2. COURTS 387(4) FEDERAL SUPREME COURT ERROR TO PHILIPPINE COURTQUESTION OF FACT.

The national Supreme Court on writ of error to the Supreme Court of the Philippines cannot examine questions of fact.

Motions for new trials were denied, and the case was taken to the Supreme Court of the Islands by the railroad company, and that court modified the judgment by reducing the award for one of the parcels, containing 16,094 square meters, to the sum of P6,500

In Error to the Supreme Court of the Phil- and the damages for the remaining parcels ippine Islands. were fixed at the same proportionate amount. The company says, however, that

Condemnation proceedings by the Manila Railroad Company against the Tayabas Land Company, assignee and successor of Romana Velasquez and others. Judgment was modified by the Supreme Court of the Philippine Islands, by reduction of award of compensation, and the Land Company brings error. Affirmed.

*Messrs. David A. Baer, of Washington, D. C., and C. W. O'Brien, of Manila, P. I., for plaintiff in error.

Messrs. Edward S. Bailey, of Washington, D. C., and C. A. De Witt, of New York City, for defendant in error.

who were first impleaded in the cause. These values it is not necessary to give nor to designate the properties to which they were attached, for the reason that the ownership of the properties, part before and part after the rendition of the commissioners' report, had become vested in the Tayabas Land Company.

Mr. Justice MCKENNA delivered the opin

ion of the Court.

A case of eminent domain exercised by the railroad company to condemn twelve small parcels of land in Lucena, Province of Tayabas, Philippine Islands, in accordance with the petition of the railroad company.

In accordance with the statutory provisions three commissioners were appointed to hear the parties and inspect the properties. They subsequently reported that the parties had been heard and that they, the commissioners, had inspected the properties and examined the same "inch by inch."

In accordance with the report judgment was rendered in favor of the land company for P81,412.75 with interest at the rate of 6 per cent. from the date of taking possession of the land.

"The prime question involved in this entire case is in the last analysis one of value, that is, what is a fair value of the land taken by the railroad company for its railroad station at Lucena?"

That, indeed, is the ultimate inquiry but it depends, according to other contentions, upon the power of the Supreme Court over the report of the commissioners and to re

view and consider the evidence. In other words, the weight that was to be given to the report of the commissioners as a matter

of fact and law under section 246 of the

Code of Civil Procedure of the Islands and to the findings of the Court of First Instance under sections 273 and 497 of the same Code.

Section 273 describes the elements that must be considered in determining in a case where "the preponderance or superior weight of the evidence on the issues involved lies," and section 497 provides for the extent of the power of the Supreme Court to review and dispose of the case on ap*peal, and it is contended that the Supreme Court was bound, as the Court of First Instance was, to decide by the preponderance of the evidence determined in the same way. This may be conceded, and to what extent the Supreme Court satisfied the requirement of the section we shall presently consider after we have given attention to the more insistent contention based on section 246, which reads as

follows:

They made further detail of their proceedings, set forth certain causes for the increase in value of the properties in the four or five years preceding the hearing, even before the coming of the railroad to the town "so that the value of land near Cotta was quoted at P2.00 up per square meter, accord- "Upon the filing of such report in court, the ing to the importance and situation of the court shall, upon hearing, accept the same and land," but that the railroad had "undoubted-render judgment in accordance therewith; or, ly greatly influenced the rise in the prices of for cause shown, it may recommit the report the same lands." They reported, however, to the commissioners for further report of facts; or it may set aside the report and apthat, taking into consideration all the circum-point new commissioners; or it may accept the stances, benefits to the railroad and others, report in part and reject it in part, and may they unanimously fixed the values of the make such final order and judgment as shall pieces of property belonging to the parties secure to the plaintiff the property essential

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(39 Sup.Ct.)

to the exercise of his rights under the law, and [gation, that is, in determining upon the to the defendant just compensation for the land weight of the evidence, its estimate of the so taken; and the judgment shall require pay-values of the properties taken by the railroad ment of the sum awarded as provided in the was different from that of the Court of First! next section, before the plaintiff can enter up- Instance. We are brought back, therefore, on the ground and appropriate it to the public to the consideration of section 246 and the contention of appellants that under it the Supreme Court had transcended its powers in reducing the values found and reported by the commissioners, and “erred in holding as a matter of law that appellants were not entitled to recover the amount fixed by the commissioners," they being the tribunal to hear the evidence and view the premises, and that under section 246, their report being filed, the court was required "upon hearing to accept the same and render judgment in accordance therewith," there being no cause shown, it is contended, for recommitting the report or exercising any of the other alternatives permitted by the section.

