any tax upon their property to pay any part Trail about 2 miles south of the county line of the interest or principal of the bonds. to Holliday on the Ozark Trail about 6 miles They seek relief on the ground that the crea-west. These roads are within the road distion of the road district and the enforcement trict, and the bonds issued are to raise monof the proposed tax will deprive them of ey to improve them. their property without due process of law in January 17, 1924, there was presented to violation of the Fourteenth Amendment. The the commissioners' court a petition signed by District Court dismissed the complaint. 3 74 persons. It prayed an election to deterF. (2d) 160. The case is here on direct ap- mine whether bonds of the territory, therein peal. Section 238, Judicial Code (Comp. St. described by metes and bounds, and to be § 1215). designated as "Road District No. 2 of Archer County, Texas," should be issued for road purposes in the amount of $300,000, and whether a tax should be levied upon the property therein to pay the bonds. The commissioners' court by order established the district within the metes and bounds and for the purposes set forth in the petition, and declared it to be a body corporate. On the same day the court fixed the time and place for an election. Its result was 303 votes for and 102 against the bond issue. Thereupon the court ordered the bonds to be issued, and levied the taxes. Before the election was called, the court determined that the proceeds of the bonds, if voted, or so much as might be necessary, should be expended for the The Texas statutes (Complete Tex. St. 1920, or Vernon's Sayles' Ann. Civ. St. 1914, art. 627) provide: "Any county * or any political subdivision or defined district, now or hereafter to be described and defined, of a county," is authorized to issue bonds, not to exceed one-fourth of the assessed valuation * 401 *of real property in the district, for the construction, maintenance and operation of macadamized, graveled or paved roads and turnpikes, and to levy and collect taxes to pay them. Upon the petition of 50 resident property tax paying voters of any defined district of any county, it is the duty of the commissioners' court to order an election in the district as described in the petition to determine whether its bonds shall be issued for such road purposes, and whether a tax shall be levied upon the property of the district for their payment. Complete Tex. St. 1920, or Vernon's Ann. Civ. St. Supp. 1918, art. 628. If two-thirds of the votes cast are in favor of the proposition, the commissioners' court is required to issue and sell the bonds. Complete Tex. St. 1920, or Vernon's Sayles' Ann. Civ. St. 1914, art. 631. But before they are put on the market, the court is required to levy a tax sufficient to pay the debt as it matures. The assessments are to be made on the same valuation, and they become liens and may be enforced in the same manner as state and county taxes. Articles 634, 2827, 2836. For the purposes of the act, any district accepting its provisions by such vote is thereby created a body corporate which may sue and be sued. Article 637. Archer county is about 30 miles square, and has a population of between 5,000 and 6,000. The principal place is Archer City, the county seat, located about 5 miles south and 3 miles east of the center of the county. Road district No. 2 embraces approximately the northerly half of the county, including a part of Archer City. The Ozark Trail is a federal aided state highway, and about 20 miles of it extends diagonally across the northwesterly part. Dundee is located on it about 2 miles from the west line of the county. There is a highway extending from that place to Diversion Dam about 6 miles northwest. About 18 miles of the Southwest Trail lies between Archer City and a point on the north line of the county about 6 miles from its northeast corner. There is another high 402 way extending from a point *on the Southwest roads above described. The appellants' lands-24,900 acres in allare in the northeasterly part of the county. All but one of the petitioners are residents of the part of Archer City that is within the road district. Archer City, Dundee, and Holliday furnished 252 votes for the bond issuemore than twice the number cast against it. Nearly all the votes cast in the northeasterly part of the county were negative. The taxable property in the district is assessed at $5,683,359, of which $257,080 belongs to appellants, and $111,388 to petitioners, and $60,500 of that amount belongs to one signer, leaving only $50,888 to the