Fourth Infantry will remain at Canton- ABRAHAM WOLFF, Piff. in Err., ment Clinch, and, should Col. Clinch have rejoined his regiment, on the receipt of this order he will be charged with the duty of preparing Col. Brooke's command for the expedition to Tampa.

It will be seen that the direction is to "establish a military post." It was for this "post" that the tract in controversy was taken, and the statement in the report of Colonel Brooke, as one of the reasons for its selection, that, some 2 miles in the rear of the place, a ridge of piney lands commences, to which the troops could retire with their tents on the slightest manifestation of disease, does not alter the fact that this tract was selected for the "post." The further fact that permanent headquarters of the Fourth Infantry were to remain at Cantonment Clinch is entirely consistent Argued November 11, 1904. Decided Januwith the direction to Colonel Brooke to proceed with four companies to Tampa bay and

the sidewalks free of obstructions and nui- | stones, such as the one described in this sances, one of which, it was alleged, said case, which cannot be held to constitute a stone was. And further, that it was the nuisance. They are in some respects inciduty of the District of Columbia to keep dental to the proper use of the street as a the streets properly lighted. In neglect of public highway. The stepping both, it was alleged, it did "allow and suf- stone in this case, located upon the sidefer" the stone to be securely fastened into walk in front of a private house, was a and remain upon the sidewalk, and did reasonable and necessary use of the street, "keep and continue" it there during the not only for the convenience of the owner nighttime of the 27th of October, without of the house, but for other persons who dea light to show its presence or a watchman sired to visit or enter the house for busito notify wayfarers of its existence. Dam-ness or other lawful purposes." ages were laid at $25,000. The District of Columbia pleaded not guilty. A jury was impaneled. At the conclusion of the testimony the District moved the court to instruct a verdict for it on the ground that the plaintiff had not made out a case. The motion was granted, and a verdict in accordance with the instructions. A motion for a new trial was made and denied, and the case was then taken to the court of appeals, which affirmed the judgment of the court below. 21 App. D. C. 464.

The first contention of plaintiff in error is that the stone was an unlawful obstruction per se. This is deduced as a consequence from § 222 of the Revised Statutes of the District of Columbia, which reads as follows:

"No open space, public reservation, or other public ground in the city of Washington, nor any portion of the public streets or avenues in said city, shall be occupied by any private person or for any private purpose whatever."

This section cannot be construed to prohibit putting upon a street any object with out regard to its effect on the use of the street. The sweeping character of such a construction need not be pointed out. There are objects which subserve the use subserve the use of streets, and cannot be considered obstructions to them, although some portion of their space may be occupied. This is illustrated by a number of cases.

In Dubois v. Kingston, 102 N. Y. 219, 55 Am. Rep. 804, 6 N. E. 273, a stepping stone 3 feet 4 inches in length and 20 inches wide was placed on the edge of the sidewalk. The court observed that the stone was not of unusual size or located in an improper place, and that it would be extending the liability of cities too far to hold them liable for permitting stepping stones on the edge of sidewalks.

It was further remarked: "The question involved in this class of cases is whether an object complained of is usual, reasonable, or necessary in the use of the street by the owner of the premises, or anyone else."

Cincinnati v. Fleischer, 63 Ohio St. 229, 234, 58 N. E. 568, 569, also passed upon a city's liability for the existence of a stepping stone upon a sidewalk. The court said: "It [the stone] was within that portion of the street by the curb, which, according to common knowledge, is devoted to carriage blocks, lamps, hitching posts, and shade trees, which pedestrians of ordinary care observe and avoid." And Elster v. Springfield, 49 Ohio St. 82, 96, 30 N. E. 274, was quoted, to the effect that "the laying of sewers, like that of gas and water pipes, beneath the soil, and the erection of lamps and hitching posts, etc., upon the surface, is a street use, sanctioned as such by their obvious purpose and long-continued usage."

It was held in Macomber v. Taunton, 100 Mass. 255, that a hitching post was not a defect in the highway for which the city was liable for permitting it to remain.

Plaintiff in error citos Scranton v. Catterson, 94 Pa. 203, and Davis v. Austin, 22 Tex. Civ. App. 460, 54 S. W. 927.

In the first case an iron water plug in the middle of a street, and projecting above its surface, was held to be a nuisance. Obviously, the case is not in point. The second case sustains the contention of plaintiff in error, but cannot be followed against the authority and reasoning of, the other cases.

