an the wider its channel the more of this sub- Doubtless the variance at different seasurface water there will be. If the entire sons of the year is more regular and more volume of water passing down the surface pronounced than in those streams whose was taken away the subsurface water would sources are only slightly elevated and the gradually disappear, and in that way the rise and fall of whose waters is mainly owamount of the flow in the surface channel ing to rains. Contrasting, for instance, the coming from Colorado into Kansas may Hudson with the Missouri, illustrates this. affect the amount of water beneath the sub- When the June flood comes down the Missurface. As subsurface water it percolates souri river it is a mighty torrent. One can on either side as well as moves along the stand on the bluffs at Kansas City and see course of the river, and the more abundant an enormous volume of water, extending in the subsurface water the further it will width from 2 to 5 miles to the bluffs on the reach in its percolations on either side as other side of the river, flowing onward with well as more distinct will be its movement tremendous velocity and force; and yet at down the course of the stream. The testi- other times the entire flow of the Missouri mony, therefore, given in reference to this river passes between two piers of the railsubsurface water, its amount and its flow, road bridge across the river at that point. bears only upon the question of the dimi. No such difference between high and low nution of the flow from Colorado into Kan water appears in the Hudson. In the days sas caused by the appropriation in the for- when navigation west of the Mississippi was mer state of the waters for the purposes of largely by steamboats on the Missouri river, irrigation. it was familiar experience for the flat-botEqually untenable is the contention of tomed steamboats, drawing but little water, Colorado that there are really two rivers, to be aground on sandbars and detained for one commencing in the mountains of Colo- hours in efforts to cross them. Gen. Donirado and terminating at or near the state phan commanded expedition which line, and the other commencing at or near marched from Fort Leavenworth, in 1846, the place where the former ends, and, from up the Arkansas valley and into the terrisprings and branches, starting a new stream tory of New Mexico. He did not enter the to flow onward through Kansas and Okla- valley again until shortly before his death, homa towards the Gulf of Mexico. From in 1887, and, when asked what he recogtime immemorial the existence of a single nized, replied that there were one or two continuous river has been recognized by natural objects, like Pawnee rock, that apgeographers, explorers, and travelers. That peared as they did when he marched up the ( there is a great variance in the amount of valley; the river was the same, but all else water flowing down the channel at different was changed; and the valley, instead of beseasons of the year and in different years is ing destitute of human occupation, was undoubted; that at times the entire bed of filled with farm houses and farms, villages the channel has been in places dry is evi- and cities,-something that he had never ex. dent from the testimony. In that way it pected would be seen in his day. may be called a broken river. But this is a Summing up our conclusions, we are of fact common to all streams having their or the opinion that the contention of Colorado igin in a mountainous region, and whose of two streams cannot be sustained; that volume is largely affected by the melting of the appropriation of the waters of the Arthe mountain snows. Thus, from one of kansas by Colorado, for purposes of irrigacomplainant's exhibits furnished by the tion, has diminished the flow of water into United States Geological Survey, the mean the state of Kansas; that the result of that monthly flow at Cañon City at the mouth appropriation has been the reclamation of of the Royal gorge for the years 1890, 1895, large areas in Colorado, transforming thouand 1900 is as follows: sands of acres into fertile fields, and renArkansas River-Cañon City. Mean Monthly vation when otherwise they would have con dering possible their occupation and cultiDischarge in Second Feet. tinued barren and unoccupied; that while the influence of such diminution has been of 1890 1895 1900 perceptible injury to portions of the Arkan sas valley in Kansas, particularly those porJanuary 310 344 a 345 February 361 tions closest to the Colorado line, yet, to March 320 471 April the great body of the valley it has worked 736 Мау. 2,090 1,506 2,251 little, if any, detriment, and regarding the June. 2,611 1,900 3,492 July 1,571 1,413 891 interests of both states, and the right of August 670 1,095 273 each to receive benefit through irrigation September 519 635 October 531 505 241 and in any other manner from the waters November. 