granted by the proper authorities, and, so far as the record shows, it was granted without imposing any conditions as to its use by the public. We think the plaintiff had no right of access to the wharf founded simply upon the fact that it was erected under proper authority, in the harbor of Pensacola, and at the foot of one of the public streets of that city. The question of the rights of plaintiff must really turn upon the character of the use of the wharf, whether it is public or private.

assume, that the gravamen of plaintiff's | its own use when erected is thereby dimincomplaint is not that the defendant would ished. The right to erect the wharf was not transport plaintiff's goods, or any part of them, on defendant's lines, from the wharf in question, "but only that defendant would not permit plaintiff's goods to be at, from, or by means of defendant's wharf loaded upon, or delivered to, the said vessels," with the managers of which plaintiff had contracted to have its goods transported to other ports. This means of transportation, by such vessels as plaintiff should choose, is asserted by it as a right, because it contends that the wharf of defendant, under the averment to that effect in the declaration, and not denied, in terms, in the plea, taken in connection with the facts stated in such plea, was a public wharf, or that, at least, the defendant had devoted it to a public use. The defendant in its plea sets up facts which it avers show the wharf was not a public one. The plaintiff insists that the plea shows that the defendant built and used the wharf itself and permitted a large part of the public to use it, including, at any rate, those who were engaged in traffic handled by vessels belonging to regular lines running in connection with the defendant, and also including vessels belonging or consigned to the Gulf Transit Company, an agent of defendant, together with those who were using the wharf under some special arrangements between them and the defendant. All this, the plaintiff contends, amounted to making the wharf a public one, or at least that it thereby became a facility, to the use of which the public as a public had a right on payment of reasonable compensation. If plaintiff chose to employ, for the further transportation of its goods, the vessels with the managers of which the defendant had some business arrangement or contract, it is not denied that the defendant would and did permit such transportation. In this respect there is no allegation that the plaintiff did not have equal facilities with all other shippers. Defendant's plea avers We are of opinion that the wharf was not that it did give to plaintiff the same facili-a ties for shipping its goods over defendant's wharf that it gave to any or all shippers. In brief, the fact seems to be that the only complaint of the plaintiff is that defendant will not permit competing vessels to make use of its wharf for the purpose of such competition.

We do not see that the fact that the wharf was erected under authority from the city, at the foot of a public street of the city, makes any material difference in the character of the wharf, or that the right of plaintiff to select its own vessels to continue from that wharf the transportation of its goods is, on that ground, enhanced, or the right of defendant to control the wharf for

The argument upon the part of plaintiff is, in substance, this: True, defendant has erected a wharf, which is not in fact intended or used as the terminus of its road at Pensacola, adequate yards and depots having been furnished by the defendant for all goods and passengers destined to Pensacola only; but the wharf has been erected to enable defendant to more conveniently carry out contracts for transportation beyond its own line, which it was not compelled to make, and which it could carry out by such agencies as it chose; but the plaintiff, having goods destined for points outside of Florida, insists upon its right to use the road of defendant, not to carry these goods to Pensacola, but to defendant's wharf, so that plaintiff may there transfer them into vessels which it has arranged to take them; in order to do this it is necessary that defendant be compelled to share its possession of its own wharf with the managers of these other vessels; for this possession plaintiff is prepared to make reasonable compensation. The right on the part of the plaintiff is urged as the result of the action of defendant in permitting the use of the wharf as stated in the plea. as stated in the plea. By such use it is contended that the defendant in effect dedicated the wharf to the public; or, at least, has granted to the public an interest in the use of the wharf.

public one, but that it was a mere facility, erected by and belonging to defendant, and used by it, in connection with that part of its road forming an extension from its regular depot and yards in Pensacola, to the wharf, for the purpose of more conveniently procuring the transportation of goods beyond its own line, and that defendant need not share such facility with the public or with any carriers other than those it chose for the purpose of effecting such further transportation.

