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(40 Sup.Ct.)



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*in length, from the deep channel south of Grassy Point and east of Fisherman's Island

rior, that within "The Entry" there were
only small boats of light draft, and that
navigation long remained rather primitive.

to the deep water immediately westward of
the *bar, about seven-eighths of a mile north-
east of Big Island. It further discloses a

defined channel.

curving channel along the west side of Grassy Point, and thence close to the Minnesota shore and around Big Island, with a depth of 15 or more feet, except at the bar,

[3] Lower St. Louis Bay was shallow, with a ruling depth of 8 feet, and had no wellFrom the deep water at the southern tip of Grassy Point a vessel drawing less than 8 feet bound north of Big Island and beyond could have turned channel near the Minnesota shore with a rulnorthwest and followed the narrow winding ing depth of 10, possibly 8, feet, or it could have proceeded westward, approximately one mile, over a more direct course with a depth

where there are only 10, possibly 8, feet. To

the south of Big Island lies the well-known

and formerly much-used course indicated on Lieut. Bayfield's Map.

of 8 feet or more, until it came to the deeper

channel about seven-eighths of a mile north

Since 1893 the United States have dredged a 22 foot channel through Upper St. Louis Bay and around Grassy Point; thence through Lower St. Louis Bay (where there are two branches) and between Rice's and Connor's Points; thence through Superior Bay to "The Entry" and into the lake. Ex

The level of the water within all the bays is substantially the same as in Lake Supe-east of Big Island. This latter course is inrior; such current as exists flows in opposite dicated by the red trace "A, B, C,” on Mindirections, according to the wind and movement within the lake. The shores are ir-nesota's Exhibit No. 1-Meade's Chart. For many years officers and representatives of regular and much indented. both states regarded the boundary as on or near this line; and, considering all the circumstances, we think it must be accepted as the main channel within intendment of the statute. No current controlled navigation, and vessels proceeding in opposite directions followed the same general course. Both parties say that in 1846"practically all of Upper and Lower St. Louis Bays between the shores were navi*gable for such vessels as were accustomed to use said bays at said time for the purpose of navigation, and there was no defined course, or channel, in said bays, which said vessels followed, but, owing to the depth of the water, they were permitted and accustomed to travel across said bays in any direction."


tensive docks have been constructed from the Minnesota shore in both the upper and lower bays; those extending southwest from Grassy Point cross the boundary claimed by Wisconsin. The general situation of 1846 continued until long after 1861, but during the last 30 years extensive improvements required for a large and busy harbor have produced great changes.

[1] The complainant maintains that within the true intendment of the statute the "mouth of the St. Louis river" is southeast of Big Island, where end the banks, channel, and current characteristic of a river and lake features begin. On the other hand, the defendant insists, and we think correctly, that such mouth is at the junction of Lake Superior and the deep channel between Minnesota and Wisconsin Points-"The Entry."

It is unnecessary to specify the many facts and circumstances, historical and otherwise, which lead to the conclusion stated. They

For very many years subsequent to 1846 there were no vessels with 8-foot draft upon these waters, and probably none of such size regularly plied there until 1890 or later.

Manifestly, from the description heretofore given, the waters between Big Island and Lake Superior were broad sheets, without any definite uninterrupted deep channel extending throughout their entire length; also there was no steady, controlling current. Such vessels as plied there in 1846 and long thereafter moved with freedom in different directions. The evidence convinces us that, as navigation gradually increased prior to 1890, the northerly course in Upper St. Louis Bay commonly followed by vessels going to or coming from points above Big Island was not along the narrow curving channel skirting Grassy Point, but over the shorter one near the middle of the bay.

This court approved the doctrine of ThalThe line through Superior Bay is not here weg, as opposed to the physical middle line, called in question. But let it be noted that in Iowa v. Illinois, 147 U. S. 1, 13 Sup. Ct. no vessel drawing more than 8 feet could 239, 37 L. Ed. 55, and has adhered thereto. have passed into that bay from Lake Supe-Louisiana v. Mississippi, 202 U. S. 1, 26 Sup.



seem adequate, notwithstanding *some troublesome objections based upon the peculiar hydrographic conditions.

[2] Treating "The Entry" as the mouth of the St. Louis river, where is the line "thence up the main channel of said river to the first rapids," etc.? This must be determined upon consideration of the situation existing in 1846, which the parties admit remained substantially unchanged until after the Meade survey. No alterations now material have come about through accretion or erosion.