522 499 266 of this stream, we are not satisfied that December 502 444 298 Kansas has made out a case entitling it to a Approximate. a decree. At the same time it is obvious 363 a 353 477 868 211 that if the depletion of the waters of the der the contract, where such release was ex. river by Colorado continues to increase | ecuted in performance of the contract rethere will come a time when Kansas may quirement that the last payment should be justly say that there is no longer an equit; proved by the Secretary of the Navy should made able division of benefits, and may rightfully be given of all claims of any kind or decall for relief against the action of Colorado, scription under or by virtue of said contract. its corporations and citizens, in appropriating the waters of the Arkansas for irriga [Nos. 263 and 264.) tion purposes. The decree which, therefore, will be en- Argued April 18, 19, 1907. Decided May 13, tered, will be one dismissing the petition of 1907. the intervener, without prejudice to the rights of the United States to take such CROSS APPEALS from the Court of action as it shall deem necessary to pre- to the builders of a battle ship a portion of Claims to review a judgment awarding serve or improve the navigability of the Ar- to the builders of a battle ship a portion of kansas river. The decree will also dismiss the claims alleged to grow out of a delay the bill of the state of Kansas as against caused by the Federal government. Reall the defendants, without prejudice to the versed and remanded with instructions to right of the plaintiff to institute new pro enter judgment for the United States. ceedings whenever it shall appear that, See same case below, 41 Ct. Cl. 164. through a material increase in the depletion Statement by Mr. Justice Brewer: of the waters of the Arkansas by Colorado, On November 19, 1890, the William its corporations or citizens, the substantial interests of Kansas are being injured to the Cramp & Sons Ship & Engine Building Comextent of destroying the equitable appor-ed States to construct what was called pany entered into a contract with the Unittionment of benefits between the two states “Coast-line Battle Ship No. 1,” afterwards resulting from the flow of the river. Each known as the battle ship Indiana, for the party will pay its own costs. In closing, we may say that the parties to and ready for delivery to the United States In closing, we may say that the parties to sum of $3,020,000, the ship to be completed this litigation have approached the investigation of the questions in the most honor-contract. As a matter of fact the vessel was within three years from the date of the able spirit, seeking to present fully the facts not completed and delivered until November as they could be ascertained from witnesses, 19, 1895; but, as the delay was occasioned and discussing the evidence and questions of by the United States, no damages were relaw with marked research and ability. coverable from the building company on acMr. Justice White and Mr. Justice Mccount thereof. On August 10, 1897, the Kenna concur in the result. company commenced this action in the court of claims to recover the sum of $480,231.90. Mr. Justice Moody took no part in the The elements of its claim are thus stated decision of this case. in its petition : For time of organization and plant lost in waiting for armor, materials, etc., to be furnished by United States..... $144,379.50 UNITED STATES, Appt., For special wharfage, 730 days, at 1 74,825.00 For general care and maintenance of ves- watchman, canvas awnings, wooden dust, etc., extra painting, tug bire, WILLIAM CRAMP & SONS SHIP & EN- moving derrick, etc., 730 days, at $135 GINE BUILDING COMPANY, Appt., per day. 98,550.00 Additional cost of insurance. 34,462.53 Interest on money borrowed caused by UNITED STATES. (No. 264.) delays of United States which pro- 60,499.91 Extra trial trip made necessary by con, Release-construction-what claims struction and completion of vessel cluded. being delayed by United States.. 17,514.94 Claims growing out of a delay caused For loss due to running the official trial of "Indiana" with a foul bottom, as, by the Federal government, as well as those owing to the delay caused by the comarising from a change in the specifications, pletion of the vessel, it was impossible to clean and paint the bottom... 50,000.00 were included in a release given to the United States by the builders of a battle Total .... $480,231.90 ship of all and all manner of debts, dues, sum and sums of money, accounts, reckon On May 10, 1894, as appears from the ings, claims and demands whatsoever, in law findings made by the court of claims, an or in equity, for or by reason of, or on ac- agreement was made between the parties by count of, the construction of the vessel un-, which moneys not then due by the terms of in the original contract were paid, the stipula- , form as shall be approved by the Secretary tion in this new agreement being: of the Navy, of all claims of any kind or “But such payment shall not be made un description under or by virtue of said contil the party of the first part has given bond tract; and with approved security conditioned for