The decree directed the trustees to bring into court the money and notes which they should receive, to be distributed under the further order of the court. This decree was not appealed from, but the sale took place under it. That sale was confirmed by the court in special term, by its decree of December 29, 1880. Mrs. Mellen acquiesced in that decree by not appealing from it. On Mrs. Wallach's appeal from it, the court in general term decreed that the trustees who made the sale should require Mrs. Mellen to comply specifically with the terms of her purchase. Mrs. Wallach did not appeal from that, and so she acquiesced in it; and Mrs. Mellen, on her appeal to this court, assigns for error only the action of the general term in giving to Mrs. Wallach priority of payment. Mrs. Burche, being a party to both suits, and not appealing, is bound by the decrees. In view of all this, it must be held that all parties have by their action abandoned the sale by Mr. Kennedy, and acquiesced in the subsequent sale to Mrs. Mellen. It follows from this that all claim of Mrs. Wallach to any surplus from the sale by Mr. Kennedy is gone. Mrs. Mellen, instead of exacting on the sale in cash her $5,000, was willing to leave it to be still a first lien on the property. Her priority of lien, as established by the decree of January 3, 1880, which was not appealed from, extended to the sum of $2,429.02, beyond the $5,000, as money which she had paid to discharge interest, costs, expenses, and taxes which were made a lien on the property by the trust deed to Mr. Kennedy. That amount was, with the $5,000 embraced in the $8,200, covered by the deed of trust made by Mrs. Burche. But, to the extent of $7,429.02, with the interest awarded by the decree of December 29, 1880, Mrs. Mellen's claim stands and has never been satisfied. It is a first lien under the trust deed to Mr. Kennedy, which remains to be enforced for the benefit of Mrs. Mellen, the sale under that deed being, as shown, out of the way, by assent of all parties. Mrs. Mellen has never waived that claim and lien. She asserted them by taking the trust deed from Mrs. Burche, to which we see no valid objection, so far, at least, as the amount for which she had a lien at the date of Mr. Kennedy's sale is concerned, and which is the amount allowed her by the court in special term as a lien. She has asserted the same claim and lien constantly ever since. She did not abandon them by assenting to the resale provided for by the decree of January 3, 1880. In fact, that decree, so far as the $7,429.02 adjudged by it to be due to Mrs. Mellen and to have been a lien on the property on the day of Mr. Kennedy's sale, and so far as Mrs. Mellen's claim to that extent is concerned, may properly be regarded as ordering a resale to enforce Mrs. Mellen's rights under the deed of trust to Mr. Kennedy. Such is its effect. Astor v. Miller, 2 Paige, 68; Olcott v. Bynum, 17 Wall. 63; Markey v. Langley, 92 U.S. 142, 155.

The decree of the court in general term, made July 9, 1881, is reversed, and the cause is remanded to that court, with direction to affirm, with costs, the decree of the court in special term made December 29, 1880, and to take or direct such further proceedings as may be in conformity with law and not inconsistent with this opinion.

(112 U. S. 12)

NEW ORLEANS, M. & T. R. Co. v. STATE OF MISSISSIPPI ex rel. DISTRICT ATTORNEY.

(October 27, 1884.)

DRAW-BRIDGE-NEW ORLEANS, MOBILE & TEXAS RAILROAD COMPANY - ACT OF MISSISSIPPI LEGISLATURE, FEBRUARY 7, 1867-ACT OF CONGRESS MARCH 2, 1868. The effect of the act of the legislature (Laws Miss., 1867, pp. 332, 335, and 336) was tc require, as a condition upon which the New Orleans, Mobile & Texas Railroad Company could construct its road over the Pearl river on the line between the states of Louisiana and Mississippi, that it should build and maintain a draw-bridge, which, when open, would leave in the channel of the Pearl river space for passing vessels

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at least 60 feet wide; and there is nothing in the said act or in the legislation by congress (15 St. 38, Act March 2, 1868) which, expressly or by implication, in any degree diminishes the legal obligation of the railway company to construct and maintain such a draw-bridge.

In Error to the Circuit Court of the United States for the Southern District of Mississippi.

