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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 The thing relied upon in this case was the proceedings and fraud in respect thereof controlling effect as res judicata of a decree and in the subsequent transactions, which rendered between the parties in another might have enabled the railroad company, suit. And the real issue was as to the juupon a direct appeal, to have avoided the risdiction of the court to render the decree. decree of sale, or which, if sustained on The determination of that question did not this bill, might have justified the circuit involve the construction or application of court in setting aside that decree, it does the Constitution of the United States. The not follow that the construction or appli- circuit court held that the court rendering cation of the Constitution of the United the first decree had jurisdiction to deterStates was involved in the case in the sense mine the ownership of the ore bodies underof the statute. In passing upon the validi. neath the surface of the Skookum claim. ty of that decree the circuit court decided The court thus really decided a question of no question of the construction or the ap- res judicata between the parties upon genplication of the Constitution, and, as we eral principles of law. And it does not conhave said, no such question was raised for vert the decision into one involving the conits consideration. Our conclusion is that

Our conclusion is that struction and application of the Constituthe motion to dismiss the appeal must be tion of the United States to aver, argumensustained.”

tatively, that to give such effect to a forThe cases cited were followed and the mer adjudication under the circumstances principles deducible therefrom applied in amounts to depriving a party of due procCosmopolitan Min. Co. v. Walsh, 193 U. S. ess of law. 460, 48 L. ed. 749, 24 Sup. Ct. Rep. 489. In We are of opinion, therefore, that the that case it was contended, in a replication case does not come within the 5th section of to an answer setting up certain former judg- the circuit court of appeals act as one diments rendered against the complainant as rectly appealable to this court. a bar to the suit brought by it to recover The appeal is dismissed for want of ju. possession of the real property sold under risdiction in this court. 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, Piff. the state courts upon the corporation's agent

in Err., in the suits where the judgments were ren

UNITED STATES OF AMERICA. dered was unauthorized by the laws of the state or the general principles of law. It

It Collision-with government breakwaterwas held that the case was not one directly negligence. involving the construction or application of 1. A captain engaged in navigating the the Federal Constitution within the mean waters of Lake Superior cannot, as a mating of g 5 of the act of March 3, 1891, and ter of law, be said to be free from negligence the writ of error was dismissed.

in colliding with an uncompleted extension We think the principles involved in these of a government breakwater in an impor

tant harbor in that lake, where he had the cases decisive against jurisdiction in this court of this appeal. It is true that it is if known, would have prevented the col

means of ascertaining the conditions, which, averred in the sixth paragraph of the lision. amended answer above set forth that, in Appeal-review of facts.

the action to determine title to the ore 2. The determination of the jury, apbodies, the mining company had the right, proved by the trial court and by the cirunder the laws and Constitution of the cuit court of appeals, respecting the negliUnited States, to a trial by jury, of which gence of the captain of a steamer in runit was deprived; and that so much of the ning into and injuring an uncompleted exdecree as undertook to quiet title to the tension of a government breakwater in a ore bodies was rendered without jurisdic- harbor, and respecting the contributory neg. tion, because the same constituted and was ligence of the government, cannot be disin fact an attempt to deprive the defendant turbed by the Federal Supreme Court if

there is any evidence upon which it can be of its property without due process of law,

rested.* in violation of the Federal Constitution. .

[No. 220.] But these averments of conclusions as to constitutional rights do not change the real Argued March 1, 1907. Decided March 25, character of the controversy and make it

1907.

V.

*Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 3948. of , 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 On the evening named the Shenandoah Fed. 315.

loaded a cargo of iron ore at Superior, Wis. The facts are stated in the opinion. consin, and proceeded to Two Harbors, to take

Messrs. Charles E. Kremer and Hermon in tow a barge that was being loaded there. A. Kelley for plaintiff in error.

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 On April 1, 1902, the United States com to enter port, as she had formerly done, menced this action in the circuit court of close to the easterly breakwater. When the United States for the district of Minne- she had approached within about 200 feet sota to recover for injuries charged to have the surf was seen breaking over the extenbeen done through the negligence of the sion of the breakwater. Her engines were Davidson Steamship Company to a govern- promptly stopped and reversed, but, notment breakwater at Two Harbors, Lake Su. withstanding this, she struck this extension perior. The defendant answered, denying about 125 feet from the fixed red light, the negligence, and alleging that the re- and did considerable damage to it, but with. sult was due to the negligence of the govern- out injury to herself. The port of Two ment, the plaintiff. No question was made Harbors is on the north side of Lake Suas to the amount of the injury. Trial was perior, about 27 miles from Duluth, and one had before a jury, which returned a ver of the most important iron ore loading dict for the government. Judgment there- points on the Great Lakes. on was entered by the circuit court. This Now, whether the injury was the result judgment was affirmed by the circuit court of negligence, and which party was guilty of appeals for the eighth circuit (73 C. C. of negligence, are questions of fact prop. A. 425), and from that court brought here erly determinable by a jury. These ques. on writ of error.