the "Whereas the final trial of said vessel return to the party of the second part of the was completed on the eleventh day of April, amount so paid, upon demand being made by 1896; and the Secretary of the Navy therefor, for in “Whereas all the conditions, covenants, demnity of the party of the second part and provisions of said contract have been against loss or injury by reason of such performed and fulfilled by and on the part payment, and, in consideration of such ad- of the party of the first part; vance payment, the party of the first part “Now, therefore, in consideration of the hereby releases the party of the second part premises, the sum of forty-one thousand one from all and every claim for loss or damage hundred and thirty-two dollars and eighty. hitherto sustained by reason of any failure six cents ($41,132.86), the balance of the on the part of the party of the second part aforesaid special reserve ($60,000), to to comply with its contract, or on account which the party of the first is entitled, being of any delay hitherto occasioned by the ac- to me in hand paid by the United States, tion of said party of the second part.” represented by the Secretary of the Navy, The time intervening between this agree the receipt whereof is hereby acknowledged, ment and the final completion and delivery The William Cramp & Sons Ship & Engine of the vessel was one year, six months, and Building Company, represented by me, nine days; and that time was made the ba- Charles H. Cramp, president of said corsis for the computation of damages, as will poration, does hereby, for itself and its sucappear hereafter. cessors and assigns, and its legal representaOn May 18, 1896, after the completion and tives, remise, release, and forever discharge delivery of the vessel, the balance of the the United States of and from all and all money due on the contract was paid, and a manner of debts, dues, sum and sums of release and receipt executed by the building money, accounts, reckonings, claims, and decompany in the following terms: mands whatsoever, in law or in equity, for “Whereas, by the eleyenth clause of the or by reason of or on account of the concontract dated November 19, 1890, by and struction of said vessel under the contract between The William Cramp & Sons Ship aforesaid. & Engine Building Company, a corporation “In witness whereof I have hereunto set created under the laws of the state of Penn- my hand and affixed the seal of The William sylvania, and doing business at Philadel-Cramp & Sons Ship & Engine Building Comphia, in said state, represented by the pres- pany this eighteenth day of May, A. D. 1896. ident of said company, party of the first [Seal.] Chas. H. Cramp, President. part, and the United States, represented by Attest: John Dougherty, Secretary.” the Secretary of the Navy, party of the The court of claims found for the claim. second part, for the construction of a sea- ant in the following items and amounts: going coast-line battle ship of about 10,000 tons displacement, which, for the purpose of the reasonable value for the use of the claimant's yard, machinery, and tools, said contract, is designated and known as and for superintendence in the con*Coast-line Battle Ship No. 1,' it is agreed struction of the vessel, including the general upkeep of the yard chargeable that a special reserve of sixty thousand to the Indiana, $3,000 per month, dollars ($60,000) shall be held until the The reasonable cost of the proper care making -... $54,887.67 vessel shall have been finally tried; provided and protection of the vessel during the that such final trial shall take place within two years' delay, including expense of cleaning the bottom, furnishing matefive months from and after the date of the rial and painting, temporary awnings preliminary or the conditional acceptance and tents over caps left for the intro duction of turrets, additional scaling of the vessel; and to remove rust before painting, electric "Whereas, by the sixth paragraph of the lighting, keeping up steam to prevent freezing of valves, wetting down decks, nineteenth clause of said contract it is fur- going over machinery, and keeping ther provided, that when all the conditions, vessel free from snow, dust, ice, and 36,591.78 covenants, and provisions of said contract Wharfage from May 10, 1894, including shall have been performed and fulfilled by the dredging of a basin to accommo- 17,808.00 and on the part of the party of the first The proportionate expense, for the pepart, said party of the first part shall be riod from May 10, 1894, of the cost of insurance during the two years' delay 26,272.55 entitled, within ten days after the filing and acceptance of its claim, to receive the $135,560.00 said special reserve or so much thereof as And rendered judgment against the governit may be entitled to on the execution of ment for $135,560. From this judgment a final release to the United States in such both parties appealed. Attorney General Bonaparte, Assistant scription." All the claims for which allow | ” Attorney General