tioned. There was no direct repeal of the section. Neither was there any repeal by implication. McCool v. Smith, 1 Black, 459; U. S. v. Tynen, 11 Wall. 88; Henderson's Tobacco, Id. 652; Murdock v. Memphis, 20 Wall. 590; Red Rock v. Henry, 106 U. S. 596; S. C. 1 SUP. CT. REP. 434. It was allowed to remain unaltered on the statute-book; the effect of the subsequent legislation being only to suspend its operation until the first day of January, 1852. The interpretation must, therefore, be the same as if the third section of the act of March 23, 1804, had been repeated in every subsequent statute of the series. As neither Archibald Gordon, nor any of his heirs or representatives, ever made a return of the survey of the land in dispute, either to the secretary of war or the commissioner of the general land-office, either be-" fore or after the first day of January, 1852, the third section of the act of March 23, 1804, cuts up by the roots all the right and title derived from the location and survey of Archibald Gordon.

Under the acts of congress, Gordon, by his entry and survey, acquired title depending on his performance of certain prescribed conditions. His failure to perform the conditions stripped him of all interest or estate in the lands covered by his entry and survey. That such is the effect of the third section of the act of March 23, 1804, is made manifest by the proviso above quoted of the act of July 7, 1838, which declared all entries and surveys theretofore made to be good and valid, notwithstanding any omission by congress to extend the time for making such entries and surveys. This is equivalent to a declaration by congress that section 3 of the act of 1804 was still in force, and legislation was necessary to relieve from its operation entries and surveys not made within the time limited by that or the subsequent enactments.

Since the act of February 20, 1850, congress has passed two acts, on both of which the plaintiff relies as making good his title. The first of these is the act of March 3, 1855, (10 St. 701,) entitled "An act allowing the further time of two years to those holding land by entries in the Virginia military district in Ohio which were made prior to the first of January, 1852, to have the same surveyed and patented." This act provided "that the officers and soldiers of the Virginia line of continental establishment, their heirs or assigns, entitled to bounty lands which have, prior to the first day of January, 1852, been entered within the tract reserved by Virginia between the Little Miami and Scioto rivers for satisfying the legal bounties to her officers and soldiers upon continental establishment, should be allowed the further time of two years from and after the passage of this act to make and return their surveys and warrants, or certified copies of warrants, to the general landoffice."

This act is, by its terms, confined to lands entered and not surveyed prior to January 1, 1852. The policy of the act is clear. The acts passed prior to the act of July 7, 1838, fixed one period for locating entries, and a longer time for making and returning surveys, plainly because the surveys could not be made until the entries were made. But the act of July 7, 1838, as revived and continued in force by subsequent statutes, fixed the first day of January, 1852, as the limit allowed both for making entries and making and returning surveys. It therefore doubtless happened that laggard warrant holders procrastinated the making of their entries until it was too late to make and return their surveys before the first of January, 1852. Therefore the act of March 3, 1855, was passed, allowing the holders of warrants who had made their entries before January 1, 1852, two years further time after the passage of the act to make and return their surveys. Those who, before January 1, 1852, had made both their entries and surveys were not within the words or spirit of the act.

The next act on which the plaintiff relies is the act of May 27, 1880, (21 St. 142.) This act is entitled "An act to construe and define 'An act to cede to the state of Ohio the unsold lands in the Virginia military district in said

899.

state,' approved February 18, 1871, and for other purposes." The act which was to be construed and defined, provided "that lands remaining unsurveyed and unsold in the Virginia military district, in the state of Ohio, be, and the same are hereby, ceded to the state of Ohio," and saved to any bona fide settler not exceeding 160 acres by him occupied, by his pre-empting the same in such manner as the state of Ohio might direct. 16 St. 416.