2. The second contention of plaintiff in error is that it was the duty of the District of Columbia to so light the street as to show the presence of the stone thereon, the District having full knowledge thereof. This duty is made to rest mainly upon § 233 of the Revised Statutes of the District of Columbia, which is as follows:

Robert v. Powell, 168 N. Y. 411, 55 L. R. A. 775, 85 Am. St. Rep. 673, 61 N. E. "The proper authorities are directed to 699, was also an action for injuries caused increase, from time to time, as the public by a stepping stone. The court said: good may require, the number of street "There are some objects which may be lamps on any of the streets, lanes, alleys, placed in, or exist in, a public street, such public ways, and grounds in the city of as water hydrants, hitching posts, tele- Washington, and to do any and all things graph poles, awning posts, or stepping pertaining to the well lighting of the city."

This, in one sense, is but another form | given by the New Albany company in 1886, of the first contention. The duty of a city 1890, and 1894, which were foreclosed in the to especially illuminate a place where an object is, or to put a policeman on guard by it to warn pedestrians, depends upon the object being an unlawful obstruction. The plaintiff in error can claim nothing from the general duty of the city under the statute to light the streets. The exercise of such duty was necessarily a matter of judgment and discretion, depending upon considerations which this record does not exhibit.

Judgment affirmed.

(196 U. S. 128)

CHICAGO, INDIANAPOLIS, & LOUIS-
VILLE RAILWAY COMPANY, Piff. in
Err.,

PATRICK MCGUIRE et al.

Error to state court-Federal questionwhen raised in time.

The suggestion of a violation of a Federal right, first made in a petition for the review, in the highest state court, of the judgment of an intermediate appellate court, is too late to serve as a basis for the exercise of the appellate jurisdiction of the Supreme Court of the United States, where it does not affirmatively appear that the state court passed upon the Federal question, and the denial of the petition may well have been upon the ground that the question, not having been suggested in the court below, could not be made available on appeal.

[No. 69.]

Argued December 2, 5, 1904. Decided January 3, 1905.

United States circuit court, and through which foreclosure and subsequent sale its title became vested; defendants, through a judgment recovered by McGuire September 24, 1896, in the circuit court of White county, against the New Albany company for $2,416.30, upon which an execution was issued October 16, 1897, to the sheriff of Pulaski county, and a levy made upon the real estate in dispute. A sale was made November 13, 1897, to the defendant Hathaway, to whom a deed was executed by the sheriff November 23, 1898.

It was insisted by the plaintiff railroad company that the property in controversy was a part of the ground appurtenant to its station at Francesville, Indiana, and that the foreclosure and sale of the property of the New Albany road, through which it obtained its title, carried with it the title to the premises in dispute. The judgment of McGuire was obtained after the execution of the mortgages through which the plaintiff claimed its title. Defendants insisted that the disputed property was not embraced within the mortgages under the after-acquired property clause inserted therein, because entirely foreign to the operation of the railroad, and therefore could not have been embraced within the foreclosure and sale.

their contention, held that the trial court The appellate court of Indiana sustained was right in instructing the jury to return a verdict for the appellees, and affirmed its judgment. 31 Ind. App. 110, 99 Am. St. Rep. 249, 65 N. E. 932. The supreme court denied a petition for review.

Messrs. H. R. Kurrie, G. W. Kretzinger, and E. C. Field for plaintiff in error. Messrs. W. H. H. Miller and Maurice

N ERROR to the Appellate Court of the State of Indiana to review a judgment Winfield for defendants in error. which affirmed a judgment of the Circuit Court for Pulaski County in that State entered on a verdict in favor of defendants in a suit to quiet title and for an injunction. Dismissed for want of jurisdiction. See same case below, 31 Ind. App. 110, 99 Am. St. Rep. 249, 65 N. E. 932.

Mr. Justice Brown delivered the opinion of the court:

Statement by Mr. Justice Brown: This was a suit in the nature of a bill in equity instituted in the circuit court for Pulaski county, by the railroad company, to quiet its title to certain land, and for an injunction. The case was tried before a jury, and a verdict returned for the defendants, under instruction of the court.

Both parties claimed title through the Louisville, New Albany, & Chicago Railway Company, plaintiff in error, which was also plaintiff below,-through certain mortgages'

Motion is made to dismiss this writ of error upon two grounds: (1) That the supposed Federal question was not set up and claimed until too late; (2) that there is no Federal question in the case.

The motion must be sustained upon the first ground. The Federal question now put forward by the plaintiff is that the appellate court failed to give full faith and credit to the foreclosure decree made by the circuit court of the United States and the sale in pursuance thereof, in refusing to hold that the mortgages foreclosed by said decree covered and included in their description of the property therein conveyed the real estate in controversy. This question, however, never seems to have been presented

either to the court of first instance or to the court of appellate jurisdiction. It is true the question was argued at length as to what was intended to be covered by the description in the mortgages and by the foreclosure and sale, but the Federal character of this question was not indicated until after a petition for a rehearing in the appellate court had been overruled. Plaintiff then filed in the supreme court of the state a petition for the transfer of the cause to that court, and, as grounds for such transfer, insisted that the appellate court erred in holding that the property in controversy was after-acquired property not used for railway purposes, and on this account was not within the mortgages upon which appellant's title was based, and that the court thereby "refused to give due effect to the judgment of the Federal court."

