The thing relied upon in this case was the controlling effect as res judicata of a decree rendered between the parties in another suit. And the real issue was as to the jurisdiction of the court to render the decree. The determination of that question did not involve the construction or application of the Constitution of the United States. The circuit court held that the court rendering the first decree had jurisdiction to determine the ownership of the ore bodies under complainants had been deprived of their | a case in which the controlling rule of deproperty without due process of law, by cision involves the construction or applicameans of the decree attacked, but because tion of the Constitution of the United the bill alleged irregularities, errors, and States. jurisdictional defects in the foreclosure proceedings and fraud in respect thereof and in the subsequent transactions, which might have enabled the railroad company, upon a direct appeal, to have avoided the decree of sale, or which, if sustained on this bill, might have justified the circuit court in setting aside that decree, it does not follow that the construction or application of the Constitution of the United States was involved in the case in the sense of the statute. In passing upon the validi-neath the surface of the Skookum claim. ty of that decree the circuit court decided no question of the construction or the application of the Constitution, and, as we have said, no such question was raised for its consideration. Our conclusion is that the motion to dismiss the appeal must be sustained." The court thus really decided a question of res judicata between the parties upon general principles of law. And it does not convert the decision into one involving the construction and application of the Constitution of the United States to aver, argumentatively, that to give such effect to a former adjudication under the circumstances amounts to depriving a party of due process of law. We are of opinion, therefore, that the case does not come within the 5th section of the circuit court of appeals act as one directly appealable to this court. The appeal is dismissed for want of jurisdiction in this court. The cases cited were followed and the principles deducible therefrom applied in Cosmopolitan Min. Co. v. Walsh, 193 U. S. 460, 48 L. ed. 749, 24 Sup. Ct. Rep. 489. In that case it was contended, in a replication to an answer setting up certain former judgments rendered against the complainant as a bar to the suit brought by it to recover possession of the real property sold under the judgments, that they were awarded without due process of law, in violation of the 14th Amendment. And this was upon the theory that the service of process in DAVIDSON STEAMSHIP COMPANY, Plff. the state courts upon the corporation's agent in the suits where the judgments were rendered was unauthorized by the laws of the state or the general principles of law. It was held that the case was not one directly involving the construction or application of the Federal Constitution within the meaning of § 5 of the act of March 3, 1891, and the writ of error was dismissed. We think the principles involved in these cases decisive against jurisdiction in this court of this appeal. It is true that it is averred in the sixth paragraph of the amended answer above set forth that, in in Err., v. UNITED STATES OF AMERICA. Collision-with government breakwaternegligence. 1. A captain engaged in navigating the waters of Lake Superior cannot, as a matter of law, be said to be free from negligence in colliding with an uncompleted extension of a government breakwater in an important harbor in that lake, where he had the if known, would have prevented the colmeans of ascertaining the conditions, which, lision. Appeal-review of facts. 2. The determination of the jury, approved by the trial court and by the circuit court of appeals, respecting the negligence of the captain of a steamer in running into and injuring an uncompleted extension of a government breakwater in a the action to determine title to the ore bodies, the mining company had the right, under the laws and Constitution of the United States, to a trial by jury, of which it was deprived; and that so much of the decree as undertook to quiet title to the ore bodies was rendered without jurisdic-harbor, and respecting the contributory negtion, because the same constituted and was in fact an attempt to deprive the defendant of its property without due process of law, in violation of the Federal Constitution. But these averments of conclusions as to ligence of the government, cannot be dis- constitutional rights do not change the real Argued March 1, 1907. Decided March 25, character of the controversy and make it 1907. *Ed. Note.