tions 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 and an examination of them shows that village of Two Harbors, and is an open very properly counsel for the steamship bay, across the mouth of which there are company considered them not sufficiently breakwaters extending from either shore, important to justify any discussion. running in an easterly and westerly direc- It is well, before noticing the testimony, tion, and leaving an open space as an en- to consider the extent to which our inquiry trance to the iron ore and other docks in the may properly go. The settled rule is that bay. The breakwater extending from the where negligence is a mere question of fact, easterly side had been constructed for a and nothing appears which is negligence number of years, extending into the bay for per se, the determination of the question is a distance of about 750 feet, and its outer peculiarly the province of a jury, and its

, end indicated in the nighttime by a fixed, conclusions will not be disturbed unless it large red light, 15 or 20 feet high. In 1899 is entirely clear that they were erroneous. the government projected an extension of Courts do not approach the question as this breakwater of about 300 feet in length, an original one, and consider whether, in and at an angle of 45 degrees from the orig. their judgment, the testimony does or does inal breakwater. At the time of the in- not prove negligence, but accept the deterjury this extension, composed of wooden mination of the jury, if there is any evi. cribs filled with stone, had been carried to dence upon which it can be rested. This its full length, but not built up to its in- is the general rule in respect to all mere tended height, and, in fact, rising only a few questions of fact. Authorities in this court,

27 S. 0.-31.

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. Sioux City & P. R. Co. v. Stout, 17 Wall. Parsons v. Bedford, 3 Pet. 446, 7 L. ed. 736; 657, 21 L. ed. 745, was an action to recover Barreda v. Silsbee, 21 How. 167, 16 L. ed. damages in behalf of a boy, six years of 93; Mercantile Mut. Ins. Co. v. Folsom, 18 age, for injuries sustained upon a turn- Wall. 249, 21 L. ed. 833." table belonging to the railroad company. In Dunlap v. Northeastern R. Co. 130 This turntable was in an open space, about U. S. 649, 652, 32 L. ed. 1058, 1059, 9 Sup. 80 rods from the company's depot, in a vil. Ct. Rep. 647, 648, this was the ruling: lage of from 100 to 150 persons. The rail- “The circuit court erred in not submitting road ground was not inclosed or visibly the question of contributory negligence to separated from the adjoining property, and the jury, as the conclusion did not fol. was about three quarters of a mile dis- low, as matter of law, that no recovery tant from the house of the child's parents. could be had upon any view which could The boy, with two older boys, went to the be properly taken of the facts the evidence turntable and commenced playing on it. Ittended to establish. Kane v. Northern C. was not attended or guarded by any serv- R. Co. 128 U. S. 31, 32 L. ed. 339, 9 Sup. ant of the company. It was not fastened or Ct. Rep. 16; Jones v. East Tennessee, v. locked, and revolved easily on its axis. & G. R. Co. 128 U. S. 443, 32 L. ed. 478, 9 While so playing he was injured. The jury Sup. Ct. Rep. 118." found the company guilty of negligence. In In Richmond & D. R. Co. v. Powers, 149 affirming the judgment this proposition was U. S. 43, 45, 37 L. ed. 642, 643, 13 Sup. stated (664, L. ed. 749):

Ct. Rep. 748, 749, the jury having found the "It is this class of cases and those akin railroad company guilty of negligence, we to it that the law commits to the decision sustained the verdict and judgment, saying: of a jury. Twelve men of the average of "It is well settled that where there is the community, comprising men of educa- uncertainty as to the existence of either tion and men of little education, men of negligence or contributory negligence, the learning and men whose learning consists question is not one of law, but of fact, and only in what they have themselves seen to be settled by a jury; and this, whether and heard,—the merchant, the mechanic, the uncertainty arises from a conflict in the farmer, the laborer,—these sit together, the testimony, or because the facts, being consult, apply their separate experience of undisputed, fair-minded men will honestly the affairs of life to the facts proven, and draw different conclusions

them. draw a unanimous conclusion. This average Sioux City & P. R. Co. v. Stout, supra; judgment thus given it is the great effort Washington & G. R. Co. v. McDade, 135 U. of the law to obtain. It is assumed that S. 554, 34 L. ed. 235, 10 Sup. Ct. Rep. 1044; twelve men know more of the common af- Delaware, L. & W. R. Co. v. Converse, 139 fairs of life than does one man, that they U. S. 469, 35 L. ed. 213, 11 Sup. Ct. Rep. can draw wiser and safer conclusions from 569." admitted facts thus occurring than can a From these authorities, and many more single judge.”

