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the wider its channel the more of this subsurface water there will be. If the entire volume of water passing down the surface was taken away the subsurface water would gradually disappear, and in that way the amount of the flow in the surface channel coming from Colorado into Kansas may affect the amount of water beneath the subsurface. As subsurface water it percolates on either side as well as moves along the course of the river, and the more abundant the subsurface water the further it will reach in its percolations on either side as well as more distinct will be its movement down the course of the stream. The testimony, therefore, given in reference to this subsurface water, its amount and its flow, bears only upon the question of the diminution of the flow from Colorado into Kansas caused by the appropriation in the former state of the waters for the purposes of irrigation.

Equally untenable is the contention of Colorado that there are really two rivers, one commencing in the mountains of Colorado and terminating at or near the state line, and the other commencing at or near the place where the former ends, and, from springs and branches, starting a new stream to flow onward through Kansas and Oklahoma towards the Gulf of Mexico. From time immemorial the existence of a single continuous river has been recognized by geographers, explorers, and travelers. That there is a great variance in the amount of water flowing down the channel at different seasons of the year and in different years is undoubted; that at times the entire bed of the channel has been in places dry is evident from the testimony. In that way it may be called a broken river. But this is a fact common to all streams having their origin in a mountainous region, and whose volume is largely affected by the melting of the mountain snows. Thus, from one of complainant's exhibits furnished by the United States Geological Survey, the mean monthly flow at Cañon City at the mouth of the Royal gorge for the years 1890, 1895, and 1900 is as follows:

Arkansas River-Cañon City. Mean Monthly Discharge in Second Feet.

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Doubtless the variance at different seasons of the year is more regular and more pronounced than in those streams whose sources are only slightly elevated and the rise and fall of whose waters is mainly owing to rains. Contrasting, for instance, the Hudson with the Missouri, illustrates this. When the June flood comes down the Missouri river it is a mighty torrent. One can stand on the bluffs at Kansas City and see an enormous volume of water, extending in width from 2 to 5 miles to the bluffs on the other side of the river, flowing onward with tremendous velocity and force; and yet at other times the entire flow of the Missouri river passes between two piers of the railroad bridge across the river at that point. No such difference between high and low water appears in the Hudson. In the days when navigation west of the Mississippi was largely by steamboats on the Missouri river, it was familiar experience for the flat-bottomed steamboats, drawing but little water, to be aground on sandbars and detained for hours in efforts to cross them. Gen. Doniphan commanded an expedition which marched from Fort Leavenworth, in 1846, up the Arkansas valley and into the territory of New Mexico. He did not enter the valley again until shortly before his death, in 1887, and, when asked what he recognized, replied that there were one or two natural objects, like Pawnee rock, that appeared as they did when he marched up the valley; the river was the same, but all else was changed; and the valley, instead of being destitute of human occupation, was filled with farm houses and farms, villages and cities,-something that he had never expected would be seen in his day.

Summing up our conclusions, we are of the opinion that the contention of Colorado of two streams cannot be sustained; that the appropriation of the waters of the Arkansas by Colorado, for purposes of irrigation, has diminished the flow of water into the state of Kansas; that the result of that appropriation has been the reclamation of large areas in Colorado, transforming thousands of acres into fertile fields, and rendering possible their occupation and cultivation when otherwise they would have continued barren and unoccupied; that while the influence of such diminution has been of perceptible injury to portions of the Arkansas valley in Kansas, particularly those portions closest to the Colorado line, yet, to the great body of the valley it has worked little, if any, detriment, and regarding the interests of both states, and the right of each to receive benefit through irrigation and in any other manner from the waters of this stream, we are not satisfied that Kansas has made out a case entitling it to a decree. At the same time it is obvious

quirement that the last payment should be made only when final release in a form apbe given of all claims of any kind or deproved by the Secretary of the Navy should scription under or by virtue of said contract. [Nos. 263 and 264.]

1907.

that if the depletion of the waters of the | der the contract, where such release was exriver by Colorado continues to increase | ecuted in performance of the contract rethere will come a time when Kansas may justly say that there is no longer an equitable division of benefits, and may rightfully call for relief against the action of Colorado, its corporations and citizens, in appropriating the waters of the Arkansas for irrigation purposes. The decree which, therefore, will be en- Argued April 18, 19, 1907. Decided May 13, tered, will be one dismissing the petition of the intervener, without prejudice to the rights of the United States to take such claims to review a judgment awarding CROSS APPEALS from the Court of action as it shall deem necessary to pre- to the builders of a battle ship a portion of serve or improve the navigability of the Arkansas 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 proenter judgment for the United States. ceedings whenever it shall appear that, through a material increase in the depletion of the waters of the Arkansas by Colorado, its corporations or citizens, the substantial

See same case below, 41 Ct. Cl. 164.

Statement by Mr. Justice Brewer:
On November 19, 1890, the William

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 In closing, we may say that the parties to this litigation have approached the investigation of the questions in the most honorgation of the questions in the most honorable spirit, seeking to present fully the facts as they could be ascertained from witnesses, and discussing the evidence and questions of law with marked research and ability.

Mr. Justice White and Mr. Justice McKenna concur in the result.

sum of $3,020,000, the ship to be completed and ready for delivery to the United States within three years from the date of the contract. As a matter of fact the vessel was 19, 1895; but, as the delay was occasioned not completed and delivered until November by the United States, no damages were recoverable from the building company on account thereof. On August 10, 1897, the 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.

UNITED STATES, Appt.,

v.

WILLIAM CRAMP & SONS SHIP & EN-
GINE BUILDING COMPANY. (No. 263.)

WILLIAM CRAMP & SONS SHIP & EN-
GINE BUILDING COMPANY, Appt.,

v.

UNITED STATES. (No. 264.)

Release-construction-what

cluded.

in its petition:

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Additional cost of insurance..
Interest on money borrowed caused by
delays of United States which pro-
longed final settlement...
Extra trial trip made necessary by con-
struction and completion of vessel
being delayed by United States...

34,462.55

60,499.91

17,514.94

Claims growing out of a delay caused For loss due to running the official trial

by the Federal government, as well as those arising from a change in the specifications, were included in a release given to the United States by the builders of a battle ship of all and all manner of debts, dues, sum and sums of money, accounts, reckonings, claims and demands whatsoever, in law or in equity, for or by reason of, or on account of, the construction of the vessel un

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the original contract were paid, the stipulation in this new agreement being:

"But such payment shall not be made until the party of the first part has given bond with approved security conditioned for the return to the party of the second part of the amount so paid, upon demand being made by the Secretary of the Navy therefor, for indemnity of the party of the second part against loss or injury by reason of such payment, and, in consideration of such advance payment, the party of the first part hereby releases the party of the second part from all and every claim for loss or damage hitherto sustained by reason of any failure on the part of the party of the second part to comply with its contract, or on account of any delay hitherto occasioned by the action of said party of the second part."

The time intervening between this agreement and the final completion and delivery of the vessel was one year, six months, and nine days; and that time was made the basis for the computation of damages, as will appear hereafter.

On May 18, 1896, after the completion and delivery of the vessel, the balance of the money due on the contract was paid, and a release and receipt executed by the building company in the following terms:

"Whereas, by the eleventh clause of the contract dated November 19, 1890, by and between The William Cramp & Sons Ship & Engine Building Company, a corporation created under the laws of the state of Pennsylvania, and doing business at Philadelphia, in said state, represented by the president of said company, party of the first part, and the United States, represented by the Secretary of the Navy, party of the second part, for the construction of a seagoing coast-line battle ship of about 10,000 tons displacement, which, for the purpose of said contract, is designated and known as 'Coast-line Battle Ship No. 1,' it is agreed that a special reserve of sixty thousand dollars ($60,000) shall be held until the vessel shall have been finally tried; provided that such final trial shall take place within five months from and after the date of the preliminary or the conditional acceptance of the vessel; and

form as shall be approved by the Secretary of the Navy, of all claims of any kind or description under or by virtue of said contract; and

"Whereas the final trial of said vessel was completed on the eleventh day of April, 1896; and

"Whereas all the conditions, covenants, and provisions of said contract have been performed and fulfilled by and on the part of the party of the first part;

"Now, therefore, in consideration of the premises, the sum of forty-one thousand one hundred and thirty-two dollars and eighty six cents ($41,132.86), the balance of the aforesaid special reserve ($60,000), to which the party of the first is entitled, being to me in hand paid by the United States, represented by the Secretary of the Navy, the receipt whereof is hereby acknowledged, The William Cramp & Sons Ship & Engine Building Company, represented by me, Charles H. Cramp, president of said corporation, does hereby, for itself and its successors and assigns, and its legal representatives, remise, release, and forever discharge the United States of and from all and all manner of debts, dues, sum and sums of money, accounts, reckonings, claims, and demands whatsoever, in law or in equity, for or by reason of or on account of the construction of said vessel under the contract aforesaid.

"In witness whereof I have hereunto set my hand and affixed the seal of The William Cramp & Sons Ship & Engine Building Company this eighteenth day of May, A. D. 1896. [Seal.]

Chas. H. Cramp, President.

Attest: John Dougherty, Secretary." The court of claims found for the claimant in the following items and amounts:

The reasonable value for the use of the

claimant's yard, machinery, and tools,
and for superintendence in the con-
struction of the vessel, including the
general upkeep of the yard chargeable
to the Indiana, $3,000 per month,
The reasonable cost of the proper care
making.

and protection of the vessel during the
two years' delay, including expense of
cleaning the bottom, furnishing mate-
rial and painting, temporary awnings
and tents over caps left for the intro-
duction of turrets, additional scaling
to remove rust before painting, electric
lighting, keeping up steam to prevent
freezing of valves, wetting down decks,
going over machinery, and keeping
vessel free from snow, dust, ice, and
débris, from May 10, 1894-
Wharfage from May 10, 1894, including
the dredging of a basin to accommo-
date the vessel.

$54,887.67

36,591.78

17,808.00

"Whereas, by the sixth paragraph of the nineteenth clause of said contract it is further provided, that when all the conditions, covenants, and provisions of said contract shall have been performed and fulfilled by and on the part of the party of the first part, said party of the first part shall be entitled, within ten days after the filing and acceptance of its claim, to receive the 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.

The proportionate expense, for the pe-
riod from May 10, 1894, of the cost of
insurance during the two years' delay 26,272.55
$135,560.00

Attorney General Bonaparte, Assistant | scription." All the claims for which allowAttorney General Van Orsdel, and Mr. Charles C. Binney for the United States. Messrs. John C. Fay, Holmes Conrad, Eaton Creecy, and Eppa Hunton for the Cramp Company.

ances were made in the judgment of the court of claims come within one or the other of these clauses. It may be that, strictly speaking, they were not claims under the 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:

This case turns on the release executed by the building company on May 18, 1896. It is contended by the claimant that it applies simply to claims springing out of the construction of the vessel, and therefore has no application to the matters for which the judgment was rendered against the government. The word "construction," the company says, is limited to the mere matter of building; that is, the furnishing of materials, the doing of work, and does not include delays or other matters outside the building of the vessel.

To rightly understand the scope of this release we must consider the conditions of the contract, and especially the clause in it which calls for a release. The contract was a large one, the price to be paid for the work and material being over $3,000,000, and the contract was evidently designed to cover all contingencies. Provision was made for changes in the specifications, for penalties on account of delays of the contractor, deductions in price on certain conditions, approval of the work by the Secretary of the Navy, forfeiture of the contract, with authority to the Secretary to complete the vessel. The nineteenth clause contains the stipulations as to the amounts and times of payment with authority for increase of the gross amount upon certain conditions. The sixth paragraph of this clause makes special provision for the last payment, to be made "when all the conditions, covenants, and provisions of said contract shall have been performed and fulfilled by and on the part of the party of the first part" and "on the execution of a final release to the United States in such form as shall be approved by the Secretary of the Navy, of all claims of any kind or description under or by virtue of said contract." Evidently the parties contemplated and specially provided by this stipulation that the whole matter of the contract should be ended at the time of the final release and the last payment. That which was to be released was "all claims of any kind or description under or by virtue of said contract." Manifestly, included within this was every claim arising not merely from a change in the specifications, but also growing out of delay caused by the government. The language is not alone "claims under," but "claims by virtue" of the contract, claims of any kind or de

been provided in advance that the contract should be closed up by the execution of a release of this kind, it cannot be that the company, when it signed the release, understood that some different kind of release was contemplated. It must have understood that it was the release required by the contract,-a release intended to be of all claims of any kind or description under or by virtue of the contract, and that the form of words which the Secretary had approved was used to express that purpose. With that release stipulated for in the contract the company signed the instrument of May 18, 1896, which in terms purported to "remise, release, and forever discharge the United States of and from all and all manner of debts, dues, sum and sums of money, accounts, reckonings, claims and demands whatsoever, in law or in equity, for or by reason of or on account of the construction of said vessel under the contract aforesaid." Now, whatever limitation may be placed upon the words "for" or "on account of" the construction, the provision for the release of all claims and demands whatsoever, "by reason of the construction of the vessel under the contract aforesaid," is a recognition of the contract, and includes claims which arise by reason of the construction of the vessel under it. "By reason of" may well be considered as equivalent to "by virtue of." It is only by reason of the performance of the contract in the construction of the vessel that these claims arise. But for the contract, and the construction of the vessel under it, there would be no such claims. No payment of moneys not due is necessary to sustain this release. It is under seal, and the contract is itself full consideration. As of significance it must be borne in mind that the release referred specifically to the provisions in the sixth paragraph of the nineteenth clause of the contract, which provided for the character of the release. Indeed, the general language of the release itself and the number of words of description in it show that it was the intent of the Secretary of the Navy to have a final closing of all matters arising under or by virtue of the contract.

Stipulations of this kind are not to be shorn of their efficiency by any narrow, technical, and close construction. The general language "all and all manner of debts," etc. indicates an intent to make an ending of

every matter arising under or by virtue of the contract. If parties intend to leave some things open and unsettled, their intent so to do should be made manifest. Here was a contract involving three millions of dollars, and after the work was done, the vessel delivered and accepted, and this release entered, claims are presented amounting to over $500,000. Surely the parties never intended to leave such a bulk of unsettled matters. As bearing upon this matter it may be noticed that while the release was signed and the contract between the building company and the government closed on May 18, 1896, this action was not brought until August 10, 1897,-nearly a year and a quarter thereafter.

We are of opinion that the parties, by the release of May 18, 1896, which was executed in performance of the requirements of the original contract, settled all disputes between the parties as to the claims sued upon.

The judgment of the Court of Claims is reversed and the case remanded, with instructions to enter a judgment on the findings for the defendant.

Mr. Justice McKenna and Mr. Justice Moody took no part in the decision of this

case.

from the Supreme Court of the United States to a state court.

[No. 262.]

Argued April 12, 15, 1907. Decided May 13,

I

1907.

N ERROR to the Supreme Court of the state of Arkansas to review a decree which affirmed a decree of the Chancery Court of Poinsett County, in that state, dismissing the bill in a suit to quiet title. Dismissed for want of jurisdiction.

See same case below, 77 Ark. 338, 92 S. W. 534.

The facts are stated in the opinion. Messrs. Henry D. Ashley, Sanford B. Ladd, William S. Gilbert, Denton Dunn, and Robert S. Rodgers for plaintiff in error.

Mr. N. W. Norton for defendants in error.

Mr. Chief Justice Fuller delivered the opinion of the court:

This was a bill to remove a cloud from

plaintiff in error's alleged title to certain lands described in the complaint, and to that end to have the conveyances under which defendants in error claimed declared void, filed by plaintiff in error in the chancery court of Poinsett county, Arkansas, 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.,

V.

CHARLES H. BIGELOW, N. P. Bigelow, L.
P. Walker, and F. H. Hartshorn.
Error to state court-Federal question-ri-
parian rights.

77 Ark. 338, 92 S. W. 534. Thereupon this writ of error was allowed.

The supreme court of the state stated the case in brief thus:

"Plaintiff claims title under an act of Congress entitled Congress entitled 'An Act to Enable the State of Arkansas and Other States to Reclaim the "Swamp Lands" within Their Limits,' approved September 28, 1850. [9 Stat. at L. 519, chap. 84, U. S. Comp. Stat. 1901, p. 1591.] It alleges that, in pursuance of the provisions of this act, surveyed sections and parts of fractional sections in fractional township 12 north of the base line, in range 6 east of the fifth principal meridian, and in township 12 north of the base line, in range 7 Error to state court-Federal question-Poinsett county, in this state, were duly east of the fifth principal meridian, and in

1. A decision of a state court, in a suit to quiet title, that the grantee from the United States, through the state of Arkansas and other grantors, took no title by virtue of riparian rights to lands lying between the government meander line and the main channel of a river, which lands the court finds to be swampy, checked by bayous, subject to inundation, but reclaimable to some extent for agricultural purposes, is not reviewable in the Supreme Court of the United States.*

questions of fact.

2. The decisions of state courts upon questions of fact are not reviewable by writ of error to those courts from the Supreme Court of the United States. + Error to state court-Federal question-rulings on evidence.

3. The exclusion from evidence in a suit to quiet title of a letter written by the Secretary of the Interior to the Commissioner of the General Land Office, which is clearly res inter alios acta, can present no Federal question which will sustain a writ of error

selected, approved, and patented to the state
of Arkansas, as a part of the swamp land
grant; that certain of these lands were
conveyed by the state of Arkansas, on the
12th day of June, 1871, to Moses S. Beach;
that plaintiff acquired and is the owner of
these lands so conveyed to Beach as well as
certain other of the lands which were deeded
to the state of Arkansas by the United States;
that many of the legal subdivisions of sec-
tions so acquired by plaintiff were bounded

*Ed. Note.-For cases in point, see vol. 13. Cent. Dig. Courts, § 1065.
tEd. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, §§ 1089, 1090.
Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, §§ 1049, 1054.

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