Neither the public nor the plaintiff had such an interest in the wharf as would give to either the right to demand its use on payment of reasonable hire. Nor was the wharf a depot or place of storage of the defendant

for goods to be delivered at or taken from | Sup. Ct. Rep. 185. In that case it was held the city of Pensacola for transportation by rail. The defendant had adequate depots and yards in that city for the proper storage of all merchandise committed to it for delivery at Pensacola, or there received, to be transported therefrom by defendant. All consignees of goods at Pensacola had equal facilities for obtaining them there. Although not bound originally to carry goods beyond its own terminus at Pensacola, yet the defendant might agree to do so, and it had the right, when duly authorized by the proper authorities, to construct facilities to enable it to continue such transportation beyond the line of its railroad, by such other carriers as it might agree with. The city or state authorities, in granting the right to erect such facilities, might, of course, have attached such conditions as they thought wise; but, in their absence, neither the public nor this plaintiff, as the owner of goods, would have the right, on this state of facts, to go to the wharf with vessels for the purpose of continuing transportation of goods in competition with the defendant. The defendant never became a common carrier, as to this wharf, in the sense that it was bound to accord to the public or to plaintiff a right to use it upon payment of compensation. We do not see that the plaintiff had any right even to demand that the defendant should carry plaintiff's goods on the rails defendant had laid down to reach the wharf from its depot or yards at Pensacola, the terminus of its road at that city. Those rails were only laid for the purpose of reaching the wharf, in order that defendant might carry goods to it which it had undertaken to forward, by itself or by vessels it had arranged with, beyond its line. Very likely it would be bound to carry plaintiff's goods on this part of its rails, for the same purpose and on the same terms it did for others, viz., in order that it might itself, or through others it had contracted with, forward the goods beyond its own line. But plaintiff demands more than this: it demands that defendant shall carry plaintiff's goods over its rails thus laid, in order that plaintiff may itself forward its goods by vessels of its own selection, and that defendant shall surrender possession of enough of its wharf to enable plaintiff to do so.

That the defendant had the right to choose its own agencies, and grant to them the exclusive privilege of access to its own wharf, which it built only for the purpose of continuing the transportation of goods which it had transported to the end of its line, has in effect been decided by this court. Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co. 110 U. S. 667, 28 L. ed. 291, 4'

that, although at common law the common carrier was not bound to carry beyond its own lines, yet it might contract to do so, and, in the absence of statutory regulations prohibiting it, the carrier might determine for itself what agencies it would employ to continue the transportation, and it was not bound to enter into agreements for such transportation with another because it had done so with one common carrier. Having the right, as the authorities prove, to decide what agencies it would employ for the purpose of transporting goods beyond its own line, and not being bound to enter into any contracts or arrangements with one per son or carrier because it had so contracted or arranged with another, we think it follows that defendant was not obliged to permit the public to have access to its wharf, built for the purpose stated, simply because it granted such permission to those with whom it made arrangements of the kind set forth in the plea. While refusing to make any agreement with defendant for the further transportation of plaintiff's goods beyond Pensacola, plaintiff nevertheless claims a right to use the wharf erected by defendant for its own purpose, as already stated. This cannot be sustained. The principle stated in the above case is, in substance, recognized in Gulf, C. & S. F. R. Co. v. Miami S. S. Co. 30 C. C. A. 142, 52 U. S. App. 732, 86 Fed. 407; Little Rock & M. R. Co. v. St. Louis S. W. R. Co. 26 L. R. A. 192, 4 Inters. Com. Rep. 854, 11 C. C. A. 417, 27 U. S. App. 380, 63 Fed. 775, affirming same case in 4 Inters. Com. Rep. 537, 59 Fed. 400. The two last cases involved the construction of the Interstate Commerce Act, but they affirm the principle that a common carrier may agree with such other carrier as it may choose, to forward beyond its own line the goods which it had transported to its own terminus. See also Central Stock Yards Co. v. Louisville & N. R. Co. 192 U. S. 568-571, 48 L. ed. 565-569, 24 Sup. Ct. Rep. 339; Kentucky & I. Bridge Co. v. Louisville & N. R. Co. 2 L. R. A. 289, 2 Inters. Com. Rep. 351, 37 Fed. 567; Oregon Short Line & U. N. R. Co. v. Northern P. R. Co. 4 Inters. Com. Rep. 249, 51 Fed. 465; Ilwaco R. & Nav. Co. v. Oregon Short Line & U. N. R. Co. 5 Inters. Com. Rep. 627, 6 C. C. A. 495, 15 U. S. App. 173, 57 Fed. 673.

