned counsel for the appellant in his supplemental brief concedes that the Smith patent shows the provision chambers, the ice chamber, an ice-table or .rack equivalent to the rack of Hambrook, the equivalent of the double-inclined bottom pieces of Hambrook provided with a central opening— that it has also the equivalents of the gutters, and that it has the waste-water pipe. But it is claimed that the Smith patent does not contain the side passages of Hambrook or their equivalents, and that it does not have the deflector plate or any equivalent, and that these 106 OCTOBER TEEM, 1893. Opinion of the Court. missing elements are material to the combination ; and hence it is argued that the Smith patent, omitting these two elements of the Hambrook combination, did not anticipate the latter. Yet appellant’s expert witness, Dayton, in his analysis of the Smith patent admits — as of course he had to do — that it contained an uptake flue or passage at each end of the icebox, though he endeavors to distinguish them from the end passage ways of Hambrook, in that the former do not discharge into the sides of the ice chamber at the top thereof, but are continued or prolonged through spaces in the cover, which meet and open at the middle of the lid, which results, as he contends, in a retardation of the air currents. So, too, the same witness admits that the imperforate icerack in the Smith patent operates to prevent the water from dripping, and thus performs the function of the Hambrook deflector, though less advantageously, and he argues that an imperforate ice-rest is an entirely different thing from a separate deflector interposed between such'ice-rest and a subjacent opening. Whether the device in the Smith patent, to prevent the water from dripping into the provision chamber, by the use of an imperforate ice-rack can be deemed an equivalent for the Hambrook deflector, we need not decide, because the evidence is clear that the refrigerators made by the defendant company do not have the Hambrook deflector, but the ice is carried on an imperforate plate of corrugated metal, through which no water can drip. Either, then, this imperforate ice-rest is an equivalent of the Hambrook deflector, in which case the Smith patent was an anticipation, or it is not an equivalent, in which case the defendant’s refrigerator does not infringe in that particular. Nor do we think the distinction pointed out between the uptake flues or side passages in the Smith and Hambrook patents amounts to a patentable difference. The purpose of the flues is the same and their mode of operation is the same. The fact that Hambrook did not prolong these air passages along the lid or cover might perhaps be a better way of intro- NORTHERN PACIFIC RAILROAD v. EVERÊÏÏ. 10? Syllabus. ducing the air into the ice chamber, but it does not amount to a patentable improvement. As was said in Roberts v. Ryer, supra, “it was a mere carrying forward, a change only in form, proportions, or degree, doing the same thing, in the same way, by substantially the same means, with better results.” In view, then, of the state of the art as manifested by numerous prior patents, and particularly by that of Smith, we conclude that the Hambrook patent is void for want of patent-able novelty; and the decree of the court below, dismissing the bill for that reason, is Affirmed. Mr. Justice Gray was not present at the argument, and took no part in the decision of the case. NORTHERN PACIFIC RAILROAD COMPANY v. EVERETT. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NORTH DAKOTA. No. 188. Submitted December 21, 1893. — Decided March 5,1894. A switchman in the employ of a railroad company was directed, in the line of his regular duty, to connect together two cars, one of which was loaded with bridge timbers. The timbers were unusually and dangerously loaded, extending so far over the end of the car as to make the coupling dangerous. The switchman had no notice or knowledge of this fact, and in making the coupling was very severely injured. To an action brought to recover damages for the injury, the railroad company pleaded that the injuries were the result of the switchman’s negligence, and not of the negligence of the company, and on the trial asked to have the jury instructed to return a verdict for defendant. The court declined, and instructed the jury on this point, in effect, that they were to find whether the car was or was not properly loaded, and whether the plaintiff, by the exercise of proper diligence, could or could not have discovered the projecting timber before the cars came together and in time 108 OCTOBER TERM, 1893. Statement of the Case. to avoid the danger, and that if he could not, by the exercise of such diligence, have so discovered it, then he was entitled to recover. The jury returned a verdict for the plaintiff. Held, that, as there was no conclusive evidence of a want of due care on the part of the switchman in not observing the projecting timber while in discharge of his duty, and while his attention was directed to his work, there was no error or unfairness in these instructions. William J. Everett brought an action in the District Court of the Sixth Judicial Circuit of the Territory of Dakota on November 13, 1889, against the Northern Pacific Railroad Company, seeking to recover from it the sum of thirty thousand dollars as damages for injuries received by him in coupling cars owned and controlled by the company, alleging that he had received such injuries while in the employ of the company, as a yard switchman, in its yards at Jamestown, Dakota Territory, and while there engaged in the performance of his regular duties. The accident had happened, as he stated in his complaint, under the following circumstances: On July 6, 1889, he was at work in the yard, and was ordered by the yard foreman to couple together a car loaded with bridge timbers and a box car which was standing upon a side track. The car bearing the timbers was moved by a switch engine. This car was loaded in an unusual and dangerous manner, in that the timbers extended so far beyond each end of the car as to leave insufficient space for coupling with safety. The plaintiff had, however, no notion or knowledge of this fact. He attempted to carry out the orders which he had received, and in so doing his head was caught between the box car and the end of a heavy timber which projected over the end of the other car a distance of twenty-two inches. His injuries, thus received, were of a serious and permanent character, and consisted in the impairment, not only of his physical powers and senses, but also of his mental faculties. The defendant admitted, in its answer, its ownership and control of the cars mentioned, but denied generally all the other averments of the complaint upon which were founded the plaintiff’s alleged right to a recovery from it, and averred that the injuries, if any, received by the plaintiff were the result of his own negligence, and not of that of the defendant. NORTHERN PACIFIC RAILROAD v. EVERETT. 109 Statement of the Case. After the deposition, on behalf of the plaintiff, of a witness residing in the State of Washington had been taken, in pursuance of a commission to take testimony, issued out of the said territorial court, the portion of the Territory in which the action was pending became a part of the State of North Dakota, and before further proceedings were had in the case it was removed into the Circuit Court of the United States for the District of North Dakota, in which court a trial was had before the court and a jury. On the trial, after all the evidence for both parties had been heard, the defendant moved the court to instruct the jury to return a verdict for the defendant for the reason that the evidence in the case would not warrant a verdict for the plaintiff. The court refused to so instruct the jury, and the defendant excepted to this ruling. The court then instructed the jury as follows: “The fact that the plaintiff was injured in an effort to couple defendant’s cars at the time and place mentioned has not on the trial been contested, but the defendant says the plaintiff’s injury was the result of his own negligence, or that his own negligence contributed to his injury; and if this answer of defendant is true, it is a complete defence to this action. “ To entitle the plaintiff to a verdict, he must satisfy you, by a preponderance of the evidence, of these two principal facts: First, that his injury was the result of the negligence of the railroad company; and, second, that his own neglect was not the occasion of the injury, and did not in any manner contribute to it. If the plaintiff’s injury resulted from his own negligence, or if his own negligence contributed to his injury, he cannot recover. “The particular act which the plaintiff alleges constitutes the neglect on the part of the defendant which resulted in his mjury is that the flat car, which was in motion, and which he was ordered to couple to a box car standing on the track, was loaded with lumber, which projected twenty-two inches, or about that distance, over the end of the car where the coupling was to be made. 110 OCTOBER TERM, 1893. Statement of the Case. “ The first question for you to determine is, was this an unusual or improper or negligent manner of loading lumber on a flat car? If you answer this question in the negative, you need inquire no further, but will return a verdict for defendant. “If you answer this question in the affirmative, you Will then inquire whether such negligent loading of the lumber on the car was the cause of the plaintiff’s injury, unmixed with any negligence on his part; and if you find that it was, your verdict will be for the plaintiff. “ The plaintiff was bound to exercise care and diligence in his employment of coupling cars; he was bound to use all his senses as actively and intelligently as any prudent man having a knowledge of the hazardous character of his business would have done under like circumstances. The business is a dangerous one, and imposed on him the duty of exercising great care and caution. “ If the plaintiff saw that the lumber projected over the end of the car before he attempted the coupling, or if he could • have seen it if he had exercised great care and diligence, which, under the circumstances, it was incumbent upon him to exercise, then he can claim nothing on account of the injury resulting from such projecting lumber, and the injury must be attributed to his own negligence. “If you find the lumber was negligently loaded — that is, in an unusual and dangerous manner — and that this fact was unknown to the plaintiff, then when the plaintiff was ordered to couple the cars he had a right to assume that the car was properly loaded, and act on that assumption; but if before the peril was encountered he discovered the projecting lumber, he should have desisted from any effort to make the coupling, or should have made it in some manner that would not have subjected him to injury, if it was practicable for him to do so; and if by the exercise of proper diligence he might have discovered the projecting lumber before the accident, and in time to avoid it, he cannot recover.” The defendant objected to the last paragraph of the foregoing instructions, and moved that it be withdrawn. The motion was denied, to which ruling of the court the defendant NORTHERN PACIFIC RAILROAD v. EVERETT. Ill Opinion of the Court. excepted. The case was then submitted to the jury, which rendered a verdict for the plaintiff, and awarded him damages in the sum of seven thousand dollars. Judgment in accordance with the verdict was entered on April 25, 1890. The defendant thereupon sued out a writ of error from this court. Mr. James McNaught, Mr. A. II. Garland and Mr. H. J. May for plaintiff in error. Mr. 8. L. Glaspell for defendant in error. Mk. Justice Shikas, after stating the case, delivered the opinion of the court. While it is true that the defendant company excepted to the court’s refusal to give, on the whole evidence, a peremptory charge in favor of the defendant, and has assigned such refusals for error, yet, in the brief of plaintiff in error, the learned counsel have not thought fit to discuss those'assign-ments, but have put their case mainly upon the error alleged to have been committed by the trial court in instructing the jury in the following terms: “ If you find the lumber was negligently loaded — that is, in an unusual manner — and that this fact was unknown to the plaintiff, then when the plaintiff was ordered to couple the cars he had a right to assume that the car was properly loaded, and act on that assumption; but if before the peril was encountered he discovered the projecting lumber, he should have desisted from any effort to make the coupling, or should have made it in some manner that would not have subjected him to injury, if it was practicable for him to do so; and if by the exercise of proper diligence he might have discovered the projecting lumber before the accident, and in time to avoid it, he cannot recover.” The criticism made upon this instruction is that the court erred in stating that Everett had a right to assume that the car was properly loaded, without, at the same time, telling the jury that some portion of the duties of a car inspector were cast upon Everett himself, and that he should have discharged those duties before he undertook the work. 112 OCTOBER TERM, 1893. Opinion of the Court. But though the court did say that Everett had a right to assume that the car was properly loaded and to act on that assumption, yet, at the same time, the court told the jury that if Everett had discovered the projecting lumber before the peril was encountered, he should have desisted from his effort to make the coupling, or should have made it in some manner that would not have subjected him to injury, and that if by the exercise of proper diligence he might have discovered the projecting timber before the accident and in time to avoid it, he could not recover. In effect, the jury were told to find whether the car was or was not properly loaded, and whether the plaintiff, by the exercise of proper diligence, could or could not have discovered the projecting timber before the cars came together and in time to avoid the danger. In other words, the jury were instructed that if the car was negligently loaded, with the sticks of timber extending too far beyond the end of the car, and if the plaintiff could not, in the exercise of proper diligence, have perceived the projecting timber in time to escape, then he was entitled to recover. We are unable to detect any error or unfairness in these instructions. It appeared that Everett was a young and inexperienced man; that this was his first service in attempting to couple a car with a projecting load; the duty he was expected to perforin gave him no time to narrowly inspect the approaching car or to observe its condition. His attention was not called to the projecting timber until he was in the very act of making the coupling, and when his effort to avoid it was too late. He had first to throw the switch to receive the approaching car, and then run ahead and get ready to put the pin in the drawhead. It was shown that there was no pin in the drawhead of the stationary car, and he was obliged to pick one up and put it in place ready to make the coupling. These duties gave him no opportunity to closely scan the car that was in rapid motion behind him. In such circumstances, when the whole transaction is the work of a moment, and when his duty calls upon him to act promptly, a man cannot be expected NORTHERN PACIFIC RAILROAD v. EVERETT. 113 Opinion of the Court. to act with circumspection. At all events, we think that, in view of the fact that the car was improperly loaded, that Everett was new and inexperienced in such work, and that he was required to perform the double duty of throwing the switch and making the coupling, the case was an appropriate one for submission to a jury. In the case of Dunlap v. Northeastern Railroad Co., 130 0. S. 649, 652, we held that the Circuit Court erred in not submitting the question of contributory negligence to the jury, as the conclusion did not follow, as matter of law, that no recovery could be had upon any view which could be properly taken of the facts the evidence tended to establish. And in Richmond and Danville Railroad v. Powers, 149 U. S. 443, we said that where in an action against a common carrier to recover damages for injuries there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because the facts, being undisputed, fair-minded men will honestly draw different conclusions from them. In Sullivan v. N. Y. <& N. H. Railroad, 154 Mass. 524, 527, it was held that the court is not permitted to take from the jury these questions of negligence and to decide them for the jury and for the case, unless the evidence shows that the negligence of the defendant in error was gross and wilful; if it was less than that, then the questions of negligence were for the jury, and are all settled in favor of defendant in error by the verdict. It is not easy, in a subject of this kind, to lay down unbending rules, and conflicting cases can readily be found. But, without pursuing the subject further, we are satisfied that, in the present case, there was no conclusive evidence of a want of due care on the part of Everett in not observing the projecting timber while he was in the discharge of his duty, and while his attention was directed to the work in which he was engaged. The judgment of the court below is Affirmed. vol. cm—8 114 OCTOBER TERM, 1893. Opinion of the Court. MISSOURI, KANSAS AND TEXAS RAILWAY COM^ PANY v. ROBERTS. ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS. No. 230. Argued and submitted January 30,1894. —Decided March 5,1894. The original claim of the State of Kansas to the school-lands in townships 16 and 36 in that State, was rejected by Congress and abandoned by the State, and the right of Congress was conceded to the absolute control of the lands thus embraced and of lands set apart for the use of Indians until such right should be extinguished by appropriate legislation. By the act of July 26, 1866, c. 270, 14 Stat. 289, granting a right of way to the company subsequently known as the Missouri, Kansas and Texas Railway Company across the public lands in the State of Kansas, the title of the lands composing that right of way, including townships 16 and 36, when crossed by it, became vested in that company. The case is stated in the opinion. J/r. Thomas N. Sedgwick, (with whom Aas J/r. James Hagerman on the brief,) for plaintiff in error. Mr. Nelson Case, for defendant in error, submitted on his brief. Mr. Justice Field stated the case and delivered the opinion of the court. This is an action of ejectment to recover possession of certain lands situated in section sixteen (16) of township thirty-four (34) in the county of Labette, State of Kansas, occupied and used by the Missouri, Kansas and Texas Railway Company as part of its right of way, to which it claims title under the act of Congress of July 26, 1866, granting lands to the State of Kansas to aid in the construction of a southern branch of the Union Pacific Railway and Telegraph Company from Fort Riley, Kansas, to Fort Smith, Arkansas. Act of July 26, 1866, c. 270, 14 Stat. 289. MISSOURI, KANSAS & TEXAS R’Y CO. v. ROBERTS. 115 Opinion of the Court. The act declares that, for the purpose of aiding the Union Pacific Railway Company, southern branch, that being a corporation then organized under the laws of Kansas, to construct and operate a railroad from Fort Riley, in that State, or near that military reservation, thence down the valley of the Neosha River to the southern line of the State, with a view to the extension of the same through a portion of the Indian Territory to Fort Smith, Arkansas, there was thereby granted to that State, for the use and benefit of the railroad company, every alternate section of land or parts thereof designated by odd numbers, to the extent of five alternate sections per mile on each side of its road, and not exceeding in all ten sections per mile; provided that in case it should appear that the United States had, when the line of the railroad was definitely located, sold any sections, or any part thereof, granted as aforesaid, or that the right of preemption or homestead settlement had attached to the same, or that it had been reserved by the United States for any purpose whatever, then it should be the duty of the Secretary of the Interior to cause to be selected for the purposes stated, from the public lands of the United States nearest to the sections specified, so much land as should be equal to the amount of the lands sold, reserved, or otherwise appropriated, or to which the right of a homestead settlement or preemption had attached. But to the said act a proviso was attached that any and all lands reserved to the United States by any act of Congress or in any other manner, by competent authority, for the purpose of aiding in any object of internal improvement, or other purposes whatever, were reserved and excepted from the operation of the act, except so far as it might be found necessary to locate the route of said road through such reserved lands, in which case the right of way, two hundred feet in width, was thereby granted, subject to the approval of the President of the United States.. The Union Pacific Railway Company, southern branch, the corporation designated in the act of Congress, was organized by the legislature of Kansas, and incorporated on the 25th ay of September, 1865, under an act providing for the incor- 116 OCTOBER TERM, 1893. Opinion of the Court. poration and regulation of railroad companies; and on the 3d day of February, 1870, its name was changed to that of the Missouri, Kansas and Texas Railway Company, under which designation it is one of the defendants herein. Certain lands within the present State of Kansas were reserved whilst it was still a Territory, and long previously, by the United States, for the use and occupation of the Osage Indians. Such reservation was made by treaty between them and the United States concluded as far back as June 2, 1825, and proclaimed in December following. 7 Stat. (Indian Treaties) 240. From that time, and continuously thereafter, the reserved lands were occupied by those Indians until the treaty ceding the lands, or parts thereof, to the United States, concluded in 1866, and proclaimed in January, 1867, (14 Stat. 687,) except such portion thereof as was appropriated and used as a right of way by the Missouri, Kansas and Texas Railway Company for its road under the grant of July 26, 1866. Prior to June 6, 1870, that company located its railroad through these reserved lands in Kansas, with the approval of the President, and constructed its road in substantial conformity with the act of Congress. The right of way for its road, two hundred feet in width, was granted to the company unconditionally, subject only to such approval. The title to the land for the two hundred feet in width thus granted vested in the company either upon the passage of the act of Congress, -July 26, 1866, or upon the construction of the road, and so far as the present case is concerned, it does not matter which date be taken. The United States had the right to authorize the construction of the road of the Missouri, Kansas and Texas Railway Company through the reservation of the Osage Indians, and to grant absolutely the fee of the two hundred feet as a right of way to the company. Though the lands of the Indians were reserved by treaty for their occupation, the fee was always under the control of the government; and when transferred, without reference to the possession of the lands and without designation of any use of them requiring the delivery of their possession, the transfer was subject MISSOURI, KANSAS & TEXAS R’Y CO. y. ROBERTS. 117 Opinion of the Court. to their right of occupancy; and the manner, time and conditions on which that right should be extinguished were matters for the determination of the government, and not for legal contestation in the courts between private parties. This doctrine is applicable generally to the rights of Indians to lands occupied by them under similar conditions. It was asserted in Buttz v. The Northern Pacific Rail/road Company, 119 U. S. 55, and has never, so far as we are aware, been seriously controverted. In that case, the lands were within what is known as Indian country, where the right of the Indians to the occupancy of their lands was recognized ; and in grants by the government of portions thereof for works of internal improvement, there usually was a stipulation for its extinguishment as rapidly as might be consistent with public policy and the welfare of the Indians. Such a stipulation was given when the grant under consideration in the case cited was made, showing that the government intended the grant to take effect notwithstanding any existing right of occupancy by the Indians, and it was deemed a sufficient expression of its intention to that effect. No such stipulation was made when the grant of the right of way through the Osage reservation was made, but the uses to which the lands were to be applied necessarily involved their possession. That grant was absolute in terms, covering both the fee and possession, and left no rights on the part of the Indians to be the subject of future consideration. Though the law as stated with reference to the power of the government to determine the right of occupancy of the Indians to their lands has always been recognized, it is to be presumed, as stated by this court in the Buttz case, that in its exercise the United States will be governed by such considerations of justice as will control a Christian people in their treatment of an ignorant and dependent race, the court observing, however, that the propriety or justice of their action towards the Indians, with respect to their lands, is a question of governmental policy, and is not a matter open to discussion in a controversy between third parties neither of whom derives title from the Indians. The right of the United States to 118 OCTOBER TERM, 1898. Opinion of the Court. dispose of the fee of land occupied by them, it added, has always been recognized by this court from the foundation of the government. There are, however, certain well-established doctrines controlling the action of the government, which can always be invoked to prevent hasty and improvident action against the Indians. It has always been held that the occupancy of lands set apart by statute or treaty with them for their use cannot be disturbed by claimants under other grants of the government not indicating its intention, either in express terms or by the uses to which the lands are to be applied, to change the possession of the lands. And the setting apart by statute or treaty with them of lands for their occupancy is held to be of itself a withdrawal of their character as public lands, and consequently of the lands from sale and preemption. The right and power of the government to dispose of the fee of the lands in controversy occupied by the Osage Indians, with their rights of occupancy, having been exercised, and a grant of both fee and possession having been made to the Missouri, Kansas and Texas Railway Company, it follows that this company, the plaintiff in error, is entitled to a reversal of the judgment unless the claim of the plaintiff below, the defendant in error here, rests upon tenable grounds, and to them we will now turn our attention. Roberts, the plaintiff below, traces his title to the premises through a patent from the State of Kansas to his grantor, dated May 25, 1871, and by conveyance from him, claiming that they constituted a portion of the lands ceded to the State for school purposes prior to the grant of Congress to the railway company under the act of July 26, 1866. On the 30th of May, 1854, Congress passed an act (c. 59,10 Stat. 277, 289) to organize the Territories of Nebraska and Kansas. The sections of the act from the nineteenth to* the thirty-seventh inclusive, relate to the Territory of Kansas. Section thirty-four (34) provided “ that when the lands in the said Territory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered sixteen and thirty- MISSOURI, KANSAS & TEXAS R’Y CO. v. ROBERTS. 119 Opinion of the Court. six in each township in said Territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in said Territory and in the States and Territories hereafter to be erected out of the same.” If the reservation named was intended as a grant of the sections sixteen (16) and thirty-six (36) to the Territory and to the States to be created out of them, or as a dedication of them for schools, it could only apply to such lands as were public lands, for no other lands in our land system are subdivided into sections, nor could it embrace lands which had been set apart and reserved by statute or treaty with them for the use of the Indians, as was the case with the lands involved in this controversy, as we have already shown. As early as 1839 it was held in Wilcox v. Jackson, 13 Pet. 498: “ That a tract lawfully appropriated to any purpose becomes thereafter severed from the mass of public lands, and that no subsequent law or proclamation will be construed to embrace or operate upon it, although no exception be made of it.” The reservation referred to there was of land for military purposes; and in Leavenworth, Lawrence and Galveston Railroad v. United States, 92 IL S. 733, 745, it was said that this doctrine “ applies with more force to Indian than to military reservations. The latter,” the court observed, “ are the absolute property of the government. In the former other rights are vested. Congress cannot be supposed to grant them in a subsequent law, general in its terms. Specific language, leaving no room for doubt as to the legislative will, is required for such a purpose.” The present constitution of Kansas was proposed by a convention of people in the then Territory, July 29, 1859, with specified boundaries. An ordinance of the convention, preceding it, recites that, “ whereas the Government of the United States is the proprietor of a large portion of the lands included in the limits of the State of Kansas as defined by this constitution; and whereas the State will possess the right to tax said lands for purposes of government and for other purposes : Now therefore, be it ordained by the people of Kansas that the right of the State of Kansas to tax said lands is relin- 120 OCTOBER TERM, 1893. Opinion of the Court. quished forever, and the State of Kansas will not interfere with the title of the United States to such lands nor with any regulation of Congress in relation thereto, nor tax nonresidents higher than residents, Provided always,' that the following conditions be agreed to by Congress,” among which conditions was the following : “ That ‘ sections numbered sixteen (16) and thirty-six (36) in each township in the State, including Indian reservations and trust lands, shall be granted to the State for the exclusive use of common schools; and when either of said sections or any part thereof has been disposed of, other lands of equal value, as nearly contiguous thereto as possible, shall be substituted therefor.’ ” 1 Charters and Constitutions, 629, 630. Congress did not accept the proposed constitution with the conditions designated, but on the contrary, in its act for the admission of the State into the Union, passed on the 29th of January, 1861, c. 20,12 Stat. 126,127, after declaring that the State was admitted on an equal footing with the original States in all respects whatever, and, describing its boundary, added a clause, containing the following provisions among others : “ Provided, That nothing contained in the said constitution respecting the boundary of said State shall be construed to impair the rights of person or property now pertaining to the Indians in said territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, . . . or to affect the authority of the Government of the United States to make any regulation respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent to make if this act had never been passed.” By this provision Congress reserved to itself the right to make all needful regulations for the government of the Indians, and for the use and disposition of their lands and other property. The Indians continued thereafter as previously in possession of the lands, and their rights, whatever their nature and extent, were not extinguished by anything in the act of admission of the State into the Union, nor at the time of the grant of a right of way by the act of July 26, 1866. MISSOURI, KANSAS & TEXAS R’Y CO. v. ROBERTS. 121 Opinion of the Court. Congress went further, and rejected in express terms the claims of the State asserted in the ordinance accompanying the proposed state constitution. By section 3 of the act of admission it declared that the act of admission should not be construed as an assent to all or any of the propositions or claims contained in the ordinance accompanying the proposed constitution or in the resolutions attached, but at the same time it made certain propositions, which it offered to the people of the State for compliance or rejection, and which, if accepted, should be held obligatory upon the United States and upon the State. One of these propositions declared “ that sections numbered sixteen and thirty-six in every township of public lands in said State, and where either of said sections or any part thereof has been sold or otherwise been disposed of, other lands equivalent thereto and as contiguous as may be, shall be granted to said State for the use of schools.” And the several propositions were followed by the declaration that they were offered “ on the condition that the people of Kansas shall provide by an ordinance, irrevocable without the consent of the United States, that said State shall never interfere with the primary disposal of the soil within the same by the United States or with any regulations Congress may find necessary for securing the title in said soil to bona fide purchasers thereof.” These several provisions were accepted by the State of Kansas, by a joint resolution of its legislature, January 20, 1862, in this language: “ That the propositions contained in the act of Congress entitled ‘An act for the admission of Kansas into the Union,’ are hereby accepted, ratified, and confirmed, and shall remain irrevocable, without the consent of the United States; and it is hereby ordained that this State shall never interfere with the primary disposal of the soil within the same by the United States or with any regulations Congress may find necessary for securing the title to said soil, to bona fide purchasers thereof; and no tax shall be imposed on lands belonging to the United States.” It is clear beyond any doubt from this statement of the 129 OCTOBER TERM, 1893. Syllabus. legislation of Congress and of Kansas, and the accepted conditions upon which that State was admitted into the Union, that her original claim to the school sections in townships sixteen and thirty-six of the State was rejected by Congress, and abandoned by the State, and the right of Congress was conceded to the absolute control of the lands thus embraced and of lands set apart for the use of the Indians until such right should be extinguished by appropriate legislation. This rejection by Congress of the original claim of Kansas to the school lands in townships sixteen (16) and thirty-six (36), and its subsequent abandonment by the State itself, and the concession to Congress of the right of absolute control of the lands until such right should be extinguished by appropriate legislation, distinguishes the case materially from that of Wisconsin, which was considered in Beecher v. Wetherby, 95 U. S. 517, and upon which the defendant in error principally relies. No such right was relinquished until after the grant of the right of way under the act of Congress of July 26, 1866, to the Missouri, Kansas and Texas Railway, and the title of the lands composing that right of way had become vested in that company. It follows, therefore, that the Supreme Court of the State, the court below, erred in sustaining the judgment of the inferior court of the State, in favor of the plaintiff in that court, the defendant in error here, and the judgment of the Supreme Court must therefore be Reversed, and the cause rema/nded with directions to take further proceedings in accordance with this opinion. THE MAIN v. WILLIAMS. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOE THE DISTRICT OF MARYLAND. No. 233. Argued January 30, 31, 1894. — Decided March 5, 1894. Under Rev. Stat. § 4283, the liability of a ship owner for the “ freight then pending” extends, (1), to passage money, and, (2), to freight prepaid at the port of departure. THE MAIN v. WILLIAMS. 