The course south of Big Island shown on the Bayfield Map was never accepted as the boundary, and need not be further considered. Wisconsin's claim to that island is not denied.

Ct. 408, 571, 50 L. Ed. 913; Washington v. Oregon, 211 U. S. 127, 29 Sup. Ct. 47, 53 L. Ed. 118; Id., 214 U. S. 205, 29 Sup. Ct. 631, 53 L. Ed. 969; Arkansas v. Tennessee, 246 U. S. 158, 38 Sup. Ct. 301, 62 L. Ed. 638, L. R. A. 1918D, 258.

(40 Sup.Ct.)


"When a navigable river constitutes the boundary between two independent states, the line defining the point at which the jurisdiction of the two separates is well established to be the middle of the main channel of the stream. The interest of each state in the navigation of the river admits *of no other line. The preservation by each of its equal right in the navigation of the stream is the subject of paramount interest. * * * Thus the jurisdiction of each state extends to the thread of the stream, that is, to the 'mid-channel,' and, if there be several channels, to the middle of the principal one, or, rather, the one usually followed." Iowa v. Illinois, supra, 147 U. S. 7, 13, 13 Sup. Ct. 241, 243, 37 L. Ed. 55.

"As to boundary lakes and landlocked seas, where there is no necessary track of navigation, the line of demarcation is drawn in the middle, and this is true of narrow straits separating the lands of two different states." Louisiana

v. Mississippi, supra, 202 U. S. 50, 26 Sup. Ct.

421, 50 L. Ed. 913.

As we view the whole record, the claim of Wisconsin cannot prevail, unless the doctrine of Thalweg requires us to say that the main channel is the deepest one. So to apply it here would defeat its fundamental purpose. The ruling depth in the waters below Upper Bay was 8 feet, and practically this limited navigation to vessels of no greater draft. For these there was abundant ter near the middle line. Under such circum


stances *Minnesota would be deprived of equality of right both in navigation and to the surface, if the boundary line were drawn near its shore.

tained upon a consideration of the situation existing in 1846 and accurately disclosed by the Meade Chart. That when traced on this chart the boundary runs midway between Rice's Point and Connor's Point, and through the middle of Lower St. Louis Bay to and with the deep channel leading into Upper St. Louis Bay, and to a point therein immediately south of the southern extremity of Grassy Point; thence westward along the most direct course, through water not less than 8 feet deep, eastward of Fisherman's Island and as indicated by the red trace "A, B, C," on Minnesota's Exhibit No. 1, approximately one mile, to the deep channel and immediately west of the bar therein; thence with such channel north and west of Big Island up stream to the falls.

No. 147.

[4] The doctrine of Thalweg, a modification of the more ancient principle, which required equal division of territory, was adopted in order to preserve to each state equality of right in the beneficial use of the stream as a means of communication. Accordingly, the middle of the principal channel of navigation is commonly accepted as the boundary. Equality in the beneficial use often would be defeated, rather than promoted, by fixing the boundary on a given line merely because it connects points of greatest depth. 1. MASTER AND SERVANT 307 - CRIMINAL Deepest water and the principal navigable channel are not necessarily the same. The rule has direct reference to actual or probable use in the ordinary course, and common experience shows that vessels do not follow a narrow crooked channel, close to shore, however deep, when they can proceed on a safer and more direct one with sufficient water.


A decree will be entered, declaring and adjudging as follows: That the boundary line between the two states must be ascer

Within 30 days counsel may present a proper decree for carrying this opinion into effect. The costs will be equally divided between the states.

It seems appropriate to repeat the suggestion, made in Washington v. Oregon, supra, 214 U. S. 217, 218, 29 Sup. Ct. 631, 53 L. Ed. 969, that the parties endeavor with consent of Congress to adjust their boundaries.

Mr. Justice BRANDEIS concurs in the result.

(252 U. S. 308) PANAMA R. CO. v. TOPPIN.

(Argued and Submitted Jan. 16, 1920. Decided March 15, 1920.)

Under the law of the republic of Panama (Ordinance No. 87 of 1896, arts. 488 and 489, Law No. 62 of 1887, art. 5, and Civ. Code, from liability in damages for injuries resulting art. 2341), a railroad company is not relieved from the negligence of an employé merely because the negligent act is also punishable as a crime.