The following clauses in an act of the legislature of Mississippi, approved February 7, 1867, relating to plaintiff in error, are referred to in the opinion: "And it is also provided that said company is authorized and empowered to construct and maintain its said railroad over and across any of the waters of this state on the line of the same by bridges: provided, however, that in the central portion of the channel of the Pearl river, of the Bay of St. Louis, of the Bay of Biloxi, and of the East Pascagoula river, and in each of them, said company shall construct and maintain a draw-bridge, which, when open, shall give a clear space for the passage of vessels, of not less than sixty feet in width, and said company, after the construction of the said draw-bridges, shall, at all times thereafter, provide that said draw-bridges shall be opened for the passage of any and all vessels seeking to pass through the same without unnecessary delay: provided, however, that in case the company shall locate the line of their road across the channel of the Rigolet, at a point south of or below the principal entrance of Pearl river into the Rigolet, then the said company shall not be required to construct a draw-bridge across any bayou leading into Pearl river, or across any small pass or mouth of said river. It is also provided that such part of this section as relates to Pearl river, if the line of the road shall be located across the said river at a point where it constitutes the boundary line between the state of Mississippi and the state of Louisiana, shall not take effect until the state of Louisiana has consented to and author.. ized the same, or said company has built such a bridge across said Pearl river, for its said railroad, as shall be in accordance with this section, and also with any authority or power granted to said company by the said states of Louisiana in the premises, and such draw-bridge may be built in the center of the channel of said Pearl river, or in that portion of the same within the territory of the state of Louisiana or of this state, as most convenient for public use." Laws Miss. 1867, pp. 332, 335, 336.

Also the following clauses in an act of the legislature of Louisiana, approved August 19, 1868, in reference to the same company: "And it is also provided that said company is authorized and empowered to construct and maintain its said railroad over and across the waters of the state of Louisiana, known as the Pass Chef Menteur, Little Rigolet, Great Rigolet, or that part of Lake Pontchartrain east of the west line of Point aux Herbs, and the West Pearl river, and other streams and bayous between Lake Pontchartrain and Pearl river, and Pearl river, by bridges: Provided, however, that in the channel of that part of Lake Pontchartrain hereinbefore named, there shall be constructed and maintained by said company a draw-bridge, which, when open, shall give a clear space for the passage of vessels, of not less than one hundred feet in width; and in the channel of the Pearl river the said company shall construct and maintain a draw-bridge, which, when open, shall give clear space for the passage of vessels, of not less than sixty feet in width. except in case the company shall locate their road across the Great Rigolet at a point south of (or below) the principal entrance of Pearl river into the Great Rigolet, when the company shall only be required to construct one drawbridge, which shall be in the channel of the Great Rigolet, as herein before named; and said company, after the construction of the said draw-bridges or draw-bridge, shall, at all times thereafter, provide that said draw-bridges or draw-bridge shall be opened for the passage of any and all vessels through the same without unnecessary delay. It is also provided that said part of this section as relates to Pearl river, if the line of the road shall be located across

the said river at a point where it constitutes the boundary line between the state of Louisiana and the state of Mississippi, shall not take effect until the state of Mississippi has consented to and authorized the same, or said company has built such a bridge across said Pearl river for its said railroad as shall be in accordance with this section, and also with any authority or power granted to said company by the state of Mississippi in the premises; and such draw-bridge may be built in the center of the channel of said Pearl river, or in that portion of the same within the territory of the state of Mississippi, or of this state, as most convenient for public use." Acts La. 1868, No. 28, p. 32.

Gaylord B. Clark and Thos. L. Bayne, for plaintiff in error. J. Z. George, for defendant in error.