of a kindred nature could be cited, it is In New York C. & H. R. R. Co. v. Fraloff, obvious that the question for us to consider 100 U. S. 24, 31, 25 L. ed. 531, 534, one ques. is whether there was testimony from which tion was as to the value of property for the jury might rightfully find the defendant which the company was responsible. Sus-guilty of negligence. It appears that the taining a judgment against it, we said: captain of the steamship had been for many

:"If the jury acted upon a gross mistake years on the lakes, and that he was acting of facts, or were governed by some imas pilot of the ship at the time of the colproper influence or bias, the remedy there- lision. The harbor was one of great imfor rested with the court below, under its portance, although he had not been in it general power to set aside the verdict. But for over a year. He knew that harbor imthat court, finding that the verdict was provements on the Great Lakes were beabundantly sustained by the evidence, and ing made by the government, that informathat there was no ground to suppose that tion of the condition of those improvements the jury had not performed their duty im- was given from time to time by circulars partially and justly, refused to disturb the from the Departments, and still made no verdict, and overruled a motion for new efforts to ascertain the then condition of trial. Whether its action in that particular the harbor, the only chart he had being an was erroneous or not, our power is restricted old one. In addition to the fact that he by the Constitution to the determination of knew where information could be obtained, the questions of law arising upon the rec- might have assumed that he would be likely ord. Our authority does not extend to alto be sent to any one of the many impor

from

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 ascertaining the facts, could properly be reto him at his postoffice address, although he garded as negligence. Clearly, it could not states that he failed to receive them, and be held as matter of law not to be so. relied upon the knowledge which he had It is true he was apparently misled by from his visit of more than a year thereto- the lights on the breakwater, and we do fore, and upon what he should find as he not mean to intimate that there was no evientered the harbor. Now there is an ob-dence from which the jury would have been ligation on all persons to take the care warranted in finding that the government which, under ordinary circumstances of the was guilty of negligence in the way in case, a reasonable and prudent man would which it left those lights. But no omission take, and the omission of that care consti- or negligence on the part of the government tutes negligence. It was said by Mr. Jus- avoids the fact that there was testimony tice McLean, delivering the opinion in Cul- from which the jury was justified in findbertson v. The Southern Belle, 18 How. 584, ing the captain guilty of negligence, and for 587, 15 L. ed. 493, 495:

that negligence the steamship company was "When a steamer is about to enter a har-responsible. The jury might have thought

a bor great caution is required. There being that if he had kept himself properly inno usage as to an open way, the vigilance formed in reference to the condition of that is thrown upon the entering vessel. Ordi- as of other important harbors he would not nary care, under such circumstances, will have been misled by the condition of the not excuse a steamer for a wrong done.” lights. At any rate, the verdict of the

In Atlee v. Northwestern Union Packet jury was against the contention of contribCo. 21 Wall. 389, 396, 22 L. ed. 619, 621, utory negligence on the part of the governMr. Justice Miller, commenting on the duty ment, and the jury was the tribunal to of a pilot of a river steamer, makes these determine this, as well as the question of observations:

negligence. We could not set aside the “But the pilot of a river steamer, like verdict of the jury, approved as it was by the harbor pilot, is selected for his personal the trial court and the court of appeals, knowledge of the topography through which without ourselves exercising the function he steers his vessel. In the long course of of triers of fact, when, under the law, such a thousand miles in one of these rivers, he questions are committed to the determinamust be familiar with the appearance of tion of a jury. the shore on each side of the river as he The judgment is affirmed. 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 lit- WILLIAM MOORE and J. S. McFerren, tle use to him. He must know where the Partners, Doing Business under the Firm

Name of Moore & McFerren, Appts., navigable channel is, in its relation to all these external objects, especially in the R. J. MCGUIRE, E. H. Woods, E. S. Woods, night. He must also be familiar with all

et al. dangers that are permanently located in the course of the river, as sand bars, snags, Evidence-sufficiency-boundary between sunken rocks or trees, or abandoned ves- states-islands. sels 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

different times varied from one side of Is. 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 the island when Mississippi was admitted be injured. In the active life and changes to the Union, and was therefore a part of made by the hand of man or the action of that state, where such finding is opposed by the elements in the path of his vessel, a testimony from memory and tradition, by year's absence from the scene impairs his the presumption from the establishment of capacity, his skilled knowledge, very seri- the channel on the east side for a time runously in the course of a long voyage.”

ing back nearly or quite to the admission of It would not be strange if the jury found Arkansas, and by consensus of action on the that a captain engaged in the navigation of part of the two states concerned and the the waters of Lake Superior was guilty of negligence in not keeping himself informed

[No. 222.] of changes going on from time to time in Argued and submitted March 1 and 4, 1907. the different harbors which he was likely

Decided March 25, 1907.

v.