123 Argument for Appellant. This was an appeal from a decree entered in a proceeding taken to limit the liability of the owners of the steamship Main for a collision with the steamship Montana, in respect to her “ freight pending.” The proceedings were begun by a petition filed by the Nord Deutscher Lloyd, owner of the Main, setting forth the filing of a libel against the steamship for a collision with the steamship Montana, which occurred in the Patapsco River on January 5,1889, wherein was claimed a sum largely in excess of the value of the Main and her freight then pending, and praying for the appointment of appraisers of the interest of petitioner in the ship and her freight for the voyage. The value of the vessel was subsequently fixed by stipulation at $70,000. The appraisers returned the amount of freight pending at $1577.38, which was disputed. The decree of the District Court subsequently fixed the gross amount of freight upon the cargo on board at the time of the collision, prepaid at Bremen, as well as collectable at Baltimore, at $1870.10, and added thereto $5200 gross passage money prepaid at Bremen for the transportation of emigrant passengers for Baltimore, making in all $7070.10. On appeal to the Circuit Court this decree was affirmed, and the owners of the Main appealed to this court. Mr. Thomas W. Hall for appellant. The word “ freight ” has, at most, in the English language, two acceptations. It is used as signifying: first, the burden or thing carried, whether by land or sea; secondly, the hire, price, or compensation paid for the carriage or transportation of goods or merchandise. Worcester’s Dictionary; Webster’s Dictionary; Kirchner v. Venus, 12 Moore, P. C. 390; Scrut-ton on Charter Parties, Art. 136; Nelson’s Shipping, Art. 74; Maclachlan’s Shipping, (4th ed.,) 474; Brittan v. Barnaby, 21 How. 527, 533. Not only do the definitions given of the word “ freight,” whether by lexicographers or by the courts, negative and exclude any idea that the money, commonly called “ fares,” 124 OCTOBER TERM, 1893. Argument for Appellant. paid for the transportation of passengers, is included in or covered by the term 11 freight,” but the courts, when asked, have expressly refused so to extend the meaning of the word. In an action by a broker to recover commissions upon his contract to obtain freight for a ship on a voyage from London to New South Wales, it was held that the passage money of steerage passengers procured by him could not be included in the estimate of the amount of freight, the words “ cargo ” and “ freight ” being terms applicable to goods only. Lewis v. Marshall, 1 Man. & Gr. 729. So, in a suit brought to recover on a policy of insurance valued on freight, where the ship had been lost with a cargo of rice and coolies on board for Mauritius, it was held that the word “ freight ” in the policy did not include the passage money of the coolies. Denoon v. Home & Colonial JL&s. Co., L. R. 7 C. P. 341. The Limited Liability Act was principally taken from the act 26 Geo. 3, and from the Revised Statutes of Maine. While these statutes are in pari materia, it is evident that they are very far from being in totidem verbis. Not only is there a complete departure in the act of Congress from the language of the British statute, but the addition to the simple word “freight” found in the Maine and Massachusetts statutes, of the words “ then pending,” cannot be supposed to be without significance and intention. It is not necessary to quote lexicographers for the meaning of the word “ pending.” The words “ then pending” not only limit the owner’s liability on account of “ freight ” to the amount of freight pending at the time of the collision, but also to the amount of freight depending and contingent upon the termination of the voyage and the delivery of the goods. Otherwise, these words are utterly without meaning and mere surplusage. In its opinion in the case of The City of Norwich, 118 IT. S. 468, 491, construing this very statute and section, this court has said: “ Pending freight is of no value to the ship owner until it is earned, and it is not earned, if earned at all, until the conclusion of the voyage.” The rule of statutory construction, applicable to this case, THE MAIN v. WILLIAMS. 125 Counsel for Appellees. is well settled. Congress must be presumed to have understood the meaning of the words employed in the statute, and to have employed those words in their usual and ordinary sense. It is in this spirit that this court has already construed this section of the Revised Statutes, (§ 4283,) in The City of Norwich, 118 U. S. 468; The Scotland, 118 U. S. 507; and The Great Western, 118 U. S. 520. In these cases the court was pressed to extend the meaning of the word “interest” so as to include any insurance which the owner might have on the ship or freight, in the amount for which he should be held liable. But the court refused to enlarge by construction the meaning of the word “ interest.” In the opinion in the first of the cases referred to, that of The City of Norwich, at page 495, after fully stating the contention in the case, it is said, “ The truth is that the whole question after all comes back to this: whether a limited liability of ship owners is consonant to public policy or not. Congress has declared that it is, and they, and not we, are the judges of that question. Having, as we think, ascertained the true construction of the statute, the point in dispute is really settled. It is a question of construction, and does not require an examination of the general maritime law to determine it. If the rule of the maritime law is different, the statute must prevail.” The appellant submits, with great respect, that the Circuit Court erred accordingly in including in the amount of its decree against the appellant on account of its liability for “ freight then pending ” at the time of the collision : (1) The sum of $847.23, freight on goods, prepaid at the port of Bremen “ under an express stipulation and agreement that said freight money so prepaid was not to be returned, goods lost or not lost;” (2) the sum of $5200, also prepaid at Bremen for the passage money of immigrants who were on board of said ship at the time of the collision. Nr. J. Wilson Leakin and Nr. John II. Thomas, (with whom was Nr. George Leiper Thomas on the brief,) for appellees. 126 OCTOBER TERM, 1893. Opinion of the Court. Mb. Justice Brown, after stating the case, delivered the opinion of the court. This case raises two questions: (1) as to whether, under Revised Statutes, § 4283, the liability of a ship owner for the “ freight then pending ” extends to passage money ; and, (2), whether it extends to freight prepaid at the port of departure. 1. By the common law, as administered both in England and America, the personal liability of the owner of a vessel for damages by collision is the same as in other cases of negligence, and is limited only by the amount of the loss and by his ability to respond. Wilson n. Dickson, 2 B. & Aid. 2; The Dundee, 1 Hagg. 109, 120; The Aline, 1 W. Rob. Ill; The ALellona, 3 W. Rob. 16, 20; The Wild Ranger, Lush. 553, 564; Cope v. Doherty, 4K. & J. 367, 378. The civil law, too, as well as the general law maritime, made no distinction in this particular in favor of ship owners. (Emerigon, Con-trats a la grosse, c. 4, § 11.) Nor did the ancient laws of Oleron or Wisby or the Hanse towns suggest any restriction upon such liability. Indeed, it is difficult, if not impossible, to say when and where the restrictions of the modern law originated. They are found in the Consolato del Mare, which, in two separate chapters, expressly limits the liability of the part owner to the value of his share in the ship. Vinnius, an early Continental writer, states that by the law of the land the owners were not chargeable beyond the value of the ship and the things that were in it. The Hanseatic Ordinance of 1644 also pronounced the goods of the owner discharged from claims for damages by the sale of the ship to pay them. But however the practice originated, it appears/by the end of the seventeenth century, to have become firmly established among the leading maritime nations of Europe, since the French Ordinance of 1681, which has served as a model for most of the modern maritime codes, declares that the owners of the ship shall be answerable for the acts of the master, but shall be discharged therefrom upon relinquishing the ship and freight. (Bk. II, Tit. VIII, Art. 2.) A similar provision in THE MAIN V. WILLIAMS. 127 Opinion of the Court. the Ordinance of Rotterdam of 1721 declared that the owners should not be answerable for any act of the master done without their order, any further than their part of the ship amounted to; and by other articles of the same ordinance it was provided that each part-owner should be liable for the value of his own share. The French Ordinance of 1681 was carried, with slight change of phraseology, into the commercial code of France, and all the other maritime nations whose jurisprudence is founded upon the civil law. (Code de Commerce (French) Art. 216; German Mar. Code, Art. 452; Code of the Netherlands, Art. 321; Belgian Code, Art. 216 ; Italian Code, Art. 311; Russian Code, Art. 649 ; Spanish Code, Art. 621, 622; Portuguese Code, Art. 1345; Brazilian Code, Art. 494; Argentine Code, Art. 1039 ; Chilian Code, Art. 879.) The earliest legislation in England upon the subject is found in the act of 7 Geo. 2, c. 15, passed in 1734, which enacted that no ship owner should be responsible for loss or damage to goods on board the ship by embezzlement of the master or mariners, or for any damage occasioned by them without the privity or knowledge of such owner, further than the value of the ship and her appurtenances, and the freight due or to grow due for the voyage, and if greater damage occurred it should be averaged among those who sustained it. By subsequent acts this limitation of liability was extended to losses in which the master and mariners had no part, to losses by their negligence, and to damage done by collision, while there was an entire exemption of liability for loss or damage by fire or for loss of gold and jewelry, unless its nature and value were disclosed. In all these statutes the liability of the owner was limited to his interest in the ship and freight for the voyage. By section 505 of the Merchants’ Shipping Act of 1854, 16 and 17 Viet. c. 131, freight was deemed to include the value of the carriage of goods, andymwye money. Owing, probably, o some difficulties encountered in determining at what point of time the value of the ship should be taken, and to establish a more uniform and equitable method of limiting the liability of the owner, the Merchant Shipping Act Amendment Act o 1862, extended the provisions of the prior acts to foreign 128 OCTOBER TERM, 1893. Opinion of the Court. as well as British ships, and to cases of loss of life or personal injury, as well as damage or loss to the cargo, and provided that the owners should not be liable in damages in respect of loss of life or personal injury, “ to an aggregate amount exceeding fifteen pounds for each ton of their ship’s tonnage,” nor in respect of loss or damage to ships or their cargoes to an amount exceeding eight pounds per ton. The earliest American legislation upon this subject is found in a statute of Massachusetts passed in 1818, and revised in 1836. This was taken substantially from the statute of George II. It was followed by an act of the legislature of Maine in 1831, copied from the statute of Massachusetts. The attention of Congress does not seem to have been called to the necessity for similar legislation until 1848, when the case of The Lexington, reported under the name of the New Jersey Steam, Navigation Co. v. Merchant^ Bank, 6 How. 344, was decided by this court. In this case the owners of a steamboat, which was burnt on Long Island Sound, were held liable for about $18,000 in coin, which had been shipped upon the steamer and lost. In consequence of the uneasiness produced among ship owners by this decision, and for the purpose of putting American shipping upon an equality with that of other maritime nations, Congress, in 1851, enacted what is commonly known as the Limited Liability Act, which has been incorporated into the Revised Statutes, sections 4282 to 4290, and amended in certain particulars not material to this case, in two subsequent acts. Act of June 26,1884, c. 121, § 18, 23 Stat. 53, 57 ; Act of June 19, 1886, c. 421, § 4, 24 Stat. 79, 80. By section 4283, upon the construption of which this case depends, “ the liability of the owner of any vessel, for any embezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing lost, damage, or forfeiture done, occasioned, or incurred, without the privity, or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.” THE MAIN v. WILLIAMS. 129 Opinion of the Court. By the law maritime the word “ freight ” is used to denote not the thing carried, but the compensation for the carriage of it. Prior to the era of steam navigation, travel by sea was comparatively of such little magnitude that “ freight ” was commonly used to denote compensation for the carriage of goods; yet, in Les Bones Costumes de la Mar, (Black Book, 3 Twiss’ ed. 50, App. Pt. Ill,) it is said “ the term passenger includes all those who ought to pay freight for their persons apart from their merchandise,” and “ every man is called a passenger who pays freight for his own person, and for goods which are not merchandise. And every person who carries less than two quintals ought to pay freight for his own person; ” and in this, one of the most ancient books upon the maritime law, (at least as old as the fourteenth century,) it is also said: “ And in this same manner with regard to any person who may come on board the ship without the consent of the managing owner or of the ship’s clerk, it is in the power of the managing owner to take what freight he pleases.” (Ibid. pp. 173-5.) That passengers’ fares were regarded as the substantial equivalent of freight is evident from the case of Mulloy v. Backer, 5 East, 316, 321, in which Lawrence, Judge, remarks that “ foreign writers consider passage money the same as freight; ” and Lord Ellenborough adds, “ except for the purposes of lien, it seems the same thing.” In this country, as early as 1801, it was said by Judge Peters in the case of the Brig Cynthia, 1 Pet. Adm. 203, 206: “I think the force and true meaning of ‘freight’ has been misconceived. It is a technical expression. It does not always imply that it is the naulum, merces, or fare, for the transportation of goods. It is applied to all rewards, hire, or compensation, paid for the use of ships ; either for an entire voyage, one divided into sections, or engaged by the month, or any period. It is also called freight (and it is to be determined on the like legal principles) in the case of passengers, transported in vessels, for compensation. In fatten, from which much of the English language is derived, it is called fracht, whether it be a compensation for transportation in ships by sea, or carriage by land, either of goods or persons, in gross, or detail,” VOL. CLH—9 130 OCTOBER TERM, 1893. Opinion of the Court. With the introduction of steam vessels, however, the carriage of passengers became at once a most important branch of maritime industry, and modern authorities have generally placed the fare or compensation for the carriage of such passengers upon the same footing as freight for the transportation of goods. While many of the lexicographers, such as Webster, Worcester, and the Imperial Dictionary, still define freight as the sum paid by a party hiring a ship or part of a ship, or for the carriage of goods, in the Century Dictionary it is said to be, in a more general sense, the price paid for the use of a ship, including the transportation of passengers. Similar definitions are given in the law dictionaries of Burrill, Bouvier, and Anderson. See also Benedict’s Admiralty, sections 283, 286, and 288. Our attention has not been called to any express adjudications upon the question involved here, but, so far as the courts have been called upon to consider the subject, they have usually given to the word freight the same definition. Thus in Flint v. Flemyng, 1 B. & Ad. 45, which was an action upon an insurance policy upon freight, it was held that plaintiff could recover freight upon his own goods, Lord Tenterden holding that the word “freight,” as used in policies of insurance, imported the benefit derived from the employment of a ship. So, in Brown v. Harris, 2 Gray, 359, the Supreme Court of Massachusetts, holding that passage money, paid in advance, might be recovered back, upon the breaking up of the voyage, observed that the rule was well settled as to freight for the carriage of goods; that if freight be paid in advance, and the goods not carried for any event, not imputable to the shipper, it is to be repaid, unless (there be a special agreement to the contrary. The court further observed : “ Passage money and freight are governed by the same rules. Indeed, freight, in its more extensive sense, is applied to all compensation for the use of ships, including transportation of passengers.” See also 3 Kent Com. 219. It is true that in the case of Lewis v. Marshall, 7 Man. & Gr. 729, it was said that freight was a term applicable to goods only, but this was said with reference to a contract THE MAIN V. WILLIAMS. 131 Opinion of the Court. which made a distinction between freight upon a cargo and the fare of steerage passengers. The same remark may be made of the case of Denoon v. Home and Colonial Insurance Co., L. R. 7 C. P. 341, in which it was held that the question whether the term “ freight ” in a marine policy includes passage money, must depend upon the circumstances of each particular case, and the context of the particular policy ; and, in that case, under the particular terms of the policy, which made a different rate of insurance upon freight and the transportation of coolies,"it was held that the insurance did not cover the price to be paid for their transportation. The real object of the act in question was to limit the liability of vessel owners to their interest in the adventure ; hence, in assessing the value of the ship, the custom has been to include all that belongs to the ship, and may be presumed to be the property of the owner, not merely the hull, together with the boats, tackle, apparel, and furniture, but all the appurtenances, comprising whatever is on board for the object of the voyage, belonging to the owners, whether such object be warfare, the conveyance of passengers, goods, or the fisheries. The Dundee, 1 Hagg. 109 ; Gale v. Laurie, 5 B. & C. 156, 164. It does not, however, include the cargo, which, presumptively at least, does not belong to the owner of the ship. There is no reason, however, for giving to the word “ freight ” a narrow or technical definition. The fares of the passengers are as much within the reason of the rule as the freight upon the cargo. It would be creating a distinction without a real difference to say that a transatlantic steamer laden with passengers should be wholly exempt from the payment of freight, while another, solely engaged in the carriage of merchandise, should be obliged to pay the entire proceeds of her voyage. The words “ freight pending,” in section 4283, or freight for the voyage,” section 4284, were copied from the English statute of George II, which, in turn, had taken them from the Marine Ordinance of 1681, and the prior Continental codes; but in both cases they were evidently intended to represent the earnings of the voyage, whether from the carnage of passengers or merchandise. If these words were used 132 OCTOBER TERM, 1893. Opinion of the Court. instead of the words “ freight for the voyage,” it would probably more accurately express the intent of the legislature. 2. Nor by the use of the word “pending” was it intended to limit the recovery to the uncollected freight, or such as had not been completely earned at the time of the disaster. As the object of the statute was to curtail the amount that would otherwise be recoverable, it should not be construed to abridge the rights of the owner of the injured vessel to a greater extent than its language will fairly warrant. This is the view taken in Wilson v. Dickson, 2 B. & Aid. 2, 10, in which the court held the words “ freight due or to grow due ” included all the freight for the voyage, whether paid in advance or not. It is worthy of remark in this connection that the codes of the Netherlands, of Chili, and of the Argentine Republic, in the sections above quoted, extend the liability for freight to such as is earned and yet to be earned. The English courts have held, very properly we think, that these statutes should be strictly construed. As observed by Abbott, C. J., in Gale v. Laurie, 5 B. & C. 156, 164: “Their effect, however, is to take away or abridge the right of recovering damages, enjoyed by the subjects of this country at the common law, and there is nothing to require a construction more favorable to the ship owner than the plain meaning of the word imports.” To the same effect are the remarks of Sir Robert Phillimore in The Andalusian, 3 P. D. 182, 190, and in The Northuvibria, L. R. 3 Ad. & Ec. 6, 13. Speaking of this statute, Lord Justice Brett, in Chapman v. Royal Netherlands Na/v. Co., 4 P. D. 157, 184, remarked: “ A statute for the purposes of public policy, derogating to the extent of injustice, from the legal rights of individual parties, should be so construed as to do the least possible injustice. This statute, whenever applied, must derogate from the direct right of the ship owner against the other ship owner. . . . R should be so construed as to derogate as little as is possible consistently with its phraseology, from the otherwise legal rights of the parties.” While, from the universal habit of insuring vessels, the application of the statute probably results but rarely in an LAWTON v. STEELE. 133 Statement of the Case. actual injustice to the owner of the injured vessel, yet, being in derogation of the common law, we think the court should not limit the right of the injured party to a recovery beyond what is necessary to effectuate the purposes of Congress. We are satisfied with the conclusions of the court below upon both of the points involved, and its decree is, therefore, Affirmed. LAWTON v. STEELE. ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK. No. 208. Submitted January 17,1894. —Decided March 5, 1894. It is within the power of a State to preserve from extinction fisheries in waters within its jurisdiction, by prohibiting exhaustive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of the young as well as the mature fish. The provision in the statutes of New York, c. 591 of the Laws of 1880, as amended by c. 317 of the Laws of 1883, that nets set or maintained upon waters of the State, or on the shores of or islands in such waters, in violation of the statutes of the State enacted for the protection of fish, may be summarily destroyed by any person, and that it shall be the duty of certain officers to abate, remove, and forthwith destroy them, and that no action for damages shall lie or be maintained against any person for or on account of such seizure or destruction, is a lawful exercise of the police power of the State, and does not deprive the citizen of his property without due process of law, in violation of the provision of the Constitution of the United States. This was an action at law instituted in the Supreme Court for the county of Jefferson by the plaintiffs in error against the defendant in error, together with Edward L. Sargent and Richard U. Sherman, for the conversion of fifteen hoop and fyke nets of the alleged value of $525. Defendants Steele and Sargent interposed a general denial. Defendant Sherman pleaded that he, with three others, constituted the “ Commissioners of Fisheries” of the State of New York, with power to give directions to game and fish protectors with regard to the enforcement of the game law; that defendant Steele was 134 OCTOBER TERM, 1893. Counsel for Plaintiffs in Error. a game and fish protector, duly appointed by the governor of the State of New York, and that the nets sued for were taken possession of by said Steele, as such game and fish protector, upon the ground that they were maintained upon the waters of the State in violation of existing statutes for the protection of fish and game, and thereby became a public nuisance. The facts were undisputed. The nets were the property of the plaintiffs, and were taken away by the defendant Steele and destroyed. At the time of the taking most of the nets were in the waters of the Black River Bay, being used for fishing purposes, and the residue were upon the shore of that bay, having recently been used for the same purpose. The plaintiffs were fishermen, and the defendant Steele was a state game and fish protector. The taking and destruction of the nets were claimed to have been justifiable under the statutes of the State relating to the protection of game and fish. Plaintiffs claimed there was no justification under the statutes, and if they constituted such justification upon their face, they were unconstitutional. Defendant Sherman was a state fish commissioner. Defendant Sargent was president of the Jefferson County Fish and Game Association. Plaintiffs claimed these defendants to be liable upon the ground that they instigated, incited, or directed the taking and destruction of the nets. Upon trial before a jury a verdict was rendered, subject to the opinion of the court, in favor of the plaintiffs against defendant Steele for the sum of $216, and in favor of defendants Sargent*and Sherman. A motion for a new trial was denied, and judgment entered upon the verdict for $216 damages and $166.09 costs. On appeal to the General Term this judgment was reversed, and a new trial ordered, and a further appeal allowed to the Court of Appeals. On appeal to the Court of Appeals, the order of the General Term granting a new trial was affirmed, and judgment absolute ordered for the defendant. 119 N. Y. 226. Plaintiffs thereupon sued out a writ of error from this court. JZr. Levi H. Brown for plaintiffs in error. LAWTON v. STEELE. 135 Opinion of the Court. Mr. Elon B. Brown tor defendant in error. Mr. Justice Brown, after stating the case, delivered the opinion of the court. This case involves the constitutionality of an act of the legislature of the State of New York known as chapter 591, Laws of New York of 1880, as amended by chapter 317, Laws of New York of 1883, entitled “An act for the appointment of game and fish protectors.” By a subsequent act enacted April 15, 1886, c. 141: “ Section 1. No person shall at any time kill or take from the waters of Henderson Bay or Lake Ontario, within one mile from the shore, between the most westerly point of Pillar Point and the boundary line between the counties of Jefferson and Oswego, . . . any fish of any kind by any device or means whatever otherwise than by hook and line or rod held in hand. But this section shall not apply to or prohibit the catching of minnows for bait, providing the person using nets for that purpose shall not set them, and shall throw back any trout, bass, or any other game fish taken, and keep only chubs, dace, suckers, or shiners. “ Sec. 2. Any person violating any of the provisions of this act shall be guilty of a misdemeanor, and liable to a penalty of $50 for each offence.” By the act of 1880, as amended by the act of 1883: “ Sec. 2. Any net, pound, or other means or device for taking or capturing fish, or whereby they may be taken or captured, set, put, floated, had, found, or maintained, *in or upon any of the waters of this State, or upon the shores of or islands in any of the waters of this State, in violation of any existing or hereafter enacted statutes or laws for the protection of fish, is hereby declared to be, and is, a public nuisance, and may be abated and summarily destroyed by any person, and it shall be the duty of each and every protector aforesaid and of every game constable to seize and remove and forthwith destroy the same, . . . and no action for damages shall lie or be maintained against any person for or on account of any such seizure or destruction.” 136 OCTOBER TERM, 1893. Opinion of the Court. This last section was alleged to be unconstitutional and void for three reasons: 1, as depriving the citizen of his property without due process of law; 2, as being in restraint of the liberty of the citizen; 3, as being an interference with the admiralty and maritime jurisdiction of the United States. The trial court ruled the first of the above propositions in plaintiffs’ favor, and the others against them, and judgment was thereupon entered in favor of the plaintiffs. The constitutionality of the section in question was, however, sustained by the General Term and by the Court of Appeals, upon the ground of its being a lawful exercise of the police power of the State. The extent and limits of what is known as the police power have been a fruitful subject of discussion in the appellate courts of nearly every State in the Union. It is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. Under this power it has been held that the State may order the destruction of a house falling to decay or otherwise endangering the lives of passers-by; the demolition of such as are in the path of a conflagration; the slaughter of diseased cattle; the destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities; the regulation of railways and other means of public conveyance, and of interments in burial grounds; the restriction of objectionable trades to certain localities; the compulsory vaccination 5f children; the confinement of the insane or those afflicted with contagious diseases; the restraint of vagrants, beggars, and habitual drunkards; the suppression of obscene publications and houses of ill fame; and the prohibition of gambling houses and places where intoxicating liquors are sold. Beyond this, however, the State may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. Barbier n. Connolly, 113 U. S. 27; Kidd v. Pearson, 128 LAWTON v. STEELE. 137 Opinion of the Court. U. S. 1. To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts. Thus an act requiring the master of a vessel arriving from a foreign port to report the name, birthplace, and occupation of every passenger, and the owner of such vessel to give a bond for every passenger so reported, conditioned to indemnify the State against any expense for the support of the persons named for four years thereafter, was held by this court to be indefensible as an exercise of the police power, and to be void as interfering with the right of Congress to regulate commerce with foreign nations. Henderson v. New York, 92 U. S. 259. A similar statute of California, requiring a bond for certain classes of passengers described, among which were “lewd and debauched women,” was also held to show very clearly that the purpose was to extort money from a large class of passengers, or to prevent their immigration to California altogether, and was held to invade the right of Congress. Chy Lung v. Freeman, 92 U. S. 275. So in Railroad Co. v. Husen, 95 U. S. 465, a statute of Missouri which prohibited the driving of Texas, Mexican, or Indian cattle into the State between certain dates in each year was held to be in conflict with the commerce clause of,the Constitution, and not a legitimate exercise of the police powers of the State, though it was admitted that the State might for its self-protection prevent persons or animals having contagious diseases from entering its territory. In Rockwell v. Nearing, 35 N. Y. 302, an act of the legislature of New York, which authorized the seizure and sale without judicial process of all animals found trespassing within 138 OCTOBER TERM, 1893. Opinion of the Court. private enclosures, was held to be obnoxious to the constitutional provision that no person should be deprived of his property without due process of law. See also Austin v. Murray, 16 Pick. 121; Watertown v. Mayo, 109 Mass. 315; The Slaughter-house Cases, 16 Wall. 36; In re Cheesebrough, 78 N. 232; Brown v. Perkins, 12 Gray, 89. In all these cases the acts were held to be invalid as involving an unnecessary invasion of the rights of property, and a practical inhibition of certain occupations harmless in themselves, and which might be carried on without detriment to the public interests. The preservation of game and fish, however, has always been treated as within the proper domain of the police power, and laws limiting the season within which birds and wild animals may be killed or exposed for sale, and prescribing the time and manner in which fish may be caught, have been repeatedly upheld by the courts. Thus in Smith v. Maryland, 18 How. 71, it was held that the State had a right to protect its fisheries in Chesapeake Bay by making it unlawful to take or capture oysters with a scoop or drag, and to inflict the penalty of forfeiture upon the vessel employed in this pursuit. The avowed object of the act was to prevent the destruction of the oysters by the use of particular instruments in taking them. “ It does not touch,” said the court, “ the subject of the common liberty of taking oysters save for the "purpose of guarding it from injury to whom it may belong and by whomsoever it may be enjoyed.” It was held that the right of forfeiture existed, even though the vessel was enrolled for the coasting trade under the act of Congress. So in Smith n. Levinus, 8 K. Y. 472, a similar act was held to be valid, although it vested certain legislative powers in boards of supervisors, authorizing them to make laws for the protection of shell and other fish. In State v. Roberts, 59 N. H. £56, which was an indictment for taking fish out of navigable waters out of the season prescribed by statute, it was said by the court: “ At common law the right of fishing in navigable waters was common to all. The taking and selling of certain kinds of fish and game at certain seasons of the year tended to the destruction of the privilege or right by the destruction conse- LAWTON v. STEELE. 139 Opinion of the Court. quent upon the unrestrained exercise of the right. This is regarded as injurious to the community, and, therefore, it is within the authority of the legislature to impose restriction and limitation upon the time and manner of taking fish and game, considered valuable as articles of food or merchandise. For this purpose fish and game laws are enacted. The power to enact such laws has long been exercised, and so beneficially for the public that it ought not now to be called into question.” Commonwealth v. Chapin, 5 Pick. 199 ; McCready v. Virginia, 94 U. S. 391; Vinton v. Welsh, 9 Pick. 87, 92; Commonwealth v. Essex County, 13 Gray, 239, 248; Phelps v. Pacey, 60 N. Y. 10; Holyoke Co. v. Lyman, 15 Wall. 500; Gentile v. State, 29 Indiana, 409; State v. Lewis, 33 N. E. Rep. 1024. As the waters referred to in the act are unquestionably within the jurisdiction of the State of New York, there can be no valid objection to a law regulating the manner in which fishing in these waters shall be carried on. Hooker v. Cummings, 20 Johns. 