-For cases in point, see Cent. Dig. vol. 3. Appeal and Error, § 3948. On N ERROR to the United States Circuit | inches above the surface of the water. Court of Appeals for the Eighth Cir- the extreme outward end of the new excuit to review a judgment which affirmed a tension was a mast or pole about 12 feet judgment of the Circuit Court for the Dis-high, and on it was hung an ordinary trict of Minnesota in favor of the United white light or lantern. The original fixed States in an action to recover for injuries red light on the old breakwater had been to a government breakwater, alleged to moved back some 30 feet, in order that the have been occasioned by the negligence of new work could be properly joined to the the captain of a steamer. Affirmed. old. See same case below, 73 C. C. A. 425, 142 Fed. 315. The facts are stated in the opinion. Messrs. Charles E. Kremer and Hermon A. Kelley for plaintiff in error. On the evening named the Shenandoah loaded a cargo of iron ore at Superior, Wisconsin, and proceeded to Two Harbors, to take in tow a barge that was being loaded there. When the vessel left Superior the night was Assistant Attorney General Purdy for de- dark and stormy and the sky covered with fendant in error. clouds, with a heavy wind blowing from the northeast, making a high sea. Arriving Mr. Justice Brewer delivered the opinion off Two Harbors at about 11 o'clock, the of the court: steamer headed for the entrance, intending to enter port, as she had formerly done, close to the easterly breakwater. When she had approached within about 200 feet the surf was seen breaking over the extension of the breakwater. Her engines were promptly stopped and reversed, but, notwithstanding this, she struck this extension about 125 feet from the fixed red light, and did considerable damage to it, but with On April 1, 1902, the United States commenced this action in the circuit court of the United States for the district of Minnesota to recover for injuries charged to have been done through the negligence of the Davidson Steamship Company to a government breakwater at Two Harbors, Lake Superior. The defendant answered, denying the negligence, and alleging that the result was due to the negligence of the govern-out injury to herself. The port of Two ment, the plaintiff. No question was made as to the amount of the injury. Trial was had before a jury, which returned a verdict for the government. Judgment thereon was entered by the circuit court. This judgment was affirmed by the circuit court of appeals for the eighth circuit (73 C. C. A. 425), and from that court brought here on writ of error. Harbors is on the north side of Lake Superior, about 27 miles from Duluth, and one of the most important iron ore loading points on the Great Lakes. and an examination of them shows that very properly counsel for the steamship company considered them not sufficiently important to justify any discussion. Now, whether the injury was the result of negligence, and which party was guilty of negligence, are questions of fact properly determinable by a jury. These questions are the only ones discussed by counsel In a general way, the facts are that on for the steamship company, and therefore the night of July 24, 1901, the steamer to them alone we direct our attention. It Shenandoah, the property of the steamship is true in the assignment of errors some company, ran into the government break-other matters are named, but they are not water at Two Harbors, Minnesota. Agate called to our attention in brief or argument, bay, Lake Superior, is the harbor of the village of Two Harbors, and is an open bay, across the mouth of which there are breakwaters extending from either shore, running in an easterly and westerly direction, and leaving an open space as an entrance to the iron ore and other docks in the bay. The breakwater extending from the easterly side had been constructed for a number of years, extending into the bay for a distance of about 750 feet, and its outer end indicated in the nighttime by a fixed, large red light, 15 or 20 feet high. In 1899 the government projected an extension of this breakwater of about 300 feet in length, and at an angle of 45 degrees from the orig. inal breakwater. At the time of the injury this extension, composed of wooden cribs filled with stone, had been carried to its full length, but not built up to its intended height, and, in fact, rising only a few 27 S. C.-31. It is well, before noticing the testimony, to consider the extent to which our inquiry may properly go. The settled rule is that where negligence is a mere question of fact, and nothing appears which is negligence per se, the determination of the question is peculiarly the province of a jury, and its conclusions will not be disturbed unless it is entirely clear that they were erroneous. Courts do not approach the question as an original one, and consider whether, in their judgment, the testimony does or does not prove negligence, but accept the determination of the jury, if there is any evidence upon which it can be rested. This is the general rule in respect to all mere questions of fact. Authorities in this court, as well as in others, are abundant and, re-examination of facts which have been clear on this point. It is sufficient to re- tried by the jury under instructions corfer to one or two. rectly defining the legal rights of parties. Parsons v. Bedford, 3 Pet. 446, 7 L. ed. 736; Barreda v. Silsbee, 21 How. 167, 16 L. ed. 93; Mercantile Mut. Ins. Co. v. Folsom, 18 Wall. 249, 21 L. ed. 833." Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. ed. 745, was an action to recover damages in behalf of a boy, six years of age, for injuries sustained upon a turntable belonging to the railroad company. This turntable was in an open space, about 80 rods from the company's depot, in a village of from 100 to 150 persons. The railroad ground was not inclosed or visibly separated from the adjoining property, and was about three quarters of a mile distant from the house of the child's parents. The boy, with two older boys, went to the turntable and commenced playing on it. It was not attended or guarded by any servant of the company. It was not fastened or locked, and revolved easily on its axis. While so playing he was injured. The jury found the company guilty of negligence. In affirming the judgment this proposition was stated (664, L. ed. 749): "It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer,-these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge." In New York C. & H. R. R. Co. v. Fraloff, 100 U. S. 24, 31, 25 L. ed. 531, 534, one question was as to the value of property for which the company was responsible. Sustaining a judgment against it, we said: "If the jury acted upon a gross mistake of facts, or were governed by some improper influence or bias, the remedy therefor rested with the court below, under its general power to set aside the verdict. But that court, finding that the verdict was abundantly sustained by the evidence, and that there was no ground to suppose that the jury had not performed their duty impartially and justly, refused to disturb the verdict, and overruled a motion for new trial. Whether its action in that particular was erroneous or not, our power is restricted by the Constitution to the determination of the questions of law arising upon the record. Our authority does not extend to a In Dunlap v. Northeastern R. Co. 130 U. S. 649, 652, 32 L. ed. 1058, 1059, 9 Sup. Ct. Rep. 647, 648, this was the ruling: "The circuit court erred in not submitting the question of contributory negligence to the jury, as the conclusion did not fol low, 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. Kane v. Northern C. R. Co. 128 U. S. 91, 32 L. ed. 339, 9 Sup. Ct. Rep. 16; Jones v. East Tennessee, V. & G. R. Co. 128 U. S. 443, 32 L. ed. 478, 9 Sup. Ct. Rep. 118." In Richmond & D. R. Co. v. Powers, 149 U. S. 43, 45, 37 L. ed. 642, 643, 13 Sup. Ct. Rep. 748, 749, the jury having found the railroad company guilty of negligence, we sustained the verdict and judgment, saying: "It is well settled that where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and 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. Sioux City & P. R. Co. v. Stout, supra; Washington & G. R. Co. v. McDade, 135 U. S. 554, 34 L. ed. 235, 10 Sup. Ct. Rep. 1044; Delaware, L. & W. R. Co. v. Converse, 139 U. S. 469, 35 L. ed. 213, 11 Sup. Ct. Rep. 569." From these authorities, and many more of a kindred nature could be cited, it is obvious that the question for us to consider is whether there was testimony from which the jury might rightfully find the defendant guilty of negligence. It appears that the captain of the steamship had been for many years on the lakes, and that he was acting as pilot of the ship at the time of the collision. The harbor was one of great importance, although he had not been in it for over a year. He knew that harbor improvements on the Great Lakes were being made by the government, that information of the condition of those improvements was given from time to time by circulars from the Departments, and still made no efforts to ascertain the then condition of the harbor, the only chart he had being an old one. In addition to the fact that he knew where information could be obtained, might have assumed that he would be likely to be sent to any one of the many impor ascertaining the facts, could properly be regarded as negligence. Clearly, it could not be held as matter of law not to be so. tant harbors, and ought to have prepared | to be called upon to visit. His very want himself therefor, there was testimony that of knowledge, when he had the means of