(250 U. S. 39)

the river in the shape of a horseshoe, which STATE OF ARKANSAS v. STATE OF MIS- was known as Horseshoe Bend. It is averSISSIPPI. red in the bill, that in 1848 the river sud(Argued March 3 and 4, 1919. Decided May the points of the bend, cutting off a tract of denly left its course and ran westerly across

19, 1919.)

No. 7, Original.

land which has become known as Horseshoe Island. The amended answer avers that this avulsion occurred in 1842; but the exact date is immaterial. That it did occur is

1. COURTS 347-FEDERAL COURT-PLEAD

ING-REPLICATION.

Under new equity rule 31 (33 Sup. Ct. xxvii), no replication is required to make the issues, so absence thereof does not require allegations of answer to be taken as true. 2. STATES 12(2) — BOUNDARIES-NAVIGABLE STREAMS.

clearly established, and it is generally spoken of in the testimony as happening in 1848. We may say preliminarily that we find no substance in the contention of the respondent that the allegations of the answer must be taken as true for want of replication. Under new equity rule 31 (33 Sup. Ct. xxvii) in a case of this character no replication is required in order to make the issues.

[2] The state of Arkansas contends that the old course of the river before the avulsion was within a body of water now known as Horseshoe Lake or Old river, a body of

3. STATES 13-BOUNDARIES-STATE DECI- water of considerable length and depth. The SIONS AND CONSTITUTIONS. state of Mississippi contends that the Old river ran through a body of water still remaining, but considerably further to the north, and known as Dustin Pond, and that before the avulsion the course of the river on the upper side of the Bend was considerably to the westward of the course claimed by Arkansas, and ran where now there is a slough 12(2)—BOUNDARIES-STREAMS- not far from the middle of Horseshoe Island.

These diverse claims are illustrated by an examination of the map, Exhibit A, attached to the bill.

As we view the case it is practically controlled by the decision of this court in Arkansas v. Tennessee, 246 U. S. 158, 38 Sup. Ct. 301, 62 L. Ed. 638, L. R. A. 1918D, 258. In view of that decision we are relieved of the necessity of a discussion in detail of much that is urged upon our attention now. Arkansas was admitted to the Union June 15, 1836 (5 Stat. 50, 51, c. 100) by an act of Congress which as to its boundaries provided:

Where boundary on a navigable river of two states on opposite sides of and separated by it is fixed in the case of the one first admitted "up the same," and in case of the other as "the middle of the main channel," it is the middle of the main navigable channel, and not along the line equidistant between the banks.

Provisions of Constitutions of Mississippi and Arkansas, and decisions of courts thereof, relative to part of Mississippi river constituting boundary between those states, held, in suit between those states to determine such boundary, not to affect the question on the theory of acquiescence.

4. STATES AVULSION.

After change by avulsion of course of stream, the middle of the channel of navigation, as it existed just before the avulsion, continues to be as it was theretofore, the boundary between

states.

In Equity.

Original suit by the State of Arkansas against the State of Mississippi. Interlocutory decree appointing commission to fix boundary in accordance with the opinion.

Messrs. Herbert Pope, of Chicago, Ill., Walter P. Armstrong, of Sardis, Miss., and J. M. Moore, of Little Rock, Ark., for complainant.

"Beginning in the middle of the main channel of the Mississippi river, on the parallel of thirty-six degrees north latitude, running from thence west, with the said parallel of latitude to the St. Francis river; thence up the middle of the main channel of said river to the parallel of thirty-six degrees thirty minutes north;

Mr. Justice DAY delivered the opinion of from thence west to the southwest corner of the the Court.

state of Missouri, and from thence to be bound[1] This is a suit brought to determine a ed on the west, to the north bank of Red river, portion of the boundary line between the by the lines described in the first article of the states of Arkansas and Mississippi. It ap- treaty between the United States and the Cherpears that at the place in dispute the Mis-okee Nation of Indians west of the Mississippi, sissippi river formerly had its course from made and concluded at the city of Washington Friar's Point in a southwesterly direction, on the 26th day of May, in the year of our Lord one thousand eight hundred and twenty-eight; then made a turn to the south, flowing in a and to be bounded on the south side of Red southerly direction, then a turn towards the river by the Mexican boundary line, to the *west in the shape of a half moon, then a northwest corner of the state of Louisiana; sharp turn to the north and flowing norther- thence east, with the Louisiana state line, to ly, and thence westerly, making a bend in the middle of the main channel of the Missis

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Messrs. Garner W. Green, of Jackson, Miss., and Gerald Fitz Gerald, of Clarksdale, Miss., for defendant.

(39 Sup.Ct.)