The rule of practice under the Judicial Code of Colombia that a civil action cannot be prosecuted until the conclusion of a criminal action, arising out of the same act, has no application to an action against a railroad comwa-pany for injuries sustained in Panama from the negligence of the engineer, though the engineer would be punishable criminally, as the same person is not liable both civilly and criminally. 3. MASTER AND SERVANT 304—MASTER EX




Under the law of the republic of Panama (Col. Civ. Code, § 2347, and Law 62 of 1887, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

art. 5), a railroad company is not relieved of, ing there will be presumed to have continued liability for an injury caused by the negligence in force. of its engineer because it exercised care in selecting him.



In an action against a railroad company for personal injuries sustained in the republic of Panama, damages for physical pain were recoverable whether the law of Panama or that of the Canal Zone, where the action was brought, was applicable.

In Error to the United States Circuit Court of Appeals for the Fifth Circuit.

Action by Joseph T. Toppin against the Panama Railroad Company. A judgment for plaintiff was affirmed by the Circuit Court of Appeals for the Fifth Circuit (250 Fed. 989), and defendant brings error. Affirmed. *309

*Messrs. Frank Feuille and Walter F. Van Dame, both of Ancon, C. Z., for plaintiff in


Messrs. Wm. C. MacIntyre, of Cristobal, C. Z., and Felix E. Porter, of Ancon, C. Z., for defendant in error.

Mr. Justice BRANDEIS delivered the opin

ion of the Court.

Toppin was struck by a locomotive of the Panama Railroad Company while riding a horse in the city of Colon. He sued the company for damages in the District Court of the Canal Zone, alleging negligence, and recovered a verdict. The judgment entered thereon was affirmed by the Circuit Court of Appeals for the Fifth Circuit (250 Fed. 989, 163 C. C. A. 239), and the case is here on writ of error.

[1, 2] First. The company contends that the jury should have been instructed that under the law of Panama the company was not liable if the accident resulted from a criminal act of its employés; there being evidence that it was due to running the locomotive at a rate of speed prohibited under penalty by That Code, the Police Code of Panama. known as Ordinance No. 87 of the year 1896, provides (articles 488, 489):

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obliged to repair it, *without prejudice to the principal penalty which the law imposes for the fault or offense committed."

The main contentions of the company are here, as in Panama Railroad Co. v. Bosse, 249 U. S. 41, 39 Sup. Ct. 211, 63 L. Ed. 466, that the trial court erred in holding applicable the rule of respondeat superior and the rule permitting recovery for physical pain suffered. The important difference in the two cases is this: There the accident occurred in the Canal Zone; here in the republic of Panama. The company insists that the Bosse Case is not controlling, because the questions affecting liability must here be determined by the law of that republic, the place where the accident occurred. Slater v.

It would seem clear from a reading of these provisions that the company would not be relieved from liability in damages for injuries resulting from the negligence of its employé, merely because the negligent act was also punishable as a crime. And the Colombian authorities to which our attention has been called tend to confirm this construction.1 There seems to have been a rule of practice under the Colombian Judicial Code (article 1501)2 by which, if the civil action and the criminal action arising out of the same acts are not brought at the same time, the civil action cannot be prosecuted until the conclusion of the criminal action with the condemnation of the delinquent. But such rule ob


Mexican National Railroad Co., 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900; Cuba Railroad Co. v. Crosby, 222 U. S. 473, 32 Sup. Ct. 132, 56 L. Ed. 274, 38 L. R. A. (N. S.) 40. The law of Panama is pleaded by both par-viously can have no application here; among ties and evidence thereon was introduced by 1 Cecilia Jaramillo de Cancino v. The Railroad of both; but we are not limited to this evi- the North, Supreme Court of Justice of the Repubdence, as they agree that we may take judi-lic of Colombia, XIII Judicial Gazette, Nos. 652-653, cial notice of the law of Panama existing Feb- decided December 16, 1897. ruary 26, 1904, when the Canal Treaty was Supreme Court of Justice of the Republic of CoRuperto Restrepo v. Sabana Railway Company, proclaimed, and that, in the absence of evi-lombia, III Judicial Gazette, No. 353, pp. 332-334, dedence to the contrary, the law then prevail-cided July 19, 1892.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)


other reasons because it refers to the case is not unlikely that such was the object of where the same person is liable both civilly article 5 of Law 62 of 1887. and criminally. Here it is the engineer who is liable criminally under the Police Code and the company against whom civil liability is being enforced.