The cases cited did not involve rights of parties to a wharf situated in a harbor, but we think that the right of one carrier to enter into arrangements with another carrier to forward its goods, and to refuse to do so with others, or to permit such others to avail themselves of the facilities constructed by the original carrier for that purpose,

from the railroad. In this way there would be confusion in time and in the possession of the wharf by the different vessels, and its value for the purpose for which it was erected would be greatly reduced, if not wholly destroyed.

is not altered because the facility so con- | ing its cargo, and then loading with goods structed by it happens to be a wharf in the harbor of a city instead of some structure on land. The wharf may be a private one, and its owner may permit those only to have access to it that it may choose. A private wharf may exist on the shores of a navigable river or lake, or in a harbor of a city from which access is obtained directly to the sea. Dutton v. Strong, 1 Black, 23, 32, 17 L. ed. 29, 32.

It is to be remembered that the wharf was not, in strictness, the terminus of defendant for unloading its goods for Pensacola. The defendant had other depots and yards for that purpose. The main use of the wharf was only for the purpose of sending the goods brought by defendant, to other ports as a continuation of their carriage beyond the line of the defendant's road. How much space, if any, it might devote to other vessels, with the managers of which it might make special arrangements, would naturally be for the defendant to decide, as also the particular terms of such arrangements. The conveniences of the wharf are, of course, necessarily limited.

It is well said by counsel for defendant in their brief that "the very nature of a wharf, and its inadequacy to meet the demands of every incoming vessel, necessitates that its use should be exclusively for those with whom the carrier enters into arrangements. The carrier has a right to select a strong connection instead of a weak one,-one that will give assurance of permanent business, instead of one that can offer only occasional shipment. If the free use is incompatible with the certain regular use by the steamer, or lines of steamers, with which the carrier is aligned, it is too clear for further reasoning that such carrier has the right to accept the latter and thereby exclude the former."

The principle herein recognized has also been affirmed by this court in what are known as the Express Cases, 117 U. S. 1, 29 L. ed. 791, 6 Sup. Ct. Rep. 542, 628, where it was held (because the facilities were necessarily limited) that railroad companies had panies had the right to contract with particular express companies for the transportation of the traffic of the latter over the lines of their railroads, and that the railroad company was not bound to transport the traffic of independent express companies over its lines in the same manner in which it transported the traffic of the particular companies contracted with; in other words, that the railroad companies were not bound to furnish, in the absence of a statute, to all independent express companies, equal facilities for doing an express business upon their passenger trains.

These observations answer the contention of plaintiff that defendant, by erecting the wharf and using it in the way it does, has thereby devoted its property to a public use, and that it has thereby granted to the public an interest in such use, within the principle laid down in Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77. It has not devoted its wharf to the use of the public in so far as to thereby grant to every vessel the right to occupy its private property upon making compensation to defendant for the exercise of such right. The reasons we have already endeavored to give.

The judgments of the Circuit Court of Appeals and of the Circuit Court for the Northern District of Florida are reversed, and the case remanded to the latter court for further proceedings not inconsistent with this opinion. Reversed.

Mr. Justice Harlan dissents.

(198 U. S. 416)

Smith, et. al., Plffs. in Err.,

The reasons for permitting such use of the wharf are manifold. Without it the commerce of the country in the large cities would be cramped, if not very greatly damaged, by the uncertainty of finding quarters for the regular and swift unloading and loading of the vessels. But the capacity of a wharf is necessarily limited, and if the wharf were open to all comers in their turn A. H. LEONARD, George R. Wilson, R. N. there could be no certainty as to any particular vessels being able to reach the wharf at any definite time, and consequently there would be a like uncertainty as to when such vessel would be able to depart with its load. One unexpected so-called tramp vessel might, by arriving a few hours in advance, take possession of all that was left of the wharf for the purpose of loading, and thus prevent the regular steamer, arriving a little later, from coming to the dock, unload

v.

VICKSBURG, SHREVEPORT, & PACIFIC
RAILROAD COMPANY, J. H. Mc-
Cormick, Receiver, and C. C. Harvey.

Error to state court-Federal question.