official circulars and notices were mailed to him at his postoffice address, although he states that he failed to receive them, and relied upon the knowledge which he had from his visit of more than a year theretofore, and upon what he should find as he entered the harbor. Now there is an obligation on all persons to take the care which, under ordinary circumstances of the case, a reasonable and prudent man would take, and the omission of that care constitutes negligence. It was said by Mr. Justice McLean, delivering the opinion in Culbertson v. The Southern Belle, 18 How. 584, 587, 15 L. ed. 493, 495: "When a steamer is about to enter a harbor great caution is required. There being no usage as to an open way, the vigilance is thrown upon the entering vessel. Ordinary care, under such circumstances, will not excuse a steamer for a wrong done." In Atlee v. Northwestern Union Packet Co. 21 Wall. 389, 396, 22 L. ed. 619, 621, Mr. Justice Miller, commenting on the duty of a pilot of a river steamer, makes these observations: It is true he was apparently misled by the lights on the breakwater, and we do not mean to intimate that there was no evidence from which the jury would have been warranted in finding that the government was guilty of negligence in the way in which it left those lights. But no omission or negligence on the part of the government avoids the fact that there was testimony from which the jury was justified in finding the captain guilty of negligence, and for that negligence the steamship company was responsible. The jury might have thought that if he had kept himself properly informed in reference to the condition of that as of other important harbors he would not have been misled by the condition of the lights. At any rate, the verdict of the jury was against the contention of contributory negligence on the part of the government, and the jury was the tribunal to determine this, as well as the question of negligence. We could not set aside the verdict of the jury, approved as it was by the trial court and the court of appeals, without ourselves exercising the function of triers of fact, when, under the law, such questions are committed to the determination of a jury. The judgment is affirmed. "But the pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge of the topography through which he steers his vessel. In the long course of a thousand miles in one of these rivers, he must be familiar with the appearance of the shore on each side of the river as he goes along. Its banks, towns, its landings, its houses and trees, and its openings between trees, are all landmarks by which he steers his vessel. The compass is of little use to him. He must know where the navigable channel is, in its relation to all these external objects, especially in the night. He must also be familiar with all R. J. MCGUIRE, E. H. Woods, E. S. Woods, dangers that are permanently located in WILLIAM MOORE and J. S. McFerren, states-islands. V. et al. between different times varied from one side of Is the course of the river, as sand bars, snags, Evidence-sufficiency-boundary sunken rocks or trees, or abandoned vessels or barges. All this he must know and Evidence which goes no further than remember and avoid. To do this he must to raise a doubt as to whether the main be constantly informed of changes in the channel of the Mississippi river has not at current of the river, of sand bars newly land No. 76 to the other will not support a made, of logs, or snags, or other objects new-finding that this channel ran to the west of ly presented, against which his vessel might be injured. In the active life and changes made by the hand of man or the action of the elements in the path of his vessel, a year's absence from the scene impairs his capacity, his skilled knowledge, very seriously in the course of a long voyage." It would not be strange if the jury found that a captain engaged in the navigation of the waters of Lake Superior was guilty of negligence in not keeping himself informed of changes going on from time to time in the different harbors which he was likely the island when Mississippi was admitted to the Union, and was therefore a part of that state, where such finding is opposed by testimony from memory and tradition, by the presumption from the establishment of the channel on the east side for a time runing back nearly or quite to the admission of Arkansas, and by consensus of action on the part of the two states concerned and the United States. [No. 222.] Argued and submitted March 1 and 4, 1907. APPEAL from the Circuit Court of the 1847, 1848, and 1849 there were purchased United States for the Eastern District of Arkansas to review a decree dismissing, for want of jurisdiction, a bill to quiet and remove a cloud upon the title to Island No. 76 in the Mississippi