True, the Federal question was set up at length in the petition filed in the appellate court for a writ of error from this court, but that was clearly too late. Fowler v. Lamson, 164 U. S. 252, 41 L. ed. 424, 17 Sup. Ct. Rep. 112; Missouri P. R. 95. v. Fitzgerald, 160 U. S. 566, 575, 40 L. ed. 539, 540, 16 Sup. Ct. Rep. 389; Ansbro v. United States, 159 U. S. 695, 40 L. ed. 310, 16 Sup. Ct. Rep. 187.

In this connection the plaintiff in error urges upon us the proposition that, as it relied solely upon a title derived by a foreclosure and sale in a Federal court, the state court must necessarily have considered and decided that question, and that in such cases the Federal Constitution need not be specially set up and claimed. This argument would necessarily not apply to the supreme court of the state, which, as above indicated, might have held, and probably did hold, that the Federal question, not having been suggested in the court below, could not be made available on appeal. The appellate court did not discuss it. There are doubtless a few cases which hold that, where the validity of a treaty or statute or authority of the United States is raised, and the decision is against it, or the validity of a state statute is drawn in question, and the decision is in favor of its validity, and the Federal question appears in the record and was decided, or such decision was necessarily involved in the case, the fact that it was not specifically set up and claimed is not conclusive against a review of such question here. Columbia Water Power Co. v. Street R. Light & P. Co. 172 U. S. 475488, 43 L. ed. 521-525, 19 Sup. Ct. Rep. 247. But as the validity of no statute, state or Federal, or authority thereunder, was called in question here, this rule does not apply. The true and rational rule stated by this court in Bridge Proprietors v. Hoboken Land & Improv. Co. 1 Wall. 116-145, 17 L. ed. 571-576, is clearly applicable: "That the court must be able to see clearly from the whole record that a certain provision of the Constitution or act of Congress was re

This petition appears to have been denied by the supreme court without an opinion. Doubtless, if that court had proceeded to pass upon this as a Federal question we should have held it sufficient, but it will be observed that the petition contained a mere suggestion of a violation of a Federal right, not the distinct presentation of a Federal question, and that no reference was made to the Constitution of the United States. F. G. Oxley Stave Co. v. Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709. We are left to infer that the petition was denied because the point of constitutionality was not made in either of the courts below. The rule seems to be settled in Indiana, as in many other states, that the matter assigned in the supreme court of the state as error must have been properly presented in the court below and there adjudicated. Coleman v. Dobbins, 8 Ind. 156164; Priddy v. Dodd, 4 Ind. 84; Wesley v. Milford, 41 Ind. 415; Selking v. Jones, 52 Ind. 409; Russell v. Harrison, 49 Ind. 97. This is also the practice in this court. Cornell v. Green, 163 U. S. 75-80, 41 L. ed. 7678, 16 Sup. Ct. Rep. 969; Ansbro v. United States, 159 U. S. 695, 40 L. ed. 310, 16 Sup. Ct. Rep. 187; Pine River Logging & Improv. Co. v. United States, 186 U. S. 279-289, 46 L. ed. 1164-1169, 22 Sup. Ct. Rep. 920. If the supreme court did in fact consider the lied on by the party who brings the writ Federal question the burden was upon the plaintiff to show it. There is no presumption that the court considered such question. Under such circumstances we decline to review the constitutional question here. This was expressly held in Jacobi v. Alabama, 187 U. S. 133, 47 L. ed. 106, 23 Sup. The Federal question, if any such existed, Ct. Rep. 48; Layton v. Missouri, 187 U. S.-as to which we express no opinion,--was 356, 47 L. ed. 214, 23 Sup. Ct. Rep. 137; not set up or claimed at the proper time, Spies v. Illinois, 123 U. S. 131, 31 L. ed. 80, and the writ of error must therefore be dis8 Sup. Ct. Rep. 21. missed.

of error, and that the right thus claimed by him was denied." This case is the not infrequent one of an attempt to clutch at the jurisdiction of this court as an afterthought, when all other resources of litigation have been exhausted.

JOHN J. MOORE, Trading under the Firm | price obtained for the same upon the sale in Name of J. J. Moore & Company, Appt., open market.

And by the second contract appellant was to deliver "on wharf, as customary," about 5,000 tons of the best merchantable Australian, Seaham, Wallsend, or Pacific Cooperative steam coal, deliveries to commence Argued December 6, 1904. Decided Janu- The other facts were found by the court of at Honolulu on or about October 1, 1898.