*564

The plaintiff relies on the first three sections of the act of May 27, 1880. The first section declares that the true intent and meaning of the act of February 18, 1871, just mentioned, was to cede to the state of Ohio only such lands as were unappropriated and not included in any entry or survey within said district founded on military warrants upon continental establishment. The second section is as follows: "That all legal surveys returned to the land-office on or before March 3, 1857, on entries made on or before January 1, 1852, and founded on unsatisfied Virginia military continental warrants, are hereby declared valid." The third section provided that the officers and soldiers of the Virginia line on continental establishment, their heirs or assigns, "entitled to bounty lands which have, on or before January 1, 1852, been entered" in the Virginia military district in Ohio, should "be allowed three years after the passage of the act to make and return their surveys for record to the office of the principal surveyor of said district, and might file their plats, certificates, and warrants in the general land-office, and receive patents for the same.

The provisions of the third section are based on the same policy, and are similar to those of the act of March 3, 1855, ubi supra, and must receive the same construction, namely, that three years' further time was allowed for the return of the surveys of the lands which had been entered but not surveyed before January 1, 1852. The section does not, therefore, help the plaintiff's title. But the plaintiff relies confidently on the second section, and her contention is that the "land-office" referred to in this section is the same as the "office of the principal surveyor of said," the Virginia military, "district" mentioned in the third section of the act, and that, as on November 25, 1824, Archibald Gordon had recorded his survey in the latter office, kept at Chillicothe, Ohio, the section above quoted makes the survey valid.

In construing the second section of the act of 1880, the rule already referred to must be applied, namely, that all acts in relation to the same subject are to be construed together as if one act. The act of 1880 is part of the system of legislation relating to the Virginia military district in the state of Ohio, beginning with the act of March 23, 1804, and continued in the 14 other acts heretofore referred to. The acts of March 23, 1804, and of March 2, 1807, passed before the establishment of the general land-office, required surveys to be returned to the secretary of war. All the subsequent acts, except the act of February 22, 1815, which omitted any direction for the return of surveys, 14 in number, either directly or by reference to other acts, required surveys to be returned to the general land-office. When, therefore, the second section of the act of May 27, 1880, provides that all legal surveys returned to the "land-office" before March 3, 1857, shall be valid, it is not open to question that the land-office referred to is the general land-office. In all the legislation on the subject, found in 13 acts of congress, extending over a period of 68 years, no other land-office had been mentioned. The theory that the words "land-office," in the act of May 27, 1880, meant the office of the principal surveyor of the district of Chillicothe, which, in all the previous legislation, had never been named or alluded to, is without any support in any rule of construction, and is inconsistent with the system for the disposition of the lands adopted and maintained by congress for more than three-quarters of a century. That system, as we have seen, required the surveys and warrants to be returned to the city of Washington, at first to the secretary of war, and afterwards to the general land-office. It required that patents should be issued by

the president upon surveys so returned, and no patent could issue on any survey not so returned. It cannot be conceived that congress, by the omission of the word "general" before the words "land-office," intended to reverse this policy which it had persistingly adhered to through 15 different statutes and for nearly three generations, and thus to unsettle the titles to land in a large and densely peopled territory.

Nor can we impute to congress the incongruity of using the words "landoffice," and the words "the office of the principal surveyor of said district," in contiguous sections of the same act, to mean the same thing. But all doubt, if any existed, of the true meaning of the words "land-otlice" in the section under consideration is removed by the fact that the section is plainly in substance and effect a re-enactment of the act of March 3, 1855, which provided in terms for the return of surveys to the general land-office.

12

The plaintiff further insists that the first and second sections of the act of May 27, 1880, repeal by implication the third section of the act of March 23, 1804. There is no ground for such a contention. It is most unreasonable to suppose that congress intended, by doubtful inference, to repeal the salutary provision of section 4 of the act of 1804, which, in numerous enactments, it had cautiously preserved for a period of 76 years, and on which the titles to a vast domain rested.

The object of the first and second sections of the act of May 27, 1880, was not to confer new rights, but to preserve rights already vested from impairment by any construction which might be placed on the act of February 18, 1871, by which the unsurveyed and unsold lands in the Virginia military district were ceded to the state of Ohio. But it is enough to say that there is no inconsistency between the two enactments, one of which is said to repeal the other. There can, therefore, be no repeal by implication.