Van Orsdel, and Mr. ances were made in the judgment of the Charles C. Binney for the United States. court of claims come within one or the oth Messrs. John C. Fay, Holmes Conrad, er of these clauses. It may be that, strictEaton Creecy, and Eppa Hunton for the ly speaking, they were not claims under the Cramp Company. contract, but they were clearly claims by virtue of the contract. Without it no such Mr. Justice Brewer delivered the opinion claims could have arisen. Now, it having of the court: been provided in advance that the contract This case turns on the release executed should be closed up by the execution of a by the building company on May 18, 1896. release of this kind, it cannot be that the It is contended by the claimant that it ap- company, when it signed the release, underplies simply to claims springing out of the stood that some different kind of release was construction of the vessel, and therefore has contemplated. It must have understood no application to the matters for which the that it was the release required by the conjudgment was rendered against the govern-tract,-a release intended to be of all claims ment. The word “construction,” the com- of any kind or description under or by virpany says, is limited to the mere matter of tue of the contract,—and that the form of building; that is, the furnishing of mate words which the Secretary had approved was rials, the doing of work, and does not in used to express that purpose. With that reclude delays or other matters outside the lease stipulated for in the contract the combuilding of the vessel. pany signed the instrument of May 18, To rightly understand the scope of this 1896, which in terms purported to "remise, release we must consider the conditions of release, and forever discharge the United the contract, and especially the clause in States of and from all and all manner of it which calls for a release. The contract debts, dues, sum and sums of money, acwas a large one, the price to be paid for the counts, reckonings, claims and demands work and material being over $3,000,000, whatsoever, in law or in equity, for or by and the contract was evidently designed to reason of or on account of the construction cover all contingencies. Provision was made of said vessel under the contract aforesaid." for changes in the specifications, for penal. Now, whatever limitation may be placed · ties on account of delays of the contractor, upon the words "for” or “on account of” the deductions in price on certain conditions, construction, the provision for the release approval of the work by the Secretary of of all claims and demands whatsoever, "by the Navy, forfeiture of the contract, with reason of the construction of the vessel unauthority to the Secretary to complete the der the contract aforesaid,” is a recogvessel. The nineteenth clause contains the nition of the contract, and includes claims stipulations as to the amounts and times of which arise by reason of the construction of payment with authority for increase of the the vessel under it. “By reason of” may gross amount upon certain conditions. The well be considered as equivalent to "by virsixth paragraph of this clause makes special tue of.” It is only by reason of the perprovision for the last payment, to be made formance of the contract in the construction “when all the conditions, covenants, and of the vessel that these claims arise. But provisions of said contract shall have been for the contract, and the construction of the performed and fulfilled by and on the part vessel under it, there would be no such of the party of the first part” and “on the claims. No payment of moneys not due is execution of a final release to the United necessary to sustain this release. It is unStates in such form as shall be approved der seal, and the contract is itself full conby the Secretary of the Navy, of all claims sideration. As of significance it must be of any kind or description under or by vir- borne in mind that the release referred spetue of said contract.” Evidently the parties cifically to the provisions in the sixth paracontemplated and specially provided by this graph of the nineteenth clause of the constipulation that the whole matter of the tract, which provided for the character of contract should be ended at the time of the the release. the release. Indeed, the general language final release and the last payment. That of the release itself and the number of which was to be released was “all claims of words of description in it show that it was any kind or description under or by virtue the intent of the Secretary of the Navy to of said contract." Manifestly, included have a final closing of all matters arising within this was every claim arising not under or by virtue of the contract. merely from a change in the specifications, Stipulations of this kind are not to be but also growing out of delay caused by the shorn of their efficiency by any narrow, techgovernment. The language is not alone nical, and close construction. The general “claims under,” but “claims by