*HARLAN, J. This case has been heretofore in this court upon a question of jurisdiction, and is reported as Railroad Co. v. Mississippi, 102 U.S. 135. The supreme court of Mississippi, in accordance with our decision, reversed the judgment of the inferior state court, with directions to set aside all orders made subsequent to the presentation of the company's petition and bond for the removal of the cause, and to proceed no further. The case was thereafter tried in the circuit court of the United States. The object of the suit is, by mandamus, to compel the railroad company, whose line extends from Mobile to New Orleans, to construct and maintain in the channel of Pearl river, where that stream is crossed by the company's road, on the line between Mississippi and Louisiana, a draw-bridge, which, when open, will give a clear space of not less than 60 feet in width for the passage of vessels. It would seem from the uncontroverted allegations of the petition that the bridge originally constructed by the company across Pearl river had no draw, although the channel, at that point, according to the coast chart, has about 45 feet* depth of water, and the river is nearly 300 yards in width. But, in the answer filed in the circuit court, it was averred, and the demurrer to it admitted, that there was, at that time, a draw which gave a clear space for the passage of vessels of 34 to 36 feet in width. By the final judgment, a peremptory mandamus was awarded requiring the company to remove the present bridge, and in lieu thereof construct and maintain one giving a clear space of not less than 60 feet in width. It is provided in the judgment that such draw-bridge may be built "either in the center of the channel of Pearl river, or in that portion of the same within the territory of the state of Louisiana," or of Mississippi, as "may be most convenient for public use." The controlling question is whether the railroad company is under any legal obligation to construct and maintain a draw-bridge of the kind specified in the judg ment of the circuit court.

The company was incorporated by an act of the general assembly of Alabama, approved November 24, 1866, with authority to construct a railroad from the city of Mobile to any point on the line between Alabama and Missis sippi; and also, in continuation thereof, a railroad through Mississippi and Louisiana, with such rights, privileges, and franchises as might be granted to the corporation by the latter states. Laws Ala. 1866-67, p. 6. Its existence as a corporation was recognized and approved by an act of the legisla ture of Mississippi, approved February 7, 1867, by which it was permitted to have, exercise, and enjoy, within that state, the rights, powers, privileges, and franchises granted to it by the state of Alabama, subject to the conditions, provisions, and restrictions presented in said act, and by the general laws of Mississippi. By the same act the company was authorized to construct and maintain a railroad from any point on the line between Mississippi and Louisiana, thence towards and to any point on the line between Mississippi and Alabama, and extend the same, as contemplated in its act of incorporation, from the western boundary of the state to New Orleans, and from its eastern boundary to Mobile. It was given a right of way across any waters, water

courses, rivers, bay, inlet, street, highway, turnpike, or canal within Mississippi, subject, however, to the condition that "the said company shall preserve any water-course, street, highway, turnpike, or canal which its said railroad may so pass upon, along, intersect, touch, or cross, so as not to impair its usefulness to the public unnecessarily; or, if temporarily impaired in and during the construction of said railroad, the said company shall restore the same to its former state, or to such state that its usefulness and convenience to the public shall not be unnecessarily or materially impaired or injured."

But that part of the act which has special reference to the issues in this case, and upon the construction and effect of which depend the rights of the parties, is given in the statement preceding this opinion. It will be observed that reference is made to "the central portion of the channel of the Pearl river," and also to the "principal entrance of Pearl river into the Rigolet." It was not disputed in argument that two distinct localities are here described. Pearl river is about 375 miles in length. It rises in the center of Mississippi, and is navigable by small craft, in good stages of water, as far as Jackson, the capital of the state. Running south wardly, it empties by one of its mouths into Lake Borgne, and by other mouths into the Rigolet-commonly called the Great Rigolet. The main or eastern branch of the Pearl, emptying into Lake Borgne, constitutes, for about 100 miles above its mouth to the 31st deg. of north latitude, the dividing line between Mississippi and Louisiana. 3 St. 348. The other branch, constituting a water-way between the main river and the Great Rigolet, is wholly within the state of Louisiana. It is clear that the words “in the central portion of the channel of the Pearl river" have reference to the main or eastern branch, which constitutes the dividing line between Mississippi and Louisiana, and consequently that it was in the channel of that branch (if the road was located across it) that the company was required to construct and maintain a draw-bridge, giving a clear space of not less than 60 feet in width.

But the company's contention is that the legislature of Mississippi intended to relieve it from all obligation to construct a draw-bridge in that branch of Pearl river, upon its locating the road at some point "south of or below the principal entrance of Pearl river" into the Great Rigolet; this, because, in that contingency, the act expressly declares that the company “shall not be required to construct a draw-bridge across any bayou leading into Pearl river, or across any small pass or mouth of said river." This construction of the statute necessarily implies that the legislature of Mississippi-although carefully providing that the water-courses and other highways of the state, across which the road was constructed, should be preserved against material or permanent impairment of their usefulness to the public—was willing, in consideration merely of the road being located in Louisiana south of or below the principal entrance of the Pearl river into the Great Rigolet, to have the mouth of the main or eastern branch of that river closed entirely against vessels engaged in commerce. We say "closed entirely," because the position of the company is that the present draw-bridge was constructed by it voluntarily, and without any legal obligation whatever to do so; and that it has the right, consistently with the restrictions imposed upon it by the Mississippi act, to span Pearl river with a bridge having no draw, and, consequently, with a bridge that would wholly prevent vessels passing from Lake Borgne into Pearl river, or from Pearl river into Lake Borgne.

There is just enough in the peculiar and confused wording of the Mississippi statute to furnish plausible ground for such a construction of its provisions. But we are satisfied that the state did not intend to put it in the power of the railroad company to destroy, for all purposes of navigation, that branch of Pearl river which empties into Lake Borgne. There is no ground to infer from the words of the act that a draw-bridge of the kind indicated "in the central portion of the channel of Pearl river" was deemed of

any less consequence than like draw-bridges in the Bay of St. Louis, the Bay of Biloxi, and East Pascagoula river. By language almost too clear to require construction, it was made a condition of the exercise within Mississippi of the corporate privileges and franchises of the company that it should construct and maintain in each of those water-ways across which its road might be located, a draw-bridge which when open would give a clear space of not less than 60 feet in width. This construction finds strong support in the clause immediately succeeding that which refers to the possible location of the road at a point south of the principal entrance of the Pearl river into the Great Rigolet. If the line of the road was located across the Pearl river at a point where it constitutes the dividing line between Mississippi and Louisiana, then the section, so far as it related to Pearl river, was not to take effect until Louisiana gave its assent, or the company built such a bridge across the Pearl river as was in accordance as well with that section as with the authority granted to the company by Louisiana; in which event "such drawbridge may be built in the center of the channel of said Pearl river, or in that portion of the same within the territory of the state of Louisiana, or of this state, as may be most convenient for public use." So far from the legislature being willing to dispense with a draw 60 feet in width across the channel of Pearl river upon the location of the road south of the principal entrance of Pearl river into the Great Rigolet, it would seem that great care was taken to secure the assent of Louisiana to just such a bridge across Pearl river as the Mississippi act contemplated.

The error in the argument in behalf of the company is in assuming it to Le indisputably clear that the words "mouth of said river," in the clause or proviso relating to the location of the road south of the principal entrance of Pearl river into the Rigolet, refers to the mouth of that branch of Pearl river which empties into Lake Borgne. That construction of the words "mouth of said river" implies that there was some provision of the Mississippi act requiring the company to construct its draw-bridge at the junction between Pearl river and Lake Borgne. But no such provision is contained in the act. Had the road not been located south of the principal entrance of Pearl river into the Great Rigolet, the company could have constructed its draw-bridge in the channel of the main river at any point above its mouth on the line between Mississippi and Louisiana. We incline to the opinion that the words "mouth of said river" were intended to refer to one of the mouths of that branch of the Pearl emptying into the Great Rigolet. The Pearl formed, or was supposed to form, a junction with the Great Rigolet by more than one mouth. There is a principal entrance or mouth, or the Mississippi legislature supposed there was, and there is, or there was supposed to be, a small pass or small mouth of that branch of the Pearl in the same locality. If the road was located across the channel of the Great Rigolet south of, or below, the principal entrance of the Pearl river into the Great Rigolet, the water-way connecting Pearl river and the Great Rigolet would not be materially obstructed by the railroad bridge across the latter; and it would, consequently, not be vital to the people of Mississippi, interested in the navigation of the river, that draw-bridges should be constructed across bayous leading into Pearl river, in that locality, or across any small pass or [small] mouth of said river, near the line upon which the road was located. As the location of the road south of the principal entrance of Pearl river into the Rigolet would secure unobstructed navigation between the Great Rigolet and the main river, through that branch of Pearl river which empties into the Great Rigolet, the legislature of Mississippi was willing to declare that the construction and maintenance of draw-bridges across "any bayou leading into Pearl river, or across any small pass or [small] mouth of said river," was not a condition precedent to the exercise by the company within her limits of its corporate franchises and privileges. Such, we think, is the more reasonable construc