other 73. The part of the district in which appellants' lands are situated is tributary to Wichita Falls, which is outside Archer county, but near its *403 northeast corner. The evi*dence persuasively supports appellants' contention that the improvements of the roads designated will not benefit their property. Moreover, the inclusion of their lands in that road district makes it impossible, until the last bonds mature, 30 years hence, to create another road district to raise money for the improvement of roads needed to serve the territory in which their lands are situated. Complete Tex. St. 1920, or Vernon's Ann. Civ. St. Supp. 1922, art. 637d. [1-3] Resort may be had to general taxes and to special assessments to raise funds for the construction or improvement of roads. Missouri Pacific Railroad v. Road District, 266 U. S. 187, 190, 45 S. Ct. 31, 69 L. Ed. 237. The proceedings in this case cannot be sustained as the levy of a general tax. The commissioners' court is authorized to levy general taxes for road purposes up to a stated maximum on each $100 valuation. Complete (46 S.Ct.) *405 Tex. St. 1920, or Vernon's Sayles' Ann. Civ. | ing commissioners' precincts does not support St. 1914, art. 2242; Const. Tex. art. 8, § 9. the contention that the road district was The expenditure of the moneys so raised is created by the Legislature. For the election not limited to any specified roads. And it is of commissioners, each county is divided info significant that, in the case of a road district, four precincts from each of which a commis. the court's duties in respect of the amount to sioner is elected. These precincts are not be raised and the lands to be subjected to defined by the Legislature, but by the comthe charge are purely ministerial, and con- missioners' courts. Complete Tex. St. 1920, fined solely to carrying out the will of the or Vernon's Sayles' Ann. Civ. St. 1914, art. petitioners when approved at the election. Here, on the initiation of individuals sign- 1356; Constitution Tex. art. *5, § 18. They ing the petition, a special district was carved are political subdivisions, but, unlike road out to furnish credit and to pay for specified districts, they are not bodies corporate. improvements on designated roads wholly See Ex parte Haney, 51 Tex. Cr. R. 634, within the territory selected. The purpose 103 S. W. 1155; Cofield v. Britton, 50 Tex. was special, and the district will cease to exCiv. App. 208, 109 S. W. 493, 496. They ist as a body corporate upon the payment of are not taxing or assessment districts; their the bond debt. It is clear that the burdens powers and functions are wholly different here sought to be imposed on appellants' from those of a road district. And plainly, lands are special assessments for local im- the authority granted (article 627) to issue provements. Embree v. Kansas City Road road bonds up to one-fourth the assessed valDistrict, 240 U. S. 242, 247, 36 S. Ct. 317, 60 uation and to levy taxes ratably to pay them L. Ed. 624; Illinois Central Railroad v. De- is not a legislative determination of the rate catur, 147 U. S. 190, 197, 209, 13 S. Ct. 293, or amount of the tax imposed on appellants' 37 L. Ed. 132. property. The amount of the bonds to be issued and the property to be taxed are the elements which determine the burden. These were fixed by the petition and election. The Legislature may make assessments for local improvements ratably on the basis of property valuation (Valley Farms Co. v. Westchester, 261 U. S. 155, 43 S. Ct. 261, 67 L. Ed. 585) ; but, where the amount to be raised is determined and the property to be assessed is selected as in this case, the requirement that the burden shall be so spread is not a legislative assessment. [4, 5] The Legislature did not create the road district, levy the tax or fix the amount *404 to be raised. Under the act, road *districts are not required to correspond with or to include any political subdivision. Moore v. Commissioners' Court (Tex. Civ. App.) 175 S. W. 849; Bell County v. Hines (Tex. Civ. App.) 219 S. W. 556. There is nothing in the law to guide or to limit the action of the signers of the petition in selecting property to be assessed. Subject to the vote of a district of their own choice, the petitioners' designation is absolute. The commissioners' court has no power to modify or deny; it is bound to grant the petition. Huggins v. Vaden (Tex. Civ. App.) 253 S. W. 877, 878; Id. (Tex. Civ. App.) 259 S. W. 204, 206; Meurer v. Hooper (Tex. Civ. App.) 271 S. W. 172, 176. And when the required vote is given, the court, once for all, must make a levy on the taxable property of the district sufficient to pay the entire debt as it matures. The opinion of the District Court states that the road district "was composed of two of the precincts of Archer County-'political subdivisions' of the county well recognized and ascertained long before the controversy." We find nothing in the record to support the statement. But, if true, it does not tend to show that the Legislature created the road district. A political subdivision is not a "defined district" within the meaning of the Texas Constitution (article 3, § 52) or of the act. It has been held by the Texas Court of Civil Appeals that a "defined district" means a defined area in a county, and less than a county, other than a political subdivision of a county. Bell County v. Hines, supra, 557. The fact that the metes and bounds describing the road district happened to coincide with the external boundaries of two adjoin [6-8] Where a local improvement territory is selected, and the burden is spread by the Legislature, or by a municipality to which the state has granted full legislative powers over the subject, the owners of property in the district have no constitutional right to be heard on the question of benefits. Valley Farms Co. v. Westchester, supra; Hancock v. Muskogee, 250 U. S. 454, 459, 39 S. Ct. 528, 63 L. Ed. 1081; Withnell v. Construction Co., 249 U. S. 63, 69, 39 S. Ct. 200, 63 L. Ed. 479; Wight v. Police Jury (C. C. A.) 264 F. 705. But it is essential to due process of law that such owners be given notice and opportunity to be heard on that question where, as here, the district was not created by the Legislature, and there has been no legislative determination that their property will be benefited by the local improvement. Appellants were denied all opportunity to be heard. No officer or tribunal was empowered by the law of the state to hear them, or to *consider and determine whether the road improvements in question would benefit their lands. The act is re pugnant to the due process clause of the Fourteenth Amendment. Embree v. Kansas City Road District, supra, 240 U. S. 251 (36 S. Ct. 317, 60 L. Ed. 624). Decree reversed. *406 (269 U. 8. 411) common to public, has a property right, inciUNITED STATES v. RIVER ROUGE IM- dent to his ownership of bank, of access from PROVEMENT CO. et al. (Argued March 10 and 11, 1924. Decided front of his land to the navigable part of the stream, and, when not forbidden by public law, may construct landings, wharves, or piers for this purpose. 6. Navigable waters 39(2)-Rights of riparian owners in Michigan determined by common law. 1. Appeal and error 84(1)-Judgment of Circuit Court of Appeals held reviewable, Common-law rights of riparian owners on without awaiting determination of matter in-navigable waters in Michigan are not limited volved in retrial granted to one party only. Judgment on appeal from awards to several defendants in condemnation proceedings, affirming judgment except as to one defendant, to which new trial was granted, held final, in so far as it affirmed judgment of District Court, and reviewable on writ of error without awaiting determination of matter involved on retrial. 2. Appeal and error 79(1)-Judgment of federal court, final and complete as to particular parties, may be reviewed, without awaiting determination of separate matter affecting only other parties. Judgment of federal court, final in its nature as to matter distinct from general subject of litigation, and affecting only parties to particular controversy, may be reviewed, without awaiting determination of general litigation, and, conversely, adjudication of general subject, final in its nature, may be reviewed, without awaiting determination of separate matter affecting only parties to particular controversy. 3. Eminent domain 145(1)—Increased value in remaining portion of riparian land taken for river improvement held special benefit, to be considered in determining compensation for land taken. by statutes of that state. 7. Navigable waters 39(2)-Rights of ri- are subordinate to public right of navigation, Congress may not arbitrarily destroy or impair the rights of riparian owners by legisla tion which has no real or substantial relation to the control of navigation, or appropriateness to that end. 9. Eminent domain 262 (5)—Erroneous Instruction in proceedings to condemn land for river improvement held not such as could be deemed not prejudicial. Act Feb. 26, 1919, amending Judicial Code, $269 (Comp. St. Ann. Supp. 1919, § 1246), does merely to formal or technical matters, but to not warrant affirmance, where error relates, not substantial rights of parties, unless it appears from whole record that it was harmless, and ri-instruction in condemnation proceedings which over-emphasized elements of uncertainty of benefits to be deducted held not one which could be deemed not prejudicial. In proceedings to condemn portion of parian land for purpose of improvement, under Rivers and Harbors Act Aug. 8, 1917, increase in value of remaining portion, caused by its frontage on improved stream, constitutes a special and direct benefit, which under Rivers and Harbors Act July 18, 1918, § 6 (Comp. St. Ann. Supp. 1919, § 9878b), should be deducted in determining amount of compensation for land taken. In Error to the United States Circuit Court of Appeals for the Sixth Circuit. Condemnation proceedings by the United States against the River Rouge Improvement Company and others. The Circuit Court of Appeals (285 F. 111) affirmed all but one of 16 awards reviewed, and the United States brings error. Reversed, and cause remanded. #412 *The Attorney General and Messrs. James M. Beck, Sol. Gen., of New York City, and Alfred Lucking, of Detroit, Mich., for the "United States. In condemnation proceedings under Rivers and Harbors Act Aug. 8, 1917, instructions as to special benefits to portions of land not taken, which over-emphasized uncertainty and contingent character of rights of riparian owners, stating that such rights were "subject to the absolute power of control by the government," and that jury should keep in mind "the uncer- Messrs. Selden S. Dickinson, Charles A. tainty of securing from the government the Wagner, Ralph B. Wilkinson, Henry M. privilege to enjoy these advantages, and the Campbell, Paul B. Moody, Wm. L. Carpenter, limited character of whatever advantages may and Thomas G. Long, all of Detroit, Mich., be so secured," held prejudicial error. for defendants in error. 5. Navigable waters 43 (2)-Rights of riparian owner stated. In absence of controlling local law, riparian owner on navigable river, in addition to rights Mr. Justice SANFORD delivered the opinion of the Court. Pursuant to an appropriation for the improvement of the Rouge River, Michigan, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (46 S.Ct.) *413 made in the Rivers and Har*bors Act of August 8, 1917,1 the United States filed in the District Court for the Eastern District of Michigan five petitions for the condemnation of numerous parcels of riparian land needed for such improvement, and, also, of a gas main passing underneath the river.2 The petitions were consolidated, and a jury trial had resulting in seventy-three awards of compensation to the property owners. Judgments were entered confirming all these awards. Writs of error were sued out by the United States to review the judgments as to fifteen of the awards to riparian land owners and the award to the owner of the gas main. These were heard by the Circuit Court of Appeals as one case, and all the judgments were affirmed except that awarding compensation to the owner of the gas main, as to which a new trial was granted. 285 F. 111. This writ of error is brought to review the judgments as to the awards thus affirmed, involving fifteen parcels of land. [1, 2] 1. We are of opinion that, although a new trial was granted as to the award to the owner of the gas main, the judgment of the Circuit Court of Appeals as to the awards to the riparian land owners, has such finality and completeness that it may be reviewed under this writ of error. The controversy *414 as to the gas main is entirely distinct *from those as to the riparian lands; and its result can have no bearing whatever upon the awards to the land owners. While the general rule requires that a judgment of a federal court shall be final and complete before it may be reviewed on a writ of error or ap peal, it is well settled that an adjudication final in its nature as to a matter distinct from the general subject of the litigation and affecting only the parties to the particular controversy, may be reviewed without awaiting the determination of the general litigation. Williams v. Morgan, 111 U. S. 684, 699, 4 S. Ct. 638, 28 L. Ed. 559; Collins v. Miller, 252 U. S. 364, 371, 40 S. Ct. 347, 64 L. Ed. 616; Arnold v. Guimarin, 263 U. S. 427, 434, 44 S. Ct. 144, 68 L. Ed. 371. And so, conversely, an adjudication final in its nature as to the general subject of the litigation may be reviewed without awaiting the deter 140 Stat. 250, 258, c. 49, § 1. 2 The appropriation was made on condition that the "local interests" should donate the necessary land and settle all claims for damages. Act of 1917, supra; Ho. Doc. No. 2063, 64th Cong. 2d Sess. pp. 5, 15. The "local interests" which had undertaken to secure the necessary lands, were unable to obtain them by purchase; and, at the request of the Secretary of War, condemnation proceedings were instituted in the name of the United States. Act of May 16, 1906, c. 2465, 34 Stat. 196, as amended by the Act of June 29, 1906, c. 3628, 34 Stat. 632 (Comp. St. § 9881). In order that the United States might be given immediate possession and proceed with the work, the Ford Motor Company, the principal "local interest," made a deposit to cover any awards of compensation and damages that might be made. Act of July 18, 1918, c. 155, 40 Stat. 904, 911 46 S.CT.-10 mination of a separate matter affecting only the parties to such particular controversy. 2. The principal matter here involved relates to the benefits to the land owners which were to be considered in reduction of their compensation and damages. The Rivers and Harbors Act of July 18, 1918,8 contains a provision-whose validity is not questioned that in all condemnation proceedings by the United States to acquire lands for the public use in connection with any improvement of rivers, where a part only of any parcel of land is taken, the jury "shall take into consideration by way of reducing the amount of compensation or damages any spe cial and direct benefits to the remainder arising from the improvement." In each of the sixteen instances here involved the United States condemned only a portion of the parcel of land belonging to the riparian owner. It insists that there was error in the instructions to the jury in reference to the extent and measure of the benefits to the remain der. The Rouge River, which empties into the Detroit River, had long been used for pur 415 poses of navigation, and various *industrial plants were located along its banks. Although it had been somewhat improved by the United States prior to 1917, the channel was narrow, winding, comparatively shallow, and incapable of accommodating large freighters. Under the terms of the Act of 1917 the new improvement was to be made in accordance with a plan recommended by the engineers of the War Department. This contemplated straightening the channel of the river and widening and deepening it for about four miles above its mouth, so that it would accommodate the largest type of freighters on the Great Lakes and become, as was said, "practically a long slip serving for numerous docks and industries." The bottom width of the new channel was to be 200 feet, the banks sloping to a top width of 290 feet between the harbor lines. After its completion riparian owners desiring to construct docks were to be "required to locate the dock line or retaining wall" upon the harbor line, and excavate the bank "in front of the retaining wall or dock front" to the depth necessary to permit vessels to lie alongside. The portions of the lands which were condemned were those lying within the limits of the widened channel or harbor lines. The United States contended that the remaining portions of these parcels would receive special and direct benefits from the improvement by reason of fronting on the widened river and having direct access thereto for the building of docks and other purposes of navi 40 Stat. 904, 911, c. 155, § 6 (Comp. St. Ann. Supp. 1919, § 9878b). Ho. Doc. No. 2063, note 2, supra, pp. 10, 11. gation for which they had not been previous- | riparian owner any property right to use the ly available. river for loading or unloading of vessels, this [3] We are of opinion that an increase in being "subject to the absolute power of conthe value of the remaining portion of any trol by the Government"; that the jury parcel of land caused by its frontage on the could not make any deduction of benefits on widened river, carrying a right of immediate the theory that the improvement would inaccess to and use of the improved stream, crease any property right in connection with would constitute a special and direct benefit the access to or use of the river or bring the within the meaning of the statute, as dis-owner any new or different property right of *416 access and use for purposes of navigation; that no benefit could be deducted unless the remainder of the land was rendered suitable for new or greater uses in navigation because of its new location "and because of a greater opportunity directly and specially to enjoy such use of the improved river as the Government may permit such owner to have;" and that the jury should keep "always in mind the uncertainty of