91. The duty of preserving the fisheries of a State from extinction, by prohibiting exhaustive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of the young as well as the mature fish, is as clear as its power to secure to its citizens, as far as possible, a supply of any other wholesome food. The main, and only real difficulty connected with the act in question is in its declaration that any net, etc., maintained in violation of any law for the protection of fisheries, is to be treated as a public nuisance, “ and may be abated and summarily destroyed by any person, and it shall be the duty of each and every protector aforesaid and every game constable to seize, remove, and forthwith destroy the same.” The legislature, however, undoubtedly possessed the power not only to prohibit fishing by nets in these waters, but to make it a criminal offence, and to take such measures as were reasonable and necessary to prevent such offences in the future. It certainly could not do this more effectually than by destroying the means of the offence. If the nets were being used in a manner detrimental to the interests of the public, we think it was 140 OCTOBER TERM, 1893. Opinion of the Court. within the power of the legislature to declare them, to be nuisances, and to authorize the officers of the State to abate them. Hart v. Albany, 9 Wend. 571; Meeker v. Van Rensselaer, 15 Wend. 397. An act of the legislature which has for its object the preservation of the public interests against the illegal depredations of private individuals ought to be sustained, unless it is plainly violative of the Constitution, or subversive of private rights. In this case there can be no doubt of the right of the legislature to authorize judicial proceedings to be taken for the condemnation of the nets in question, and their sale or destruction by process of law. Congress has assumed this power in a large number of cases, by authorizing the condemnation of property which has been made use of for the purpose of defrauding the revenue. Examples of this are vessels illegally registered or owned, or employed in smuggling or other illegal traffic; distilleries or breweries illegally carried on or operated, and buildings standing upon or near the boundary line between the United States and another country, and used as depots for smuggling goods. In all these cases, however, the forfeiture was decreed by judicial proceeding. But where the property is of little value, and its use for the illegal purpose is clear, the legislature may declare it to be a nuisance, and subject to summary abatement. Instances of this are the power to kill diseased cattle; to pull down houses in the path of conflagrations ; the destruction of decayed fruit or fish or unwholesome meats, or infected clothing, obscene books or pictures, or instruments which can only be used for illegal purposes. While the legislature has no right arbitrarily to declare that to be a nuisance which is clearly not so, a good deal must be left to its discretion in that regard, and if the object to be accomplished is conducive to the public interests, it may exercise a large liberty of choice in the means employed. Newark Railway v. Hunt, 50 N. J. Law, 308; Blaster v. Miller, 10 Hun, 435 ; Mouses Case, 12 Rep. 63; Stone n. New York, 25 Wend. 157, 173; Am. PrintWorks v. Lawrence, 21 N. J. Law, 248; 23 N. J. Law, 590. It is not easy to draw the line between cases where property illegally used may be destroyed summarily and where judicial LAWTON v. STEELE. 141 Opinion of the Court. proceedings are necessary for its condemnation. If the property were of great value, as, for instance, if it were a vessel employed for smuggling or other illegal purposes, it would be putting a dangerous power in the hands of a custom officer to permit him to sell or destroy it as a public nuisance, and the owner would have good reason to complain of such act, as depriving him of his property without due process of law. But where the property is of trifling value, and its destruction is necessary to effect the object of a certain statute, we think it is within the power of the legislature to order its summary abatement. For instance, if the legislature should prohibit the killing of fish by explosive shells, and should order the cartridges so used to be destroyed, it would seem like belittling the dignity of the judiciary to require such destruction to be preceded by a solemn condemnation in a court of justice. The same remark might be made of the cards, chips, and dice of a gambling room. The value of the nets in question was but $15 apiece. The cost of condemning one, (and the use of one is as illegal as the use of a dozen,) by judicial proceedings, would largely exceed the value of the net, and doubtless the State would, in many cases, be deterred from executing the law by the expense. They could only be removed from the water with difficulty, and were liable to injury in the process of removal. The object of the law is undoubtedly a beneficent one, and the State ought not to be hampered in its enforcement by the application of constitutional provisions which are intended for the protection of substantial rights of property. It is evident that the efficacy of this statute would be very seriously impaired by requiring every net illegally used to be carefully taken from the water, carried before a court or magistrate, notice of the seizure to be given by publication, and regular judicial proceedings to be instituted for its condemnation. There is not a State in the Union which has not a constitutional provision entitling persons charged with crime to a trial by jury, and yet from time immemorial the practice has been to try persons charged with petty offences before a police magistrate, who not only passes upon the question of guilt, 142 OCTOBER TERM, 1893. Opinion of the Court. but metes out the proper punishment. This has never been treated as an infraction of the Constitution, though technically a person may in this way be deprived of his liberty without the intervention of a jury. Callan v. Wilson, 127 IT. S. 540, and cases cited. So the summary abatement of nuisances without judicial process or proceeding was well known to the common law long prior to the adoption of the Constitution, and it has never been supposed that the constitutional provision in question in this case was intended to interfere with the established principles in that regard. Nor is a person whose property is seized under the act in question without his legal remedy. If in fact his property has been used in violation of the act, he has no just reason to complain; if not, he may replevy his nets from the officer seizing them, or, if they have been destroyed, may have his action for their value. In such cases the burden would be upon the defendant to prove a justification under the statute. As was said by the Supreme Court of New Jersey in a similar case, Am. Print Works v. Lawrence, 21 N. J. Law, 248, 259: “ The party is not, in point of fact, deprived of a trial by jury. The evidence necessary to sustain the defence is changed. Even if the party were deprived of a trial by jury, the statute is not, therefore, necessarily unconstitutional.” Indeed, it is scarcely possible that any actual injustice could be done in the practical administration of the act. It is said, however, that the nets are not in themselves a nuisance, but are perfectly lawful acts of manufacture, and are ordinarily used for a lawful purpose. This is, however, by no means a conclusive answer. Many articles, such, for instance, as cards, dice, and other articles used for gambling purposes, are perfectly harmless in themselves, but may become nuisances by being put to* an illegal use, and in such cases fall within the ban of the law and may be summarily destroyed. It is true that this rule does not always follow from the illegal use of a harmless article. A house may not be torn down because it is put to an illegal use, since it may be as readily used for a lawful purpose, {Ely v. Supervisors, 36 N. Y. 297,) but where minor articles of personal property are devoted to such LAWTON v. STEELE. 143 Opinion of the Court. use the fact that they may be used for a lawful purpose would not deprive the legislature of the power to destroy them. The power of the legislature to declare that which is perfectly innocent in itself to be unlawful is beyond question, {People v. West, 106 N. Y. 293,) and in such case the legislature may annex to the prohibited act all the incidents of a criminal offence, including the destruction of property denounced by it as a public nuisance. In Weller v. Snover, 42 N. J. Law, 341, it was held that a fish warden for a county, appointed by the governor, had the right, under an act of the legislature, to enter upon land and destroy a fish basket constructed in violation of the statute, together with the materials of which it was composed, so that it might not again be used. It was stated in that case that “ after a statute has declared an invasion of a public right to be a nuisance it may be abated by the destruction of the object used to effect it. The person who, with actual or constructive notice of the law, sets up such nuisance cannot sue the officer whose duty it has been made by the statute to execute its provisions.” So in Williams v. Blackwall, 2 H. & C. 33, the right to take possession of or destroy any engine placed or used for catching salmon in contravention of law was held to extend to all persons, and was not limited to conservators or officers appointed under the act. It is true there are several cases of a contrary purport. Some of these cases, however, may be explained upon the ground that the property seized was of considerable value — leek, v. Anderson, 57 California, 251, boats as well as nets; Bunn v. Burleigh^ 62 Maine, 24, teams and supplies in lumbering; King v. Hayes, 80 Maine, 206, a horse; in others the court seems to have taken a more technical view of the law than the necessities of the case or am adequate protection of the owner required. Lowry v. Rainwater, 70 Missouri, 152; ^te v. Robbins, 124 Indiana, 308; Ridgeway v. West, 60 Indiana, 371. Upon the whole, we agree with the Court of Appeals in olding this act to be constitutional, and the judgment of the Supreme Court is, therefore, Affirmed. 144 OCTOBER TERM, 1893. Dissenting Opinion: Fuller, C. J., Field, Brewer, JJ. Mr. Chief Justice Fuller (with whom concurred Mr. Justice Field and Mr. J ustice Brewer) dissenting. In my opinion the legislation in question, so far as it authorizes the summary destruction of fishing nets and prohibits any action for damages on account of such destruction, is unconstitutional. Fishing nets are in themselves articles of property entitled to the protection of the law, and I am unwilling to concede to the legislature of a State the power to declare them public nuisances, even when put to use in a manner forbidden by statute, and on that ground to justify their abatement by seizure and destruction without process, notice, or the observance of any judicial form. The police power rests upon necessity and the right of selfprotection, but private property cannot be arbitrarily invaded under the mere guise of police regulation, nor forfeited for the alleged violation of law bv its owner, nor destroyed by way of penalty inflicted upon him, without opportunity to be heard. It is not doubted that the abatement of a nuisance must be limited to the necessity of the occasion, and, as the illegal use of fishing nets would be terminated by their withdrawal from the water and the public be fully protected by their detention, the lack of necessity for the arbitrary proceedings prescribed seems to me too obvious to be ignored. Nor do I perceive that the difficulty which may attend their removal, the liability to injury in the process, and their comparatively small value ordinarily, affect the principle, or tend to show their summary destruction to be reasonably essential to the suppression of the illegal use. Indeed, I think that that argument is to be deprecated as weakening the importance of the preservation, without impairment, in ever so slight a degree, of constitutional guaranties. I am, therefore, constrained to withhold my assent to the judgment just announced, and am authorized to say that Mr. Justice Field and Mr. Justice Brewer concur in this dissent. SOUTHERN PACIFIC COMPANY v. SELEY. 145 Statement of the Case. SOUTHERN PACIFIC COMPANY v. SELEY. ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH. No. 119. Argued November 27,1893.—Decided March 5,1894. After serving as a brakeman in the employ of a railroad company, S. became a conductor on the same railroad, and as such had been engaged at a depot yard at one of its stations at least once a week, and usually oftener, for seven years. While making up his train at that yard, preparatory to running out with it, after the chief brakeman had failed in an attempt to make a coupling he tried to make it. There was an unblocked frog at the switch where the car was. He put his foot into this frog, and was told by the brakeman that he would be caught if ha left it there. He took it out, but put it in again, and, being unable to extricate it when the cars came together, he was thrown down and killed. In an action brought by his administratrix against the railroad company to recover damages, held, that S. must be assumed to have entered and continued in the employ of the railroad company with full knowledge of any danger which might arise from the use of unblocked frogs; that he was guilty of contributory negligence; and that the company was entitled to a peremptory instruction in its favor. This was an action in the District Court for the First Judicial District of the Territory of Utah against the Southern Pacific Company, a railroad corporation, brought by Isabella Seley, administratrix of William B. Seley, deceased, to recover damages for the death of her husband caused by the alleged negligence of the defendant company. The Southern Pacific Company was incorporated under the laws of the State of Kentucky, and is engaged in operating the Central Pacific Railroad, running between the city of Ogden in Utah and a point in California. Seley was, for seven years prior to his death, a conductor upon freight trains on the lines of the Southern Pacific Company and of its predecessor, the Central Pacific Railroad Company, and before that time had been a brakeman in the same employ. In the course of his business he was engaged in the depot yard at Humboldt Wells at least once a week and usually oftener. VOL. CLII—10 146 OCTOBER TERM, 1893. Argument for Plaintiff in Error. The accident in which Seley met his death took place on July 7, 1887, at this depot yard, while he was making up his train, preparatory to running out with it. The chief brakeman, named Hardy, had met with some difficulty in coupling a car, and had twice failed to make the coupling. The other brakeman had also failed in an attempt to couple the car. Seley undertook to effect the coupling. His first effort was a failure, the link slipping. At this time, Hardy testifies that he warned Seley to take his foot out of the frog — that he would be caught. Seley made a second attempt, and, while endeavoring to make the coupling, again put his foot into the frog, from which he was unable to extricate it when the cars came together. He was thrown down by the break-beam, the wheel passed over him, and he was instantly killed. At the close of the plaintiff’s evidence, the defendant moved for a nonsuit. This was refused and an exception was allowed. At the close of the entire evidence, the defendant asked the court to instruct the jury to find a verdict for the defendant. This was refused, as were likewise certain instructions prayed for. A verdict for $7500 was rendered in favor of the plaintiff, on which judgment was entered, a motion for a new trial having been overruled. This judgment was affirmed by the Supreme Court of the Territory, to whose judgment a writ of error was brought to this court. J/>. Maxwell Evarts, for plaintiff in error, cited: Washington c& Georgetown Railroad v. McDade, 135 U. S. 554; Tuttle v. Det/roit c& Milwaukee Railway, 122 U. S. 189; Kohn v. McNulta, 147 U. S. 238; Bunt v. Sierra Butte Gold Mining Co., 138 U. S. 483; O'Rorke v. Union Pacific Railway, 22 Fed. Rep. 189; The Maharajah, 49 Fed. Rep. Ill; Naylor v. New York Central Railroad, 33 Fed. Rep. 801; The Luckenbach, 53 Fed. Rep. 662; Appel v. Buffalo, New York <&c. Railroad, 111 N. Y. 550; Chicago, Rock Island & Pacific Railway v. Lonergan, 118 Illinois, 41; Williams v. Central Railroad, 43 Iowa, 396; Rush v. Missouri Pacific Railway, 36 Kansas, 129; Wilson v. Winona &c. Railroad, 37 Min- SOUTHERN PACIFIC COMPANY v. SELEY. 147 Argument for Defendant in Error. nesota, 326; Lake Shore dec. Railway v. McCormick, 74 Indiana, 440; Haas v. Buffalo, N. Y. & P. Railroad, 40 Hun, 145; Woodley v. Metropolitan District Railway, 2 Ex. D. 384; Walsh v. Whiteley, 21 Q. B. D. 371; Thomas v. Quartermaine, 18 Q. B. D. 685; Cunningham v. Chicago, Milwaukee dec. Railroad, 17 Fed. Rep. 882; Railroad Co. v. Jones, 95 U. S. 439; Randall v. Balt. de Ohio Railroad, 109 U. S. 478; The Serapis, 51 Fed. Rep. 91; Townsend v. Langles, 41 Fed. Rep. 919; Schroeder v. Michigan Car Co., 56 Michigan, 132; Sweeney v. Berlin de Jones Envelope Co., 101 N. Y. 520. Mr. A. A. Hoeli/ng, Jr., and Mr. J. M. Wilson, (with whom was Mr. Samuel Shelldbarger on the brief,) for defendant in error. I. It was negligence on the part of the plaintiff in error to provide, in the construction, such a frog. The deceased did not take the risk of injury because thereof, and was not chargeable with notice of danger, nor with negligence, in making the coupling at the place, and under the circumstances, as shown in this record. There is no evidence that plaintiff in error ever used blocked frogs on its road, but there is evidence that it used at that time a cast-iron frog, in which the space between the rails at the apex of the frog is filled with cast iron. In this frog a man’s foot could not get caught. It is also in evidence that the Union Pacific and some other railroads used blocked frogs, and that they have been used for at least ten or twelve years in this country; that blocking the frog would make such an accident as the present almost impossible, and that it is more generally the custom to block frogs in yards (such as this, where the accident occurred) than on the main line. It is important here to note the difference between a blocked rog and a frog that is blocked. A blocked frog is one made 0 iron, and so constructed that the space is filled with iron; w ile a frog blocked is one in which there is no iron in the space, but that space is filled with wood — the object being the 148 OCTOBER TERM, 1893. Argument for Defendant in Error. A same in both cases, to prevent injuries by catching the foot between the rails; and on this road the blocked frog, that is, one in wThich the space is filled with iron, was used, and also the open frog which was not blocked, by inserting the wood, to prevent injury, as above. This is mentioned here as throwing light not only upon the question under immediate consideration, but also upon the question of notice hereafter to be considered. The court below, in passing upon this same question of the risks assumed by the deceased in entering the employ of the defendant, cites, with approval, the case of Patterson v. Pittsburgh & Connellsville Bailroad, 76 Penn. St. 389, 393. In that case, the court, per Gordon, J., says: “ If the instrumentality by which he is required to perform his service is so obviously and immediately dangerous that a man of common prudence would refuse to use it, the master cannot be held liable for the resulting damage. In such case, the law adjudges the servant guilty of concurrent negligence, and will refuse him that aid to which he otherwise would be entitled. But where the servant, in obedience to the requirement of the master, incurs the risk of machinery which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonably probable it may be safely used by extraordinary caution or skill, the rule is different. In such case, the master is liable for a resulting accident.” See also Conroy v. Vulcan Iron Works, 62 Missouri, 35; Pennsylvania Co. v. Boy, 102 IT. S. 451; Lawless v. Connecticut Biver Bailroad, 136 Mass. 1. II. The employer is bound to provide suitable physical means and agencies for the conduct of his business. The employe does not take the hazard of any negligence of the employer in that regard. The employe only takes the risks of the dangers which ordinarily attend, or are incident to, the business in which he engages, and which cannot be avoided by extreme diligence and the highest skill, and what are the ordinary risks depends upon the special circumstances of the particular case. Bough v. Bailway Co., 100 IT. S. 213; Wabash Bailway n. McDaniels, 107 IT. S. 454; Snow n. Housatonic Bailroad, 8 Allen, 441; & C. 85 Am. Dec, 720; Cayzer v. SOUTHERN PACIFIC COMPANY v. SELEY. 