1. The presence of a question respecting the construction and application of the congressional legislation as to swamp and overflowed lands gives no jurisdiction to the Supreme

Argued April 26, 27, 1905. Decided May 29, and overflowed land, granted to the state of

That all sales of land in Louisiana made as swamp and overflowed land, whether of Caddo, in that state, in favor of plain- made by the United States or by the state tiffs in an action of ejectment. for want of jurisdiction.

of Louisiana, and whether the land sold was of that character or not, were confirmed

See same case below, 112 La. 51, 36 So. by the act of Congress approved March 2,

ing the certificate and patent under which | as to the ownership of a portion of a tract Smith claimed to be null and void, and of land is conclusive between the same directing their cancelation, and that they parties, claiming under the same titles, as be delivered to the state of Louisiana. to the ownership of the whole tract, should That defendant appealed to the supreme not be applied in the circumstances detailed, court, which appeal was thereafterwards which, in its opinion, operated to confine dismissed; and that said judgment is res the effect of the judgment to the particular judicata, and a perpetual bar to defendants' parcel for which recovery was sought. rights of action. Those pleas were overruled as to all of the tract except 35.18 acres, but the court sustained plaintiff's plea of res judicata predicated on the judgment in State v. Smith, and thus continued:

The Caddo district court, Watkins, J. found that, on the trial of the cause of Smith v. Turner, in the circuit court, in which case recovery of only 35.18 acres out of the tract of 178.80 acres, known as "Silver Lake," was sought, though title to the entire tract was asserted on one side, and denied on the other, the railroad company had offered to prove the value of the whole tract at $10,000, but that Smith had objected on the ground that only the possession of 35.18 acres was in issue, and the circuit court had, therefore, declined to admit the evidence, and that, the case having gone to judgment, a writ of error from the Supreme Court of the United States was dismissed on motion of defendants in error, because the possession of the 35.18 acres was not worth over $2,000. 135 U. S. 195, 34 L. ed. 95, 10 Sup. Ct. Rep. 728.

"This conclusion disposes of the contention that W. W. Smith bought the land in question as swamp or overflowed land, since the state, in the suit just referred to, distinctly alleged that it was not so sold, and its position was sustained by the judgment therein rendered. But if it had been sold as land acquired under the acts of Congress of 1849 and 1850 (9 Stat. at L. 352, chap. 87, and 9 Stat. at L. 519, chap. 84), the result would be the same, since it belonged to that class of land which, under the act of the general assembly, No. 247, p. 306, of 1855, could only have been sold after having been surveyed; and one of the causes of action set up by the state in its suit The district court held that as the same against Smith, and maintained by the judgparties, who now contended that the judgment therein rendered, was that it had not ment in Smith v. Turner constituted the been surveyed. thing adjudged as to the entire tract, had successfully insisted in that case that nothing was therein in issue except the right of possession of 35.18 acres, the court was not required to adjudge that the legal effect of that judgment extended to cover the entire tract. As to the judgment in favor of the state, in State v. Smith, the court recapitulated the facts, finding that the return of the money paid by Smith to obtain the patent was lawfully tendered December 3, 1857; the grounds on which the judgment proceeded; that this judgment was rendered November 24, 1860, in favor of the state, canceling the Smith entry; that Smith prosecuted an appeal, which, after delay by reason of the Civil War, was dismissed by the state supreme court, August 11, 1869; and that because of defective certificates, the circuit court was led to believe, in Smith v. Turner, that the case of State v. Smith had not been disposed of. The district court further found, for reasons given, that the title of the railroad company in and to the land was perfect. The court gave judgment in favor of the railroad company, and the case was carried to the supreme court of Louisiana. 112 La. 51, 36 So. 223.

Dealing with defendants' pleas of res judicata and estoppel, the supreme court held that the general rule that a judgment

"Finally, it is argued that, under the acts of Congress of 1849 and 1850, title in præsenti to all swamp and overflowed lands within its limits vested in the state of Louisiana without regard to selection or approval; that the land in question was of that character; and that the state acquired it under those acts, and hence that the United States could not have granted, and the state (or railroad company) could not have acquired, it under the act of June 3, 1856 (11 Stat. at L. 18, chap. 42).

"The acts of 1849 and 1850 were clearly not intended to operate against the will of the state. On the contrary, they distinctly left it to the state to select, subject to the approval of the Secretary of the Interior, the lands which it might consider within the terms of the grant.

"Whether the state might have selected the tract in question, and whether such selection might or would have been approved, need, not be here considered. In point of fact, not only was the selection not made and the approval not given, but the grantor and the grantee concurred in the view that the tract fell within the terms of the act of 1856, and was granted to and acquired by the state of Louisiana, as the trustee of the V., S. & P. R. R. Co., for the purpose of aiding in the construction of the railroad which that company was to build.”