securing from the Government the privilege to enjoy these advantages, and the limited character of whatever advantages may be so secured." tinguished from a benefit common to all the lands in the vicinity, although the remaining portions of other riparian parcels would be similarly benefited. This is in accordance with the rule recognized by this court and established by the weight of authority in the state courts in reference to special benefits to lands abutting upon a new or widened street. Bauman v. Ross, 167 U. S. 548, 575, 17 S. Ct. 966, 42 L. Ed. 270; Allen v. Charlestown, 109 Mass. 243, 246; Hilbourne v. Suffolk County, 120 Mass. 393, 394, 21 Am. Rep. 522; Cross v. Plymouth, 125 Mass. 557, 558; Abbott v. Cottage City, 143 Mass. 521, 526, 10 N. E. 325, 58 Am. Rep. 143; Lewis v. Seattle, 5 Wash. 741, 758, 32 P. 794; Lowe v. Omaha, 33 Neb. 587, 593, 50 N. W. 760; St. Louis Railway v. Fowler, 142 Mo. 670, 683, 44 S. W. 771; 2 Lewis' Eminent Do-to the usual rights of navigation pertinent main (3d Ed.) § 702, p. 1216. And see Roberts v. Commissioners, 21 Kan. 247, 252; Trosper v. Commissioners, 27 Kan. 391, 393. In Allen v. Charlestown, supra, 246, the rule is thus stated: "The benefit is not the less direct and special to the land of the petitioner, because other estates upon the same street are benefited in a similar manner. The kind of benefit, which is not allowed to be estimated for the purpose of such deduction, is that which comes from sharing in the common advantage and convenience of increased public facilities, and the general advance in value of real estate in the vicinity by reason thereof. * ** The advantages of more convenient access to the particular lot of land in question, and of having a front upon a more desirable avenue, are direct benefits to that lot, giving it increased value in itself. It may be the same, in greater or less degree, with each and every lot of land upon the same street. But such advantages are direct and special to each lot. They are in no proper sense common because there are several estates, or many even, that are similarly benefited." #417 The United States not only excepted to these portions of the charge, but also requested that the jury be instructed, as bearing upon the existence and amount of the special benefits, that a riparian owner bordering on the new stream would have in respect there to riparian property, that is, the right of access to the navigable part of the river in front of his property and the right to make a landing, dock or pier upon his harbor line, subject only to such general rules and regulations as the Government, in its power over navigation, might properly impose for the protection of the public right of navigation; that this *power of the Government "over navigation for the protection of public rights can not be arbitrarily and capriciously exercised so as to destroy these riparian rights, *418 but must be exercised with reasonable relations to the requirements of navigation"; and that, by the terms of the plan of improvement, riparian owners whose lands would border the new stream, were given the right or privilege of constructing docks or retaining walls for their use upon the harbor line, and to excavate the bank in front thereof to the depth necessary to permit vessels to lie alongside. These requests were denied; and the United States excepted. [4] But while the trial judge recognized [5, 6] We are of opinion that the giving of the right of the United States to the deduc- these instructions and the refusal of these tion of such special benefits, if any, it insists requests involved prejudicial error. It is that in charging the jury in reference to well settled that in the absence of a controlthem he erroneously minimized their nature ling local law otherwise limiting the rights and extent. *In this portion of the charge the of a riparian owner upon a navigable river, court stated, inter alia, that the Government | Shively v. Bowlby, 152 U. S. 1, 40, 14 S. Ct. had "the absolute power of control" over nav-548, 38 L. Ed. 331, he has, in addition to the igable streams, and the right to deprive any rights common to the public, a property riparian owner of all access to the navigable portion of the stream and order the removal of any docks or other structures placed in the stream; that the deepening and widening of the channel would not confer on any right, incident to his ownership of the bank, of access from the front of his land to the navigable part of the stream, and when not forbidden by public law may construct landings, wharves or piers for this purpose. Dut |