It follows that the plaintiff can derive no aid from any act of congress passed since the first day of January, 1852. On that day all interest and estate of the heirs of Archibald Gordon in the lands covered by his entry recorded on January 1, 1823, and his survey recorded on November 6, 1824, ceased and determined. The plaintiff, therefore, has failed to make good her averment that she has an equitable estate in fee-simple to the premises in controversy. She has therefore shown no right to the relief prayed by her bill. It is immaterial whether the patent of Gregg, under which the defendants claim, was valid or void. The plaintiff, having no title, can have no relief against them. The defendants, being in possession, are entitled to retain possession until ousted by one who has the title. The decree of the circuit court, by which the bill was dismissed, was therefore right, and is aflirmed.

(113 U. S. 565)

FUSSELL v. HUGHES and others.1

(February 2, 1885.)

Appeal from the Circuit Court of the United States for the Northern District of Ohio. The bill in this case was also filed November 20, 1879. It was based on the same alleged title as that in Fussell v. Gregg, ante, 631, and was brought for a part of the lands covered by the same entry and survey, and prayed for the same relief. The same defenses were pleaded. It follows, from what has been said in Fussell v. Gregg, supra, that this suit is not within the jurisdiction of a court of equity, and that the plaintiff has no right whatever to the lands to which she seeks to establish title, and of which sho prays to be put in possession. The decree of the circuit court by which the bill was dismissed was therefore right. Decree affirmed.

'S. C. 8 Fed. Rep. 384.

299.

899

(113 U. S. 566)

CITY OF ST. LOUIS 0. MYERS.
(March 2, 1885.)

RIPARIAN RIGHTS-STATE OF MISSOURI-ACTS OF CONGRESS.

The act of congress of June 12, 1866, c. 116, ? 9, (14 St. 63,) did not, any more than did the act admitting Missouri into the Union,-March 6, 1820, c. 22, (3 St. 545,)-. purport to authorize the city of St. Louis to impair the rights of other riparian proprietors by extending streets into the river.

In Error to the Supreme Court of the State of Missouri. On motion to dismiss.

Nathl. Myers, for the motion. Leverett Bell, in opposition.

WAITE, C. J. The question on which this case turned below was whether Myers, the lessee of the property situated on the bank of the Mississippi river, within the city of St. Louis, which had been improved with a view to its use, and was used in connection with the navigation of the river, could maintain an action against the city for extending one of its streets into the river so as to divert the natural course of the water and destroy the water privileges which were appurtenant to the property. The supreme court of the state decided that he could; and to reverse that decision this writ of error was brought.

We are unable to discover that any federal right was denied the city by the decision which has been rendered. The act of congress providing for the admission of Missouri into the Union,-March 6, 1820, c. 22, (3 St. 545,)—and which declares that the Mississippi river shall be "a common highway, and forever free," has been referred to in the argument here, but the rights of riparian owners are nowhere mentioned in that act. They are left to be settled according to the principles of state law. Certainly there is nothing in the provisions of the act from which a right can be claimed by the city of St. Louis, even though it be the owner of the bed of the river, to change the course of the water as it flows to the injury of those who own lands on the banks. This act was not mentioned in the pleadings, and, so far as we can discover, it was not alluded to in the opinions of either of the courts below, except for the purpose of showing that the Mississippi river was in law a navigable stream.

By an act passed June 12, 1866, c. 116, § 9, (14 St. 63,) congress relinquished to the city of St. Louis all the right, title, and interest of the United States "in and to all wharves, streets, lanes, avenues, alleys, and of the other public thoroughfares" within the corporate limits; but this did not, any more than the act providing for the admission of Missouri into the Union, purport to authorize the city to impair the rights of other riparian proprietors by extending streets into the river, and neither in the court below nor here has there been any provision referred to which it is claimed has that effect.