149 Argument for Defendant in Error. Taylor, 10 Gray, 274 ; N. C. 69 Am. Dec. 317 ; Seaver v. Boston & Maine Railroad, 14 Gray, 466; Bartonshill Coal Co. n. Reid, 3 Macq. App. Cas. 266. III. Where, in an action against a common carrier to recover damages for injuries, there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and is to be settled by a jury ; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them. Richmond <& Danville Railroad v. Powers, 149 U. S. 43 ; Washington <& Georgetown Railroad n. McDade, 135 U. S. 554 ; Hough v. Railway Co., 100 U. S. 213 ; Delaware, Lackawanna &c. Railroad v. Converse, 139 U. S. 469 ; Railroad Co. v. Stout, 17 Wall. 657 ; 2 Thompson on Negligence, 1178; Gates v. Pennsylvania Railroad, 154 Penn. St. 566. The court is not permitted to take from the jury these questions of negligence, and to decide them, unless the evidence shows that the negligence of the defendant in error was gross and wilful. If it was less than that, then the questions of negligence were for the jury, and are all settled in favor of defendant in error by the verdict. It is, we submit, impossible fairly to contend, in the present case, that any of the alleged contributory negligence of the defendant in error was of this kind. Therefore, the verdict has settled, in favor of the defendant in error, both the question of the negligence of plaintiff in error, and the absence of contributory negligence on the part of the defendant in error. In this case it cannot be conclusively presumed that the defendant knew the dangerous character of these frogs. The most that can be said of it is that the inference may be drawn that he did know it from the length of his service on the road as an employé; and yet, from the nature of that service, reasonable men might also infer that in discharging his duties e would not observe matters that appertained wholly to the construction of the road; that his attention was directed to 150 OCTOBER TERM, 1893. Opinion of the Court. the movement of his train. Reasonable men might conclude that he had not such knowledge of the conditions at this place as to charge him with neglect, and especially under the circumstances, where there was difficulty in making this particular coupling, three efforts having been made by brake-men and one by himself before this injury occurred, that it was not negligence for him in his effort to make this coupling under such circumstances to fail to observe this particular frog, which happened to be at the very place where this duty necessarily was performed. It was, therefore, preeminently a case to be submitted to the jury, and the finding of the jury on that subject under the authorities above alluded to will not be reviewed by the court. Mr. Justice Shiras, after stating the case, delivered the opinion of the court. The theory upon which the plaintiff proceeded in the court below was that Seley lost his life by reason of the negligence of the defendant, a railroad company, in using in its switches what is called an “ unblocked frog.” A frog, in railroad parlance, is a section of a rail, or of several rails combined, at a point where two railways cross, or at the point of a switch from a line to a siding or to another line, and» its function is to enable a car or train to be turned from one track to another. In a blocked frog the point of space between the rails, at the point where the car is switched from one track to another, is filled with wood or other material, so that the foot will not be held. There is a form of cast-iron frog, in which the space between the rails at the apex of the frog is filled with cast iron. But the evidence clearly was that the defendant company used the unblocked frog, although at some places the cast-iron frog was used. The weight of the evidence, as we read it in the bill of exceptions, plainly was that on the other great railroad systems of the West the unblocked frog was generally used. There was evidence tending to show that the unblocked frog is the better form — that the blocked frog is liable to be broken, get out of place, and throw the train from the track. SOUTHERN PACIFIC COMPANY v. SELEY. 151 Opinion of the Court. In this disputable state of the facts the defendants asked the court to charge the jury as follows: “ The jury are instructed that if they find from the evidence that the railroad companies used both the blocked and the unblocked frog, and that it is questionable which is the safest or most suitable for the business of the roads, then the use of the unblocked frog is not negligence, and the jury are instructed not to impute the same as negligence to the defendant, and they should find for the defendant.” This prayer should have been given by the court. In the case of Schroeder v. Michigan Car Co., 56 Mich. 132, 133, the Supreme Court of Michigan, per Cooley, J., said: “From this statement of facts it will appear that if the defendant has been guilty of any negligence contributing to the injury, it is to be found in the fact that a machine is made use of which is not so constructed as to guard as well as it might against similar accidents. Had the machine been constructed with a shield over the cog wheels, this particular accident would probably not have occurred; and any one whose attention was drawn to the danger of such accidents would probably have perceived the desirability of such a shield. But the machine is shown by the evidence to be manufactured and sold by a prominent and reputable house, and much used throughout the country, and the defendant cannot be said to be exceptionally wanting in prudence in purchasing and making use of it. Such danger as would result from making use of it was perfectly apparent, and would seem to be easily avoided.” Walsh v. Whiteley, 21 Q. B. D. 371, 378, 379, was a case where the plaintiff was employed in defendant’s mill, and it was his duty to put a band upon a vertical wheel while in motion. The disk of the wheel was not solid throughout, but had a number of holes in it. While putting the band on the wheel the plaintiff’s thumb slipped into one of the holes, and was cut off. It appeared on the trial that these wheels were made sometimes with and sometimes without holes. The plaintiff’s witnesses stated generally that the wheels with holes were dangerous. The plaintiff never made any complaint to his 152 OCTOBER TERM, 1893. Opinion of the Court. employers. He recovered a verdict, but the judgment was, on appeal, reversed, Lindley and Lopez, J J., saying: “Is there any evidence of the machine being defective, even in the abstract ? It was perfect in all respects. It was not impaired by use. The only suggestion is that the wheel, which might have been solid, had holes in it; and that, if the wheel had been solid, the plaintiff could not have put his thumb where he did, and the accident would not have happened. . . . But the plaintiff had used the same kind of machine for thirteen years, and had sustained no injury. ... In these circumstances we can see no evidence of any defect in the condition of the machine, even apart from the negligence of the employer. It may be that a solid wheel would have been safer, but it would be placing an intolerable burden on employers to hold that they are to adopt every fresh improvement in machinery. ... It seems to us that in this case there is not a particle of evidence of any defect arising from the negligence of the employer. It was a machine generally used, used by the plaintiff for thirteen years without any complaint or mischief arising.” Sweeny v. Berlin de Jones Manufacturing Co., 101 N. Y. 520, 524, was a case where the plaintiff was injured by some sort of a press worked by steam. It was old-fashioned and with no modern improvements. The court said: “ He knew as much about it and the risk attending its use as the master. The defendant could not be required to provide himself with other machinery or with new appliances, nor to elect between the expense of doing so and the imposition of damages for injuries resulting to servants from the mere use of an older or different pattern. In the absence of defective construction, or of negligence or want of care in the reparation of machinery furnished by him, the master incurs no liability from its use. The general rule is that the servant accepts the service subject to the risks incidental to it, and where the machinery and implements of the employer’s business are at that time of a certain kind or condition and the servant knows it, he can make no claim upon the master to furnish other or different safeguards.” Hodgkins v. Eastern Railroad, 119 Mass. 419, is,to the same effect. SOUTHERN PACIFIC COMPANY v. SELEY. 153 Opinion of the Court. Our own cases speak the same language. Randall v. Baltimore & Ohio Railroad, 109 IT. S. 478, 482, was a case where the plaintiff was injured in the course of his employment as a brakeman. It appeared on the trial that he was hurt, while unlocking a ground switch, by a train other than his own. It was alleged that the defendant company was negligent in that it did not have an upright switch instead of a ground switch, as the former was safer. This court, affirming the judgment of the court below, said : “ There was no sufficient evidence of any negligence on the part of the railroad company in the construction and arrangement of the switch to warrant a verdict for the plaintiff on that ground. The testimony of the plaintiff and his witness was too slight. A railroad yard, where trains are made up, necessarily has a great number of tracks and switches close to one another, and any one who enters the service of a railroad company, in any work connected with the making up or moving of trains, assumes the risk of that condition of things. . . . The switch was of a form in common use, and was, to say the least, quite as fit for its place and purpose as an upright switch would have been.” In Washington cfe Georgetown Railroad v. McDade, 135 U. 8. 554, 570, this court used the following language: “Neither individuals nor corporations are bound, as employers, to insure the absolute safety of the machinery or mechanical appliances which they provide for the use of their employes. Nor are they bound to supply the best and safest or newest of these appliances for the purpose of securing the safety of those who are thus employed.” In the case of Tuttle v. Detroit <& Milwaukee Railway, 122 U. S. 189, 194, it was claimed that a brakeman, who was injured in coupling cars, had a right to go to the jury on the question whether the defendant company was not negligent in having too sharp a curve in its road where it entered a yard; hut this court, by Mr. Justice Bradley, said: “Although it appears that the curve was a very sharp one at the place where the accident happened, yet we do not think that public policy requires the courts to lay down any rule of law to re- 154 OCTOBER TERM, 1893. Opinion of the Court. strict a railroad company as to the curves it shall use in its freight depots and yards, where the safety of passengers and the public is not involved ; much less that it should be left to the varying and uncertain opinions of juries to determine such an engineering question. . . . It is for those who enter into such employment to exercise all that care and caution which the perils of the business in each case demand. The perils in the present case, arising from the sharpness of the curve, were seen and known. They were not like the defects of unsafe machinery which the employer has neglected to repair, and which his employés have reason to suppose is in proper wTorking condition. Everything was open and visible, and the deceased had only to use his senses and his faculties to avoid the dangers to which he was exposed. One of these dangers was that of the draw bars slipping and passing each other when the cars were brought together. It was his duty to look out for this and avoid it. The danger existed only on the inside of the curve. This must have been known to him. It will be presumed that, as an experienced brakeman, he did know it, for it is one of those things which happen, in the course of his employment, under such conditions as existed here.” It was not pretended in the present case that the frog in which Seley had put his foot was defective or out of repair. The contention solely is that there is another form of frog, not much used, and which, if used by the defendant, might have prevented the accident. In view of these cases and many others of similar import, which it is unnecessary to cite, we think it is plain that the defendant was entitled not merely to the instruction prayed for, if the case went to the jury, but that, upon the whole evidence, the prayer for a peremptory instruction in the defendant’s favor ought to have been granted. The evidence showed that Seley had been in the employ of the defendant for several years as brakeman and as conductor of freight trains ; that his duty brought him frequently into the yard in question to make up his trains; that he necessarily knew of the form of frog there in use ; and it is not shown SOUTHERN PACIFIC COMPANY v. SELEY. 155 Opinion of the Court. that he ever complained to his employers of the character of frogs used by them. He must, therefore, be assumed to have entered and continued in the employ of the defendant with full knowledge of the dangers asserted to arise out of the use of unblocked frogs. Appel v. Buffalo, N. Y. dee. Railroad, 111 N. Y. 550, was a case where the plaintiff’s intestate was a brakeman employed in coupling cars in the yards of the defendant at Buffalo, N. Y., and while so engaged his foot was caught in an un-blocked frog, and he was run over and killed ; and the Court of Appeals held that, “ in accepting and continuing in the employment, the deceased assumed the hazard of all known and obvious dangers, and that he was chargeable with notice of the difficulty in removing the foot when caught in the frog, and of the danger to be apprehended therefrom, and therefore that a cause of action was not made out, and a refusal to nonsuit was error.” In the case of Washington de Georgetown Railroad v. McDade, 135 U. S. 554, 570, this court said, through Mr. Justice Lamar: “If the employe knew of the defect in the machinery from which the injury happened, and yet remained in the service and continued to use the machinery without giving any notice thereof to the employer, he must be deemed to have assumed the risk of all danger reasonably to be apprehended from such use, and is entitled to no recovery.” In Tuttle n. Detroit de Milwaukee Railway, 122 IT. S. 189, this court approved the action of the court below in holding that the plaintiff was precluded from a recovery by negligence of his own, and added that the judge was right in directing a verdict for the defendant on the broader ground that a person who enters into the service of another in a particular employment assumes the risk incident to such employment. In Kohn v. McNulta, 147 IT. S. 238, 241, the case was that of a brakeman who was injured while coupling cars, and who alleged negligence in the defendant company in permitting cars of another road to be brought on defendant’s road, which cars had bumpers of unusual length ; and it was said by this court; “ It is not pretended that these cars were out of 156 OCTOBER TERM, 1893. Opinion of the Court. repair, or in a defective condition, but simply that they were constructed differently from the Wabash cars in that they had double deadwoods or bumpers of unusual length to protect the draw bars. But all this was obvious even to a passing glance, and the risk which there was in coupling such cars was apparent. It required no special skill or knowledge to detect it. The intervenor was no boy, placed by the employer in a position of undisclosed danger, but a mature man, doing the ordinary work which he had engaged to do, and whose risks in this respect were obvious to any one. Under those circumstances he assumed the risk of such an accident as this, and no negligence can be imputed to the employer.” That Seley was guilty of contributory negligence, and therefore not entitled to recover, we think is also obvious. Knowing, as he did, the character of the frog, and the liability of being caught in it, and after having been specially warned by the assistant brakeman, he yet persisted in exposing himself to an obvious danger. His object to couple the cars might have been successfully accomplished without placing his foot in the frog. Recklessness could hardly go further. The evidence would warrant no other conclusion than that he took the risk of the work in which he was employed, and that his negligence in the course of that work was the direct cause of his death. The court should have directed a verdict for the defendant. Ra/ndall v. Balt. & Ohio Railroad, 109 U. S. 478; Schofield v. Chicago, Milwaukee &c. Railway, 114 U. S. 615; Gunther v. Liverpool db Globe Ins. Co., 134 U. S. 110; Bunt v. Sierra Butte Gold Mining Co., 138 U. S. 483. The judgment of the court below is reversed, and the cause is remanded with directions to award a new trial. EL PASO WATER COMPANY v. EL PASO. 157 Statement of the Case. EL PASO WATER COMPANY v. EL PASO. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TEXAS. No. 238. Submitted February 1,1894. — Decided March 5, 1894. In a suit in a Circuit Court by a water company, to which a municipal government has granted the exclusive right to supply it and its inhabitants with water for fifteen years, against the municipality to prevent it from establishing or maintaining other water works within the limits of the municipality until after the expiration of said period, it did not appear affirmatively that it was contemplated that the other works complained of were to go into operation until after the expiration of that period; and as it did not appear from the record that there was over $5000 in controversy, held, that this court had no jurisdiction. This was an appeal from a decree of the Circuit Court of the United States for the Western District of Texas, sustaining a demurrer to the plaintiff’s original and amended bills, and dismissing the same. The facts as alleged in the bills were substantially these: By an ordinance passed May 7, 1881, the city council of the city of El Paso, Texas, assumed to grant “ the sole and exclusive right, warrant and authority, for the period of fifteen years, to manufacture, sell and furnish water to the inhabitants of the city of El Paso, to both public and private buildings, and for irrigation within the corporate limits of said dty,” with “ the sole and exclusive right, warrant, and authority for said period to lay pipes, mains, and conductors underneath the streets, alleys, lanes, and squares in said city, for the purpose of conducting water,” and by a subsequent ordinance rented hydrants at a certain annual rent. By certain assignments and transfers these rights became vested in the plaintiff, and in reliance thereon it expended a large sum of money, to wit, the sum of $150,000, in establishing its plant. The substance of these ordinances, the acts of the plaintiff, and subsequent dealings between it and the city were stated at length in the bills, but the sum of the whole matter lay in the fact of the alleged exclusive right to supply water to the city for the term of fif- 158 OCTOBER TERM, 1893. Opinion of the Court. teen years, and to occupy the streets for the purpose of laying mains, etc. The wrong complained of was the passage of two ordinances in 1889 and 1890, approved by a vote of the people, authorizing the issue of $25,000 and $75,000, respectively, of the bonds of the city for the avowed and .declared purpose on the part of the council of sinking artesian wells and constructing a system of water works to be owned and operated by said council for supplying water to said city and inhabitantSj for all public and private purposes; and the relief prayed was that the city be enjoined from establishing, maintaining, or operating any water works within the limits of said city until the expiration of said period of fifteen years, and from selling or negotiating any bonds, or other securities, for that purpose. It was also alleged that if the bonds are issued, the plaintiff will be compelled to pay taxes on its property for the interest on said bonds and to provide a sinking fund for the principal thereof, but the amount of the tax which will be thereby cast upon the plaintiff’s property is not disclosed. The appellee moved to dismiss the appeal for want of jurisdiction. J/r. Walter D. Davidge and Mr. Leigh Clark for the motion. Mr. William Thompson and Mr. Maurice McKeag opposing. Mr. Justice Brewer, after stating the case, delivered the opinion of the court. Probably the Circuit Court sustained the demurrer on the ground that under the constitution of the State of Texas, adopted in 1876, the attempt to grant exclusive rights in these matters was beyond the power of the city, and that, among other matters, is discussed at length by counsel in their respective briefs. That constitution (article 1, section 26) provides that “ perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed.” In the case of Brenham v. The Brenham Water Works Co., 67 Texas, 542, the Supreme Court of the State, construing this provision, held EL PASO WATER COMPANY v. EL PASO. 159 Opinion of the Court. that a contract similar to that made with the plaintiff was inhibited by the constitution, and that neither the city council nor the state legislature had power to make or authorize such a contract. We do not deem it necessary to consider the important constitutional question thus presented, for it does not appear from the record that there is over $5000 in controversy, as is necessary to give this court jurisdiction. The bill *s filed by the plaintiff to protect its individual interests, and to prevent damage to itself. It must, therefore, affirmatively appear that the acts charged against the city, and sought to be enjoined, would result in its damage to an amount in excess of $5000. So far as respects the matter of taxes which, by the issue of bonds, would be cast upon the property of the plaintiff, it is enough to say that the amount thereof is not stated, nor any facts given from which it can be fairly inferred. With regard to the claim of exclusive rights, there is no allegation in the bills of the time at which the city will, unless restrained, commence the operation of its contemplated system of water works, and thus interfere with the actual performance of its contract with the plaintiff so far as respects the supply of water. Every averment would be satisfied by proof that the city intended to begin the use of its proposed water works on the day before the expiration of the fifteen years. And the only distinct disclosure of damage in the bills, or by the affidavits filed in this court, is that resulting from an actual supply of water by the city and a failure to pay the plaintiff for the use of its hydrants. So far as the mere construction of water works is concerned, that of itself is no violation of the terms of this contract. The time for which the exclusive right, as claimed, was given, was fifteen years, and the city would be guilty of no breach of any obligations if, during the life of the contract, it proceeded to sink artesian wells, to establish water works, and put itself in condition to, in the future and after the termination of the fifteen years, supply water for all public and private purposes. Suppose that the very next day after the acceptance by the grantee of these franchises the city had commenced the work of sinking 160 OCTOBER TERM, 1893. Syllabus. artesian wells and establishing a system of water works, and had continued its labors in that direction during the entire life of the contract : that would have been no breach of its obligations to the plaintiff. It might have affected pecuniarily the value of the plaintiff’s plant in that it carried a strong intimation that the moment the fifteen years expired the city would itself engage in the work of supplying water, and thus take from the plaintiff its business. So, preparations made by the city, at the time stated in the bills, to wit, 1889 and 1890, for the establishment of water works, may, and doubtless did, have some effect upon the value of the plaintiff’s property, but the extent of the diminution of value thus caused is not alleged, and cannot be inferred. The bills do not allege that the city in terms denies the validity of its agreement to pay rent for hydrants or otherwise, and the acts which they charge that the city is about to do are acts which the city may do consistently with the continuance of the contract, and as a mere matter of preparation for the discharge of a public duty after the termination of that contract. Under these circumstances, we are of the opinion that it is not affirmatively disclosed by the record that the amount in controversy is a sum in excess of $5000, and, therefore, for want of jurisdiction in this court, the appeal must be Dismissed. MONTANA COMPANY v. ST. LOUIS MINING AND MILLING COMPANY. ERROR TO THE SUPREME COURT OF THE STATE OF MONTANA. No. 167. Submitted December 13,1893. — Decided March 5,1894. The provision in section 376 of the Code of Civil Procedure of Montana, which authorizes a court on the petition of a person interested in a lead, lode, or mining claim which is in the possession of another person, after notice to the adverse party, to order an inspection, examination, or survey of the lode or mining claim in'question, and that the petitioner shall have free access thereto for the purpose of making such inspection, MONTANA COMPANY v, ST. LOUIS MINING &c. CO. 161 Statement of the Case. examination, and survey, and that any interference with him while acting under such order, shall be contempt of court, is not in conflict with the Constitution of the United States. The facts in this case are as follows: On November 6, 1889, the defendant in error filed in the District Court of the county of Lewis and Clarke, in the then Territory of Montana, its petition praying an order for the inspection of certain mines alleged to be the property and in possession of the Montana Company (Limited). Notice was given, the defendant appeared and answered, a hearing was had, and on the 7th of December, 1889, an order for an inspection was made by the judge of said court. This order recited the giving of the notice, the hearing of the application, the production of evidence, and the arguments of counsel; finds that an inspection is necessary for the ascertainment, enforcement, and protection of the rights and interests of the petitioner in the mining claim owned by it; appoints the inspectors, and directs that they make an inspection, examination, and survey. It limits the survey to the vertical planes of the end lines of the petitioners’ claim, forbids the removal of any ore or minerals, or entrance to the mine unless accompanied by three representatives of the defendant, and in general makes suitable provisions to prevent any unnecessary interference with the defendant’s working of the mine. By subsequent proceedings in the way of contempt, Rawlinson T. Bayliss, the general manager of the Montana Company (Limited), became a party to this litigation, and upon an adverse termination thereof in the District Court a review was sought in the Supreme Court of the State, the Territory having been admitted into the Union intermediate the filing of the application and the final disposition of the case in the District Court. By that court the proceedings were sustained, and on February 4, 1890, it entered a judgment of affirmance. To review this judgment the defendants sued out a writ of error from this court. The statute under which the proceedings were had is section 376 of the Code of Civil Procedure, (Compiled Statutes, P-162,) and is in these words: vqm omi—n 162 OCTOBER TERM, 1893. Statement of the Case. “ Whenever any person shall have any right to or interest in any lead, lode, or mining claim which is in the possession of another person, and it shall be necessary for the ascertainment, enforcement, or protection of such right or interest that an inspection, examination, or survey of such mine, lode, or mining claim should be had or made; or whenever any inspection, examination, or survey of any such lode or mining claim shall be necessary to protect, ascertain, or enforce the right or interest of any person in another mine, lead, lode, or mining claim and the person in possession of the same shall refuse for a period of three days after demand therefor in writing, to allow such inspection, examination, or survey to be had or made, the party so desiring the same may present to the district court or a judge thereof of the county wherein the mine, lead, lode, or mining claim is situated a petition under oath setting out his interest in the premises, describing the same, that the premises are in the possession of a party, naming him, the reason why such examination, inspection, or survey is necessary, the demand made on the person in possession so to permit such examination, inspection, or survey, and his refusal so to do. The court or judge shall thereupon appoint a time and place for hearing such petition and shall order notice thereof to be served upon the adverse party, which notice shall be served at least one day before the day of hearing. On the hearing either party may read affidavits, and if the court or judge is satisfied that the facts stated in the petition are true, he shall make an order for an inspection, examination, or survey of the lode or mining claim in question in such manner, at such time, and by such persons as are mentioned in the order. Such persons shall thereupon have free access to such mine, lead, lode, or mining claim for the purpose of making such inspection, examination, or survey, and any interference with such persons while acting under such order shall be contempt of court. If the order of the court is made while an action is pending between the parties to the order, the costs of obtaining the order shall abide the result of the action, but all costs of making such examination or survey shall be paid by the petitioner.” MONTANA COMPANY v. ST. LOUIS MINING- &c. CO. 163 Argument for Plaintiffs in Error. Mr. W. E. Cullen, Mr. A. H. Garland, and Mr. EL J. May for plaintiffs in error. The statute under which this proceeding is brought, while not entirely without precedent, seems to be one of unusual hardship, and one which might be made the instrument of much oppression and injustice. Its operation, it is true, is confined to mining claims, but if the principle is a good one, no reason is perceived why it might not be extended to any other species of property. The title which a miner obtains to his mining claim differs in no essential respect from that by which any other property is held, so far as the right to equal protection of law is concerned. If, as in the case at bar, a person, who is about to bring an action of some sort against a mine owner, is to be entitled to go into the premises to make a survey of them to ascertain what development work has been done on them, and what ore has been extracted, then it would seem that it would be only even-handed justice to allow one about to commence an action of ejectment against another for a farm, to go upon the demanded premises for the purpose of surveying them that he may get an accurate description for insertion in his complaint, or for the purpose of enabling him to determine what have been the mesne profits, to allow him to go into the bins and granaries of the defendant and measure their contents. No right of this kind existed at common law, nor is such procedure authorized by statute in any State in the Union with reference to any other species of property than mining claims. To justify the making of an order for an inspection, examination, or survey, the petitioner must establish the fact that he has “ a right to or interest in ” the lead, lode, or mining claim so to be examined or surveyed, or that he is the owner of another mining claim, and that it is necessary for the purpose of protecting, ascertaining, and enforcing his rights in such claim that he should be permitted to inspect, examine, or survey another mining claim belonging to his neighbor. In either case there is a question of ownership — of right or title to real estate to be found by the court. The issue is as 164 OCTOBER TERM, 1893. Argument for Plaintiffs in Error. material and substantial in all respects as if it were presented in an action of ejectment or trespass. No reason is perceived why the final order made should not have the binding force, as to this issue, of a judgment or decree, and be conclusive between the parties. To say the least of it, this is a very considerable encroachment on the right of trial by jury secured by the Constitution. It is safe to say that section 376 of the Montana Code of Civil Procedure is a very pernicious and dangerous piece of legislation, and one liable to great abuse. It engrafts upon the judicial system a principle not known to the common law, and one not found in the laws of any State or Territory in the Union, with two exceptions. Nowhere is it made applicable to any other species of real estate except mining claims, and under its terms the tenure of this class of property is rendered most precarious. A mine-owner on an ex parte hearing, or at best on barely one day’s notice, may have possession of his property taken from him, and be kept out of possession of it indefinitely. And this can be done without any security being given for the payment of his inevitable damages, perhaps without even a cause of action against the petitioner for damages, and without that orderly ascertainment of his rights in a court of justice which is the birthright of every freeman. We do not believe that a miner thus holds his property under the ban of the law, and we do believe that the constitution of Montana extends to it a just and equal protection ; and if it does not, surely the Constitution of the United States does. And we submit there was no mistake in our designating, in the first part of this brief, this statute as special, harsh, innovating and summary, as well as unconstitutional. It is useless to consume time in examining and analyzing the decisions in the English courts of equity, as these courts, with their great powers, make and mould their process, and deal with these questions as equity requires. But here is a statute giving a certain power, which, construed, we say is cruel, and violates the organic law of the nation, and these English cases do not and cannot enlighten us on this point. MONTANA COMPANY v. ST. LOUIS MINING &c. CO. 16$ Opinion of the Court. Mr. E. W. Toole and Mr. John B. Clayberg for defendant in error. Me. Justice Brewer, after stating the case, delivered the opinion of the court. The decision of the Supreme Court of the State ends all inquiry as to a conflict between the statute or the proceedings had thereunder and the state constitution. The only question we may consider is whether there is any violation of the provisions of the Federal Constitution. In the petition filed for the writ of error the plaintiffs in error alleged as the basis thereof that “the validity of said statute is drawn in question on the ground of its being repugnant to that provision of the Fourteenth Amendment to the Constitution of the United States, which prohibits any State from depriving any person of life, liberty, or property, without due process of law.” In the brief it is said that the Chief Justice of the Supreme Court of the State, in his opinion, summarized exactly what they insist upon, as follows: “ It is contended that this statute is unconstitutional, and authorizes the inspection, examination, and survey of the mining property of the Montana Company (Limited) upon the petition of the St. Louis Mining and Milling Company of Montana, and before the commencement of any action by the parties. The obnoxious features are pointed out in the brief, and may be summarized under the following heads : This law ’nay be made an instrument of oppression and injustice; the quality of the interest of the petitioner is not defined; no bond is required to be given to secure the payment of the damages which may result to the owner of the property which is invaded ; no appeal is allowed from the order of the court °r judge in granting the prayer of the petitioner; the power of the court or judge is vast, and can practically confiscate any mine in the State; the innocent owners of mining property are injured without ‘ due process of law.’ ” Inspection orders like this have been frequently made, some- 166 OCTOBER TERM, 1893. Opinion of the Court. times under the authority of special statutes and sometimes by virtue only of the general powers of a court of equity. See the following cases, most of which are collected in the opinion of the Supreme Court of the State: Ea/rl of Lonsdale v. Curwen, 3 Bligh, 168; Walker v. Fletcher, 3 Bligh, 172; Blakesley v. Whieldon, 1 Hare, 176; Lewis v. Marsh, 8 Hare, 97; Bennitt v. Whitehouse, 28 Beav. 119 ; Bennett v. Griffiths, 30 L. J. N. S. Part 2, Q. B. 98; Whaley v. Brancker, 10 Law Times N. S. 155; Thornburgh v. Savage Mining Co., 1 Pac. Law Mag. 267; S. C. 7 Morrison Min. Rep. 667; Stock-bridge Iron Co. v. Cone Iron Works, 102 Mass. 80; Thomas Iron Co. v. Allentown Mining Co., 1 Stewart, (28 N. J. Eq.) 77. It was said in Lewis v. Marsh, supra, by the Vice-Chancellor: “1 think the case is one in which there is a necessity that the party should be allowed what he asks, in order to prove his case. That is the meaning of necessity. A party cannot get his rights without proving what his rights are ; and it is inherent in the case that the plaintiffs should have an opportunity of ascertaining that the defendants do not work more coal than they are entitled to do.” And in Bennett v. Griffiths, where leave was asked not merely for an inspection, but for making a driftway through a wall for the purpose of determining what workings had been done behind it, the court, by Cockburn, C. J.,said: “We are of opinion that the judge had jurisdiction to make the order in question. The power to order an inspection of real or personal property has long existed in the courts of equity, and we find that as ancillary to that power the courts of equity have ordered the removal, where necessary, of obstructions to the inspection.” In Thornburgh v. Savage Mining Co., 7 Morrison’s Min. Rep., a case heard and determined in the Circuit Court of the United States for the District of Nevada by the District Judge, Alexander W. Baldwin, we find the matter thus discussed : “Ought a court of equity, in a mining case, when it has been convinced of the importance thereof for the purposes of the trial, to compel an inspection and survey of the works of MONTANA COMPANY v. ST. LOUIS MINING &c. CO. 167 Opinion of the Court. the parties, and admittance thereto by means of the appliances in use at the mine? All the analogies of equity jurisprudence favor the affirmative of this proposition. The very great powers with which a court of chancery is clothed were given it to enable it to carry out the administration of nicer and more perfect justice than is attainable in a court of law. “ That a court of equity, having jurisdiction of the subjectmatter of the action, has the power to enforce an order of this kind will not be denied. And the propriety of exercising that power would seem to be clear, indeed, in a case where, without it, the trial would be a silly farce. Take, as an illustration, the case at bar. It is notorious that the facts by which this controversy must be determined cannot be discovered except by an inspection of works in the possession of the defendant, accessible only by means of a deep shaft and machinery operated by it. It would be a denial of justice, and utterly subversive of the objects for which courts were created, for them to refuse to exert their power for the elucidation of the very truth — the issue between the parties. Can a court justly decide a cause without knowing the facts ? And can it refuse to learn the facts ? ” See also Kynaston v. East India Co., 3 Swanst. 249, in which an inspection of buildings was ordered to enable the inspectors to testify as to the value; State v. Seymour, 6 Vroom, (35 N. J. L.) 47, 53; and Winslow v. Gifford, 6 Cush. 327. In the latter case it appeared that certain commissioners, under authority of a statute, entered upon the lands of the plaintiff and made certain surveys, with a view of ascertaining the boundaries of a tract of land devoted to public purposes, no compensation being provided for such apparent trespass. Plaintiff brought suit to recover damages therefor. It wTas held that the act authorizing such entry without compensation was not unconstitutional. Other instances of like temporary occupancy were referred to by the court in its opinion, such as the act of the sheriff, with criminal process against an individual, going to arrest himton the land of a third party; entering upon the lands of an individual for the purpose of surveying 168 OCTOBER TERM, 1893. Opinion of the Court. for a highway, when, as a result of such survey, the purpose of establishing the highway is abandoned. It was conceded that such entry and occupancy created a slight trespass upon the absolute right of the owner to an undisturbed and exclusive use of his real estate, but it was held that if the occupancy was reasonably necessary for some public purpose, was temporary, and with no unnecessary damage, it carried no right to compensation. Other instances will readily suggest themselves in which there is some temporary interference with a man’s absolute control of his own property, as when a party is compelled to produce his books and papers for examination by the adverse party, or when, through a receiver, possession of property is taken pending a dispute as to the title or liens upon it. All these cases involve some invasion of the rights of the owner to the possession and use of his property, yet the necessities of justice seem to compel it. It is true that most of the reported cases of order for inspection are of recent date, but the question whether a certain proceeding is due process of law is not determined by the matter of age. In Hurtado v. California, 110 IT. S. 516, 537, the question was presented whether the prosecution of criminal offences by information rather than by indictment, if authorized by the constitution and laws of a state, was in conflict with the clause of the Fourteenth Amendment to the Constitution of the United States requiring due process of law, and it was held that it was not, and that such mode of proceeding, though of recent origin, was nevertheless due process of law. The court, by Mr. Justice Matthew’s, after referring to the fact that there are certain fundamental rights which cannot be disregarded, said: “ It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.” On the other hand, while not decisive of the question, the frequency with which these orders erf inspection have of late years been made, and the fact that the right to make them has MONTANA COMPANY v. ST. LOUIS MINING &c. CO. 169 Opinion of the Court. never been denied by the courts, is suggestive that there is no inherent vice in them. And if the courts of equity, by virtue of their general powers, may rightfully order such an inspection in a case pending before them, surely it is within the power of a State by statute to provide the manner and conditions of such an inspection in advance of the suit. To “ establish justice ” is one of the objects of all social organizations, as well as one of the declared purposes of the Federal Constitution, and if, to determine the exact measure of the rights of parties it is necessary that a temporary invasion of the possession of either for purposes of inspection be had, surely the lesser evil of a temporary invasion of one’s possession should yield to the higher good of establishing justice; and any measures or proceedings which, having the sanction of law, provide for such temporary invasion with the least injury and inconvenience, should not be obnoxious to the charge of not being due process of law. Passing from these general suggestions to some of a more special character, it must be remembered that inspection does not deprive the owner of the title to any portion of his property, nor does it deprive him permanently of the use. The property, therefore, is not taken in the sense that he no longer remains the owner, nor in the sense that the permanent use of the property has been appropriated. In Pumpelly v. Green Bay Company, 13 Wall. 166, it was held that if a party is deprived of the entire use of his property it is a taking within the scope of the Fifth Amendment, although the mere title is not disturbed. But by an inspection neither the title nor the general use is taken, and all that can be said is that there is a temporary and limited interruption of the exclusive use. And it is in that light that the question of the validity of this statute is to be determined. Counsel for plaintiffs in error contend that there is possibility of grievous wrong being done in carrying into effect the provisions of this statute, and say that the question of validity is to be determined not by the amount of wrong done in the present case, but by what may be done in other cases, quoting the language of Earl, J., in ¡Stuart v. Palmer, 74 N. Y. 183, 170 OCTOBER TERM, 1893. Opinion of the Court. 188: “ The constitutional validity of law is to be tested not by what has been done under it, but by what may, by its authority, be done.” This test is accurate, provided, of course, it is limited to what may rightfully be done, and does not extend to that which is wrongfully, though under pretence of the statute, done. Thus, that the power of a court of equity to grant injunctions is not inhibited by the constitutional provision requiring due process of law is clear, although in a particular case a court may disregard the rules of equity and justice in granting the injunction. It is objected that the statute does not define the quality of “ right to or interest in ” the mining claim which entitles to an inspection. But does the amount of a party’s interest determine the question of the constitutionality of a statute passed to enable an accurate determination thereof ? Suppose it be true that a petitioner has but a limited interest in a mine, has not that petitioner a legal right to the protection of that interest equal to that of the other owners ? Has he not the same constitutional right to any means of ascertaining and enforcing that interest that belongs to any other party interested in the mine ? Indeed, it may be said to be generally true that the weaker a party and the smaller his interest, the greater the need of the strong hand of the court to ascertain and protect his rights. It is true, the quality of the right or interest is not defined, but it must, in order to come within the statute, be a “ right to or interest in ” the mining claim. The language is general and comprehensive, because the intent is to include within its purview every actual right, every real interest. While it is possible that in any particular case a court may err in determining the existence of a right or interest, the same possibility attaches to all litigation. If it be the duty of the State to protect the rights of its citizens, it certainly cannot be a violation of that duty to provide a uniform rule for the admeasurement of all rights of a similar character, large or small. The failure to require a bond, or in terms to allow an appeal, is not fatal to the constitutionality of the act. It familiar knowledge that the Circuit Courts of the Unite MONTANA COMPANY v. ST. LOUIS MINING! &c. CO. 171 Opinion of the Court. States are not compelled in granting preliminary injunctions to take from the plaintiff a bond of indemnity to the defendant, and, frequently, they do not take any. As in such cases the matter of a bond is within the discretion of the judge, so, whether a bond shall be required as preliminary to an inspection, is a matter within the discretion of the State. The right to an inspection does not depend upon a bond, and the order for an inspection does not cease to be due process of law because a bond is not required. No inspection is ordered by the court or judge until there has been a hearing and an adjudication of the petitioner’s right; and while further testimony in the future litigation between the parties may show that such adjudication was erroneous, and that there is, in fact, no right on the part of the petitioner, yet that is a result common to all litigation, and does not gainsay the statement that the inspection is based upon a right established by judicial determination. Nor can the withholding, if it be withheld, of an appeal affect the question of due process. An appeal simply means a second hearing; and if one hearing is not due process of law, doubling it cannot make it so. No more significant is the want of a trial by jury upon the existence of the right or interest prior to the order for the inspection. A jury trial is not in all cases essential to due process of law. Murray's Lessee n. Hoboken Land* Co., 18 How. 272; Palmer v. McMahon, 133 U. S. 660. Equity proceeds to final determination of the most important rights without a jury, and nothing is more common than a new proceeding established by statute to be carried on without the aid of a jury, as, for instance, proceedings by the State under its right of eminent domain : Livingston v. New York City, 8 Wend. 85. To determine the right to office under an election : Whallon v. Bancroft, 4 Minnesota, 109. To compel delivery of the possession of the seal, records, and papers of an office: Atherton v. Sherwood, 15 Minnesota, 221. To appoint guardians of insane persons: Gaston v. Babcock, 6 Wisconsin, 503. To assess the value of improvements under the occupying claimants’ law: Ross v. Irving, 14 Illinois, 171. To enforce statutory liens upon vessels for labor and material: 172 OCTOBER TERM, 1893. Syllabus. Sheppard v. Steele, 43 N. Y. 52. To determine the settlement of paupers: Shirley v. Lunenburg, 11 Mass. 379. For the assessment and collection of taxes: Crandall n. James, 6 R. I. 144. But it is needless to multiply instances. In conclusion, it may be observed that courts of equity have, in the exercise of their inherent powers, been in the habit of ordering inspections of property, as of requiring the production of books and papers; that this power on the part of such courts has never been denied, and if it exists, a fortiori, the State has power to provide a statutory proceeding to accomplish the same result; that the proceeding provided by this statute requires notice to the defendant, a hearing and an adjudication before the court or judge; that it permits no removal or appropriation of any property, nor any permanent dispossession of its use, but is limited to such temporary and partial occupation as is necessary for a mere inspection; that there is a necessity for such proceeding in order that justice may be exactly administered; that this statute provides all reasonable protection to the party against whom the inspection is ordered ; that the failure to require a bond, or to provide an appeal, or to have the question of title settled before a jury, is not the omission of matters essential to due process of law. It follows, therefore, that there is no conflict between this statute and the Fourteenth Amendment of the Constitution of the United States, and the judgment of the Supreme Court of Montana is Affirmed. MILLER v. COURTNAY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA. No. 1ST. Submitted December 11, 1893. — Decided March 5, 1894. In an action of ejectment, in a Federal court, the legal title prevails. The legal title to the premises in dispute passed to the grantor of the defendant by sale under execution and the sheriff’s deed, and was not divested by the subsequent decree set forth in the statement of facts. MILLER v. COURTNAY. 173 Statement of the Case. This was an action of ejectment commenced by Jason G. Miller in the Circuit Court of the United States for the District of Nebraska, on February 21, 1887, to recover of the defendant the possession of certain real estate situate in an addition to the city of Lincoln, in that State. After answer and reply, the case on November 15, 1887, came on for trial before a jury, which returned a special verdict finding the facts. Upon such special verdict judgment was, on motion, entered in favor of the defendant. The plaintiff thereupon sued out a writ of error from this court. Since the filing of the record Jason G. Miller has died, and the action been revived in the name of Mary P. Miller, his devisee. The testimony given on the trial was not preserved by any bill of exceptions, and the questions which arise are upon the sufficiency of the facts found to sustain the judgment. It appears from these findings that on August 21, 1867, the title to the land passed to Luke Lavender, the common source of title of plaintiff and defendant. On November 4, 1873, Henry Atkins obtained a judgment against Luke Lavender in the district court of Lancaster County, the county in which the land is situated. Executions were issued from time to time on this judgment and levied on the property in controversy. Finally, on March 22, 1879, the sheriff sold the property to Martha I. Courtnay, wife of the defendant. This sale was confirmed by the court and the sheriff’s deed duly executed. Lavender was personally served with process, and the proceedings from the commencement of the action to the execution of the sheriff’s deed were regular in form. The title thus acquired she subsequently conveyed to the defendant, though not till after the commencement of the present action. On April 17, 1884, Lavender filed his petition in the same court against Henry Atkins, Martha I. Courtnay, and D. G. Courtnay, this defendant, in which he alleged his ownership, in 1873, of the property in controversy, as well as other real estate, the rendition of several judgments against him during the years 1873 and 1874, among others that in favor of Atkins; that the property then belonging to him was worth $75,000 over and