[3] Second. The company contends that by the law of Panama it cannot be held liable for the injury caused by the negligence of its engineer if it was careful in selecting him, because the law of Panama does not recog-lex nize liability without fault. This contention was made and rejected by the Supreme Court of Colombia in a case similar to the case at There suit was brought against the empresario of a railway to recover for the loss of a house by fire due to the negligent



Nos. 172, 173.

operation of a locomotive. *The court rested
the liability upon section 2347 of the Civil
Code, declaring that all doubt as to the ex-
istence of the necessary dependency was re-
moved by article 5 of Law 62 of 1887, which
"without in any way mentioning the depend-
ents, employés, or workmen of railway enter-
prises, makes their empresarios responsible (Argued Dec. 8, 1919. Decided March 15, 1920.)
for the damages and injuries which they may
cause to persons or to property by reason of
the service of the said roads." The court
continues: "And there is not in the record 1. CERTIORARI 69-SUPREME COURT MAY
any proof whatever that any care or precau-
tion, either on the part of the empresario or
the engineer, had been taken to prevent the
fire, the proof that the empresario on his
part had exercised much care in the selec-
tion of his employés not being sufficient in the
opinion of the court, because the diligence
and care here treated of, is that which ought
to have been exercised in order to prevent an
injury that could have been easily fore-
This case seems to overrule in ef-
fect the principal authority to which the
plaintiff in error has referred us—in fact, it




3 Cancino v. The Railroad of the North, supra, note 1.

Article 2347: "Every person is responsible not only for his own actions for the purpose of making good the damage, but for the act of those who may

[4] *Third. The contention that the lower courts erred in allowing recovery for physical pain was made and overruled in Panama Railroad Co. v. Bosse, supra, 249 U. S. 47, 39 Sup. Ct. 211, 63 L. Ed. 466. As the decision there rested upon article 2341 of the Civil Code of Panama, it is applicable whether the

loci or the lex fori should be held controlling as to such damages. Exception was also taken to the ruling that "if the plaintiff has developed tuberculosis of the spine as a result of the injuries received" the tuberculosis may be considered as an element of damages. The instruction was given with such explanations as to have been clearly unobjectionable. Affirmed.

be under his care.

"Thus, the father, and failing him the mother, is responsible for the act of the minor children who

live in the same house.

(252 U. S. 286)

See, also, Panama Railway Co. v. Bosse, 249 U. S. 41, 49, 39 Sup. Ct. 211, 63 L. Ed. 466.

Ramirez v. The Panama Railroad Company, Supreme Court of Justice of Colombia, 1 Gaceta Judicial, No. 22, p. 170 (June 10, 1887).

COLE et al. v. RALPH (two cases).

On certiorari to review judgments of the Circuit Court of Appeals, reversing judgments of the District Court and ordering a new trial, the Supreme Court may either proceed to a considered by the Circuit Court of Appeals, and complete decision or deal only with the matter remand the cases to that court for any needed action on other questions.

In suits to determine adverse claims under conflicting mining locations, the failure of the complaints to allege with certainty that defendant was in possession was cured by an affirmative statement in the answer that he was in possession.

"Thus the tutor or guardian is responsible for 3. PLEADING 40C(7)-OBJECTIONS WAIVED the conduct of the pupil who lives under his protection and care.


Thus the husband is responsible for the conduct of his wife.

"Thus the directors of colleges and schools respond for the acts of students while they are under their care, and artisans and empresarios for the acts of their apprentices and dependents in like cases.

Defendant waived want of precision in some of the allegations of the complaint by failing to make timely objection until the trial was have resulted in appropriate amendments. in progress, as timely objections would doubtless

"But this responsibility will cease if with the 4. MINES AND MINERALS 34-CONTRACT BY
exercise of the authority and care which their re-
spective characters prescribe for and confer on
them they could not prevent the act."


Under Rev. Laws Nev. 1912, §§ 1038-1040, a contract executed by locators of mining claims, giving other persons a right to a specified share in the output of the claim, was good between the parties, though not recorded.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 40 SUP.CT.-21

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