The case of Railway Co. v. Renwick, 102 U. S. 182, was entirely different from this. There the question was whether the owner of a saw-mill on the bank of the Mississippi river, who had improved his property by erecting piers and cribs in the river under the authority of a statute of Iowa, but without complying with the provisions of section 5254 of the Revised Statutes of the United States, could claim compensation from the railroad company for taking his property in the river for the construction of its road. The company claimed that, as congress, in the exercise of its jurisdiction over the navigable waters of the United States, had prescribed certain conditions on which the owner of saw-mills on the Mississippi river might erect piers and cribs in front of their property, the statute of Iowa, under which Renwick had made his improvements, was void. This we held presented a federal question and gave us jurisdiction; but nothing of that kind appears in this record.

On the whole we are satisfied that no case has been made for our jurisdiction, and the motion to dismiss is consequently granted.

(113 U. S. 594)

AYERS and another v. WATSON.

(March 2, 1885.)

1. REMOVAL OF CAUSE--JURISDICTION-OBJECTION BY REMOVING Party.

Upon the removal of a cause from a state to a federal court, objection to the ju risdiction of the latter court cannot be raised by the party at whose instance the removal was effected.

2. SAME-FILING OF PETITION THEREFOR-TIME ALLOWED.

""

The act of 1866, as codified in Rev. St. 2 639, cl. 2, allows the petition for removal to be filed "at any time before the trial or final hearing of the cause.' This language applies to the last and final hearing. A mistrial by disagreement of jury does not take away the right of removal.

3. DISPUTED BOUNDARY-SURVEYOR'S FIELD-NOTES-MONUMENTS-Jury.

17

If a surveyor's field-notes call for "two hackberry trees as landmarks or monuments, and years afterwards two such trees are discovered at the distance named in the field-notes, and bearing traces of the marks surveyors are accustomed to make, it is for the jury to determine, from all the circumstances, whether the trees so discovered are the identical ones intended by the surveyor as landmarks.

4. INSTRUCTIONS OF COURT-LACK OF DISTINCTNESS OF CHARGE AS TO IMPORTANT POINT.

Upon examination of instructions of court below, held, that there was error in not putting it to the jury with sufficient distinctness that the course and distance of the first two lines of the survey must govern, if the evidence was not sufficient to fix the location of the northern line by identifying the two hackberry trees with those called for in the field-notes for the north-east corner of the survey, or by some other marks or monuments.

In Error to the Circuit Court of the United States for the Western District of Texas.

son.

W. W. Boyce, for plaintiff in error. L. W. Goodrich, for defendant in error. *BRADLEY, J. This was an action of trespass to try title of certain land in Bell county, Texas, originally brought in the district court of said county by Watson, the defendant in error, against the plaintiffs in error and one AnderThe land claimed was described in the petition as a tract lying in said* county of Bell, about 15 miles north-east by north from the three forks of Little river, stating the boundaries. The defendants excepted to the petition for insufficiency of law, and also pleaded not guilty. One of them, Frank Ayers, pleaded specially that he was owner in fee-simple of a tract of 11 leagues, granted by the government of Coahuila and Texas to Maximo Moreno, in the year 1833, describing its metes and bounds; and he alleged that the land described in the plaintiff's petition, and claimed by him under some pretended patent from the state of Texas to the heirs of one W. W. Daws, deceased, was embraced within the boundaries of said 11-league grant, which was an elder and superior title. Anderson pleaded separately that he was occupying the Moreno grant as tenant of Ayers; and especially that 100 acres, including improvements, where he resided, (describing its situation,) was held by him under said Moreno title; that he had been in possession of said land for more than 12 months before the institution of this suit, adversely and in good faith; and he claimed the value of his improvements if the court should hold the plaintiff entitled to recover.

The plaintiff's original petition was filed in August, 1877, and the amended petition and pleas were filed in April, 1879. The cause was first tried in April, 1879, and again in April, 1880, and on both occasions the juries dis agreed. Ayers then presented a petition for the removal of the cause to the circuit court of the United States, alleging that he was a citizen of the state of Mississippi, and that the plaintiff was a citizen of Texas, and that there could be a final determination of the controversy, so far as he was concerned. without the presence of the other defendants as parties in the cause. The court granted the petition, and the cause was removed, no objection to the removal being made either then or in the circuit court afterwards. But after the issuing of the present writ of error from this court, the plaintiffs in er

V.5s-41

*595