virtue” of language “all and all manner of debts,” etc. the contract,-claims of any kind or de indicates an intent to make an ending of v . every matter arising under or by virtue of from the Supreme Court of the United the contract. If parties intend to leave States to a state court. I some things open and unsettled, their intent so to do should be made manifest. Here [No. 262.] was a contract involving three millions of dollars, and after the work was done, the Argued April 12, 15, 1907. Decided May 13, 1907. vessel delivered and accepted, and this release entered, claims are presented amount IN N ERROR to the Supreme Court of the ing to over $500,000. Surely the parties state of Arkansas to review a decree never intended to leave such a bulk of un- which affirmed a decree of the Chancery settled matters. As bearing upon this mat-Court of Poinsett County, in that state, dister it may be noticed that while the release missing the bill in a suit to quiet title. was signed and the contract between the Dismissed for want of jurisdiction. building company and the government closed See same case below, 77 Ark. 338, 92 S. on May 18, 1896, this action was not W. 534. brought until August 10, 1897,-nearly a The facts are stated in the opinion. year and a quarter thereafter. Messrs. Henry D. Ashley, Sanford B. Ladd, We are of opinion that the parties, by William S. Gilbert, Denton Dunn, and Robthe release of May 18, 1896, which was ex- ert S. Rodgers for plaintiff in'error. ecuted in performance of the requirements Mr. N. W. Norton for defendants in error. of the original contract, settled all disputes between the parties as to the claims sued Mr. Chief Justice Fuller delivered the upon. opinion of the court: The judgment of the Court of Claims is This was a bill to remove a cloud from reversed and the case remanded, with in- plaintiff in error's alleged title to certain structions to enter a judgment on the find- lands described in the complaint, and to ings for the defendant. that end to have the conveyances under which defendants in error claimed declared Mr. Justice McKenna and Mr. Justice void, filed by plaintiff in error in the chanMoody took no part in the decision of this cery court of Poinsett county, Arkansas, case. January 29, 1903. The chancery court rendered a decree dismissing the bill, and the case was carried to the supreme court of CHAPMAN & DEWEY LAND COMPANY, the state, where the decree was affirmed. Plff. in Err., 77 Ark. 338, 92 S. W. 534. Thereupon this v. writ of error was allowed. CHARLES H. BIGELOW, N. P. Bigelow, L. The supreme court of the state stated P. Walker, and F. H. Hartshorn. the case in brief thus: “Plaintiff claims title under an act Error to state court-Federal question-ri- of Congress entitled 'An Act to Enparian rights, able the State of Arkansas and Other 1. A decision of a state court, in a suit States to Reclaim the "Swamp Lands” to quiet title, that the grantee from the within Their Limits,' approved SeptemUnited States, through the state of Arkan ' sas and other grantors, took no title by ber 28, 1850. [9 Stat. at L. 519, chap. virtue of riparian rights to lands lying be- | 84, U. S. Comp. Stat. 1901, p. 1591.] It tween the government meander line and the alleges that, in pursuance of the provisions main channel of a river, which lands the of this act, surveyed sections and parts of court finds to be swampy, checked by fractional sections in fractional township bayous, subject to inundation, but reclaim- 12 north of the base line, in range 6 east of able to some extent for agricultural pur- the fifth principal meridian, and in town. poses, is not reviewable in the Supreme ship 12 north of the base line, in range 7 Court of the United States. * Error to state court—Federal question, Poinsett county, in this state, were duly east of the fifth principal meridian, and in questions of fact. 2. The decisions of state courts upon selected, approved, and patented to the state questions of fact are not reviewable by writ of Arkansas, as a part of the swamp land of error to those courts from the Supreme grant; that certain of these lands were Court of the United States. + conveyed by the state of Arkansas, on the Error to state court-Federal question-rul- 12th day of June, 1871, to Moses S. Beach; ings on evidence. that plaintiff acquired and is the owner of 3. The exclusion from evidence in a suit these lands so conveyed to Beach as well as to quiet title of a letter written by the Sec- certain other of the lands which were deeded to of the General Land Office, which is clearly to the state of Arkansas by the United States; res inter alios acta, can present no Federal that many of the legal subdivisions of secquestion which will sustain a writ of error tions so acquired by plaintiff were bounded *Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Courts, § 1065. Ed. Note.-For cases in point, see vol. 13, Cent, Dig. Courts, $8 1089, 1090. Ed. Note.-For cases in point, see vol. 13, Cent, Dig. Courts, $8 1049, 1054. |
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