river. Reversed. See same case below, 142 Fed. 787. The facts are stated in the opinion. Messrs. U. M. Rose, D. E. Myers, W. E. Hemingway, G. B. Rose, Lem Banks, and J. W. Apperson for appellants. Messrs. J. M. Moore, Charles Scott, E. H. Woods, and Alexander Y. Scott for appellees. of a great part of the island at the United States land office in Helena, Arkansas, and certificates and patents were issued by the United States government. The titles thus created are not attacked, but are said to have been lost by the Mississippi tax sale hereafter mentioned. The small remnant was conveyed by the United States to Arkansas ten years later by a patent under the swamp land act. Arkansas regularly taxed the island as far back as its books are preserved, and presumably before. The above-mentioned greater part was forfeited for taxes to the state. Then the state in Mr. Justice Holmes delivered the opin- stituted a statutory proceeding to decide ion of the court: This is a bill to quiet and remove a cloud upon the title to land alleged to be in Arkansas. The circuit court found that the land was in Mississippi and dismissed the case for want of jurisdiction. 142 Fed. 787. The judge made the usual certificate, and an appeal was taken to this court. The land in controversy is Island No. 76, formerly called Chapeau island, in the Mississippi river, and whether it is part of Arkansas or of Mississippi depends, as both parties agree, on what was the western boundary of Mississippi, as established by the act of Congress admitting that state to the Union. Act of March 1, 1817, chap. 23 (3 Stat. at L. 348). In that act the state is bounded by a line "beginning on the river Mississippi" and running around the state "to the Mississippi river, thence up the same to the to the beginning." The plaintiffs contend that these words should be construed to bound the state on the eastern bank of the river, while the defendants maintain that they refer to the middle of the main channel, as it then was. The chief difference is upon the question of fact whether the main channel was to the east or west of the island in 1817; but as the construction of the statute also is in dispute, there is jurisdiction, and Joy v. St. Louis, 201 U. S. 332, 50 L. ed. 776, 26 Sup. Ct. Rep. 478, cited by the appellees, does not apply. We shall assume for the purposes of decision that the boundary is the middle of the main channel as it was in 1817, and address ourselves at once to the chief is Some facts are clear. Arkansas was admitted to the Union by act of Congress of June 15, 1836, chap. 100 (5 Stat. at L. 50). This act purported, in terms, to bound the new state by the middle of the main channel; that is, of course, as it then was, so that if at that time the channel was on the Mississippi side, the act of the government imported an understanding that the boundary of Mississippi went no farther. In whether the forfeiture was valid, and, if not, to collect the taxes by a new sale. A new sale was ordered in due time, made, and the deed approved by the court. The plaintiffs are purchasers from the grantor under this sale and also from grantees of the residue patented under the swamp land act to the state. Thus it is apparent that Arkansas has exercised dominion over the island from 1847 down to recent times. The state of Mississippi, on the other hand, only recently, and since the channel has changed, as we shall state, has attempted to tax it. In 1891 it purported to sell the land for taxes, but the next year the money paid was refunded to the purchaser, on the certificate of the governor and attorney general of the state that the land was "within the limits, and the property, of the state of Arkansas." Later, in 1899, the state changed its mind and sold the land for taxes again, the defendants getting their title from this sale, but the possession of Arkansas and the plaintiffs under it has remained. In view of these conditions there may be a doubt whether courts should go beyond them in a private controversy, rather than leave it to the state of Mississippi, if dissatisfied, to bring a suit in its own name. See Jones v. United States, 137 U. S. 202, 34 L. ed. 691, 11 Sup. Ct. Rep. 80; Foster v. Neilson, 2 Pet. 253, 7 L. ed. 415; Filhiol v. Torney, 194 U. S. 356, 48 L. ed. 1014, 24 Sup. Ct. Rep. 698; Bedel v. Loomis, 11 N. H. 9; State v. Dunwell, 3 R. I. 127; State v. Wagner, 61 Me. 178, 184. But, however this may be the facts stated give us a starting point and raise a presumption which is fortified by some further matters also beyond dispute. The court below finds that "ever since 1839, and probably two or three years before that time, up to the year 1881, the main channel was east of the island in controversy, and, since 1881 up to the present time, west of the island;" the change being |