A

PPEAL from the Circuit Court of the | 1847, 1848, and 1849 there were purchases

United States for the Eastern District of a great part of the island at the United of Arkansas to review a decree dismissing, States land office in Helena, Arkansas, and for want of jurisdiction, a bill to quiet and certificates and patents were issued by the remove a cloud upon the title to Island United States government. The titles thus No. 76 in the Mississippi river. Reversed. created are not attacked, but are said to

See same case below, 142 Fed. 787. have been lost by the Mississippi tax sale The facts are stated in the opinion. hereafter mentioned. The small remnant

Messrs. U. M. Rose, D. E. Myers, W. E. was conveyed by the United States to ArHemingway, G. B. Rose, Lem Banks, and kansas ten years later by a patent under J. W. Apperson for appellants.

the swamp land act. Arkansas regularly Messrs. J. M. Moore, Charles Scott, E. taxed the island as far back as its books H. Woods, and Alexander Y. Scott for ap- are preserved, and presumably before. The pellees.

above-mentioned greater part was forfeited

for taxes to the state. Then the state inMr. Justice Holmes delivered the opin- stituted a statutory proceeding to decide ion of the court:

whether the forfeiture was valid, and, if This is a bill to quiet and remove a cloud not, to collect the taxes by a new sale. upon the title to land alleged to be in A new sale was ordered in due time, made, Arkansas. The circuit court found that and the deed approved by the court. The the land was in Mississippi and dismissed plaintiffs are purchasers from the grantor the case for want of jurisdiction. 142 Fed. under this sale and also from grantees of 787. The judge made the usual certificate, the residue patented under the swamp land and an appeal was taken to this court. act to the state.

The land in controversy is Island No. 76, Thus it is apparent that Arkansas has formerly called Chapeau island, in the exercised dominion over the island from Mississippi river, and whether it is part of 1847 down to recent times. The state of Arkansas or of Mississippi depends, as both Mississippi, on the other hand, only reparties agree, on what was the western cently, and since the channel has changed, boundary of Mississippi, as established by as we shall state, has attempted to tax the act of Congress admitting that state it. In 1891 it purported to sell the land to the Union. Act of March 1, 1817, chap. for taxes, but the next year the money 23 (3 Stat. at L. 348). In that act the paid was refunded to the purchaser, on the state is bounded by a line "beginning on certificate of the governor and attorney the river Mississippi” and running around general of the state that the land was the state “o the Mississippi river, thence within the limits, and the property, of up the same

same to the beginning." The the state of Arkansas." Later, in 1899, plaintiffs contend that these words should the state changed its mind and sold the be construed to bound the state on the land for taxes again, the defendants geteastern bank of the river, while the de- ting their title from this sale, but the fendants maintain that they refer to the possession of Arkansas and the plaintiffs middle of the main channel, as it then was. under it has remained. In view of these The chief difference is upon the question conditions there may be a doubt whether of fact whether the main channel was to courts should go beyond them in a prithe east or west of the island in 1817; but vate controversy, rather than leave it to as the construction of the statute also is the state of Mississippi, if dissatisfied, to in dispute, there is jurisdiction, and Joy v. bring a suit in its own name. See Jones v. St. Louis, 201 U. S. 332, 50 L. ed. 776, 26 United States, 137 U. S. 202, 34 L. ed. 691, Sup. Ct. Rep. 478, cited by the appellees, 11 Sup. Ct. Rep. 80; Foster v. Neilson, 2 does not apply.

Pet. 253, 7 L. ed. 415; Filhiol v. Torney, 194 We shall assume for the purposes of de-U. S. 356, 48 L. ed. 1914, 24 Sup. Ct. Rep. cision that the boundary is the middle of 698; Bedel v. Loomis, 11 N. H. 9; State the main channel as it was in 1817, and v. Dunwell, 3 R. I. 127; State v. Wagner, address ourselves at once to the chief is-61 Me. 178, 184. But, however this may be sue. Some facts are clear. Arkansas was the facts stated give us a starting point admitted to the Union by act of Congress and raise a presumption which is fortified of June 15, 1836, chap. 100 (5 Stat. at L. 50). by some further matters also beyond disThis act purported, in terms, to bound the pute. new state by the middle of the main chan- The court below finds that "ever since nel; that is, of course, as it then was, so 1839, and probably two or three years bethat if at that time the channel was on fore that time, up to the year 1881, the the Mississippi side, the act of the govern- main channel was east of the island in conment imported an understanding that the troversy, and, since 1881 up to the present boundary of Mississippi went no farther. In time, west of the island;" the change being

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