Mississippi had previously been admitted to the Union by an act of Congress of March 1, 1817 (3 Stat. 348, c. 23), which provided:

sippi river; thence up the middle of the main "That the consent of the Congress of the Unitchannel of the said river, to the thirty-sixth ed States is hereby given to the states of Misdegree of north latitude, the point of beginning." sissippi and Arkansas to enter into such agreement or compact as they may deem desirable or necessary, not in conflict with the Constitution of the United States, or any law thereof, to fix the boundary line between said States, where the Mississippi river now, or formerly, formed the said boundary line, and to cede respectively each to the other such tracts or parcels of the territory of each state as may have become separated from the main body thereof by changes in the course or channel of the Mississippi river and also to adjudge and settle the jurisdiction to be exercised by said states, respectively, over offenses arising out of the violation of the laws of said states upon the waters of the Mississippi river." Approved January 26, 1909.

"Beginning on the river Mississippi at the point where the southern boundary line of the state of Tennessee strikes the same, thence east along the said boundary line to the Tennessee river, thence up the same to the mouth of Bear creek; thence by a direct line to the northwest corner of the county of Washington [Alabama]; thence due south to the Gulf of Mexico; thence westwardly, including all the islands within six leagues of the shore, to the most eastern junction of Pearl river with Lake Borgne; thence up said river to the thirty-first degree of north latitude: thence west along the said degree of latitude to the Mississippi river; thence up the same to the beginning."

No specific agreement appears to have been entered into under this act; but it is insisted that Arkansas and Mississippi by their respective Constitutions have fixed the bound*It will be observed that the language of ary line, as it is now claimed to be by the the Mississippi act, so far as now important state of Mississippi, and that such boundary to consider, fixes the boundary upon the Mis- line has become the true boundary of the sissippi river as "up the same to the begin-states, irrespective of the decision of this ning," and the language of the Arkansas act court in Iowa v. Illinois, supra, followed in We have exis, "Beginning in the middle of the main Arkansas v. Tennessee, supra. channel of the Mississippi river; amined the Constitutions and decisions of thence east, with the Louisiana state line, to the respective states, and find nothing in the middle of the main channel of the Mis- them to change the conclusions reached by sissippi river; thence up the middle of the this court in determining the question of main channel of the said river, to the 36th boundary between states. A similar contendegree of north latitude, the point of begin- tion was made in Arkansas v. Tennessee as ning."

*

The state of Arkansas contends that these acts of Congress fix the middle of the channel of navigation as it existed before the avulsion as the boundary line between the states. By the state of Mississippi it is contended that the boundary line is a line equidistant from the well defined banks of the river. Language to the same effect as that contained in the acts of admission now before us was before this court in the case of Arkansas v. Tennessee, supra, and in that case the subject was considered, and the meaning of the Arkansas act, and similar language in the act admitting the state of Tennessee was interpreted. The rule laid down in Iowa v. Illinois, 147 U. S. 1, 13 Sup. Ct. 239, 37 L. Ed. 55, was followed, and it was held that where the states of the Union are separated by boundary lines described as "a line drawn along the middle of the river," or as "the middle of the main channel of the river," the boundary must be fixed at the middle of the main navigable channel, and not along the line equidistant between the banks. We regard that decision as settling the law, and see no reason to depart from it in this instance.

[3] It is urgently insisted that the laws and decisions of Arkansas and Mississippi are to the contrary, and our attention is called to Joint Resolution of Congress of 1909, 35 Stat. 1161, No. 5, which provides:

to the effect of the Arkansas and Tennessee
legislation and decisions, and the contention
that the local law and decisions controlled in
a case where the interstate boundary was
required to be fixed, under circumstances
very similar to those here presented, was re-
jected. In that case the Arkansas cases,
which are now insisted upon as authority
for the respondent's contention, were fully
reviewed. The Mississippi cases called to our
attention, of which the leading one seems to
be Magnolia v. Marshall, 39 Miss. 109, as
well as the legislation of the *state, seem to
sustain the claim that local jurisdiction and
right of soil to the middle of the river, is
fixed by a line equidistant from the banks.
But whatever may be the effect of these de-
cisions upon local rights of property or the
administration of the criminal laws of the
state, when the question becomes one of fix-
ing the boundary between states separated
by a navigable stream, it was specifically
held in Iowa v. Illinois, supra, followed in
later cases, that the controlling considera-
tion is that which preserves to each state
equality in the navigation of the river, and
that in such instances the boundary line is
the middle of the main navigable channel of
In Arkansas v. Tennessee, supra,
the river.
246 U. S. page 171, 38 Sup. Ct. page 304 (62
L. Ed. 638, L. R. A. 1918D, 258), we said:

"The rule thus adopted [that declared in Iowa v. Illinois] known as the rule of the 'thalweg.

has been treated as set at rest by that decision. Louisiana v. Mississippi, 202 U. S. 1, 49 [26 Sup. Ct. 408, 50 L. Ed. 913]; Washington v. Oregon, 211 U. S. 127, 134 [29 Sup. Ct. 47, 53 L. Ed. 118]; 214 U. S. 205, 215 [29 Sup. Ct. 631, 53 L. Ed. 969]. The argument submitted in behalf of the defendant state in the case at bar, including a reference to the notable recent decision of its Supreme Court in State v. Muncie Pulp Co. (1907) 119 Tennessee, 47 [104 S. W. 437], has failed to convince us that this rule ought now, after the lapse of 25 years, to be departed from."

We are unable to find occasion to depart from this rule because of long acquiescence in enactments and decisions, and the practices of the inhabitants of the disputed territory in recognition of a boundary, which have been given weight in a number of our cases where the true boundary line was difficult to ascertain. See Arkansas v. Tennessee, supra, and the cases cited at page 172 of 246 U. S. (38 Sup. Ct. 301, 62 L. Ed. 638, L. R. A. 1918D, 258).

[4] This record presents a clear case of a change in the course of the river by avulsion, and the applicable rule established in this court, and repeatedly enforced, requires the boundary line to be fixed at the middle of the channel of navigation as it existed just previous to the avulsion. The location and determination of such bound*ary is a matter which we shall leave in the first instance to a commission of three competent persons to be named by the court upon suggestion of counsel, as was done in Arkansas v. Tennessee. See 247 U. S. 461, 38 Sup. Ct. 557, 62 L. Ed. 1213. This commission will have before it the record in this case, and such further proofs as it may be authorized to receive by an interlocutory decree to be entered in the case. Counsel may prepare and submit the form of such decree.

(250 U. S. 71)

fendant was deprived of a right, privilege, or immunity under the Constitution of the United States and treaties made thereunder, properly set up and claimed, such a federal question would not, under Judicial Code, § 237, as amended by Act Sept. 6, 1916, § 2 (Comp. St. § 1214), give the national Supreme Court jurisdiction to review by writ of error the resulting judg ment.

3. COURTS

394(8)—SUPREME COURT-Error TO STATE COURT-VALIDITY OF AUTHORITY EXERCISED UNDER UNITED STATES.

Ruling of state Supreme Court, setting aside continuance till decision of original suit between states in national Supreme Court to determine state boundary, of cause between individuals involving the state boundary pending in state court on appeal, is not an adverse decision on an authority exercised under the United States, giving the national Supreme Court jurisdiction by writ of error under Judicial Code, § 237, as amended by Act Sept. 6, 1916, § 2 (Comp. St. § 1214), but at most affords ground for application for review of the resulting judgment by certiorari, as deciding against an asserted title, right, privilege, or immunity under the federal thority of the national Supreme Court to renConstitution; the ruling not involving the auder a conclusive decision in the suit between the states, but merely the consequences that were to flow from exercise of such admitted authority.

4. CERTIORARI

40-SUPREME COURT-CER

TIORARI TO STATE COURT-TIME OF APPLICA-
TION.

Application to national Supreme Court for writ of certiorari to state court, being after expiration of the three months limited by Act Sept. 6, 1916, § 6 (Comp. St. § 1228a), cannot be entertained.

In Error to the Supreme Court of the State of Mississippi.

Replevin by Ed Jackson and others against the Rust Land & Lumber Company. Judgment for plaintiffs was affirmed by the Supreme Court of Mississippi (73 South. 345), and defendant brings error, and applies for writ of certiorari. Dismissed and denied. * Messrs. Albert M. Kales, Herbert Pope, Stephen A. Foster, and Harry Eugene Kelly, Decided May 19, all of Chicago, Ill., for plaintiff in error.

RUST LAND & LUMBER CO. v. JACKSON
et al.
(Argued March 4, 1919.
1919.)

No. 171.

Messrs. Garner W. Green and Marcellus Green, both of Jackson, Miss., and Gerald Fitz Gerald, of Clarksdale, Miss., for de

1. COURTS 391(1)—SUPREME COURT-RE- fendants in error. VIEW OF STATE COURT.

Judgment of state Supreme Court, rendered after taking effect of Act Sept. 6, 1916, is reviewable by national Supreme Court. if at all, only by virtue of that act and in accordance with its provisions.

Mr. Justice PITNEY delivered the opinion of the Court.

This case was brought on for argument immediately following Arkansas v. Mississippi, No. 7, Original, 250 U. S. 39, 39 Sup. Ct. COURTS394(25)—SUPREME COURT-ER-422, 63 L. Ed. —, this day disposed of. ROR TO STATE COURT-STATE BOUNDaries. It was a replevin suit, brought in the cirThough in the state court the issue involv-cuit court of one of the counties of Missising the location of the boundary lines between sippi by defendants in error to recover cerstates was submitted to the jury by instructions tain timber taken by plaintiff in error from based on a wrong principle, and thereby de- their possession under a claim of ownership.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes