Imágenes de páginas

“No. 54 was marked by a stone, and was Purther identified by one witness tree.

“No. 58 was recovered by traces of the stakes in addition to the remains of the witness tree, and the point established by J. C. Sullivan in 1816 was also found a little further east, and also the stump of an elm tree, noted as a line tree' in both Sullivan and Hendershott notes, being 4.10 chains W. of Hendershott's 58th mile point. The remaining points were located in the following manner:

"No. 41 was placed midway on line between 40 and 42.

"No. 43 was so placed as to preserve the relations with 42 and 44 required by the field notes of 1850, and after being so located was found to agree with the stump of the witness tree on the Iowa side of the line.

“No 45 was placed in the middle of the street bounding Pleasanton on the south, which middle line is shown as the boundary on the official plat of the town on file at the county seat, and at the proper distance along the line averaging to the 49th mile.

"No. 46 was similarly located on the line passing from 45 through a stone pointed out by tradition as marking the line.

“No. 47 was placed at the proper distance on a line drawn straight from 49 westward through a witnessed section corner between 47 and 48.

“No. 48 was placed on the same line midway between 47 and 49.

"No. 52 was located at a point west of the pond or lake in the Weldon bottom agreeing with the topographic description given by the former commissioners, and on a line agreeing as closely as possible with all of the apparently authentic traces of ine surveyed in 1850.

"No. 53 was placed a mile west of 54, on the straight line between 52 and 54. * "No. 55 was placed a mile east of 54, on the extension of the line drawn from 54 through a witnessed stone at the corner common to Wayne and Decatur counties, Iowa.

"Nos. 56 and 57 were placed at mile distances on the straight line drawn from 55, through an iron pin at the southwest corner of the streets surrounding the public square at Lineville, which pin was universally accepted as a point marking the boundary.

Unsuccessful search was also made for the remains of a wooden post which formerly stood a little further east.

"No. 59 was placed midway between 58 and 60, in the manner required by the field notes of 1850.

"While this work was in progress many of the inhabitants along the line asked that additional points, intermediate between the mile points, might be furnished them, and, with your approval, this was done.

“In accordance with the decree of the supreme court dated January 3rd, 1851, such points were always placed on the straight

line between the adjacent mlle posts. The Enal observations were made on the afternoon of June 13th, and the instruments were then packed, and on the 15th were shipped to Washington.

"I left Lineville on June 15th, also, to re sume my regular duties in the coast and geodetic survey.

"In closing this report, permit me to ex. press my appreciation of the uniform courtesy and consideration shown my assistant and myself by all the members of the commission, and my hope that our earnest labors in this interesting work have proved satisfactory in methods and results, and that they may be instrumental in permanently settling this controversy.

"The appended pages give in summarized form the results of the observations and measurements, as well as the mathematical formulæ employed. “Respectfully submitted.

"W. C. Hodgkins, “Assistant, Coast & Geodetic Survey, Chief of Party."

“Appendix A. "The following table gives the bearings and distances between the successive mile posts of the Missouri-Iowa boundary from the fortieth to the sixtieth mile east of the initial point, as the said mile posts were relocated and marked by James Harding, Pe ter A. Dey, and Dwight C. Morgan, commissioners, in 1896.

“The distances are given to the nearest tenth of a metre, and to the nearest halt foot, and the bearings or azimuths to the nearest quarter minute.

"The azimuth is reckoned from the south point as zero in the direction of west, north, and east successively,-1. e. 90° means due west, 270° due east, etc.

"The convergence of the meridians is 4449 seconds for each mile. The bearings going west, or back azimuths, are therefore in each case three-fourths of a minute greater than the eastern or direct azimuths.

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"Offsets from Base Line.

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Yon't No. 40, 3.3 = 11 ft. N.

41, 8.8 = 29
42, 14.3 = 47
43, 9.8 = 82

12.1 = 40 " S,
45. 31.0 = 102
46, 48.7 = 1:0
47. 7.3 = 155
48, 38.3 - 12.1972
49 29.1 9612

97 51, 23.7 = 73 52, 7.6 25 N 53, 36.2 119 öl, 64.8 212% 55. 75.4 217

69.5 = 223 57, 63.7 = 219 58, 23.1 = 77 59, 11.3 = 37

· S. 60, 46.6 = 153

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road time signals, gave the following result:

“Approximate longitude (W. of Greenwich) =93° 32'.

For azimuth the observations of Polaris were reduced by the formula

sin t
tan A
COS • tan ò

sin o cost in which the letters have the following sigas. fications: A= the azimuth of the star at the in

stant of observation.
t= the hour angle of the star at the

instant of observation.
à the declination of the star at the

instant of observation.

the latitude of the place. “Resulting azimuth of base line = 89° 21' , 49" east of north.

“These results transferred to the monuments at each end of this 20-mile section give the following:

Lat. Long. Azimuth * 40-mile mon't............. 10° 84.4 93° 51' 269° 14' 499 60-mile nion't.

34.6 93 28 89 29 40 the azimuth at each point being the bearing of the straight line joining the two points."

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“Note on the Reduction and Results of the Astronomical Observations at Line

ville, Iowa. “For latitude the observed altitudes of Po laris were reduced by the method and table given on page 534 of the American EphemerIs, with the result: “Approximate latitude =40° 34'.6.

"Comparisons of local mean time, obtained by sextant observations of the sun, with rail


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(One-third natural size.) Photograph of a section of the oak tree at the fifty-second mile point, supposed to be wit ness tree in the Iowa-Missouri boundary. The dark line indicates the size of the stem fifty years age.



** Appendix B.

the junction with it of another stream, but that

the portion above the junction, on which it was "Account of Expenses Incident to the Relocation and Remarking the Boundary Line between the States of

proposed to build a dam, is not navigable, has Missouri and lowa from the 40th to the 60th Mile no channel, and is "nothing but a high-water Powt, under Decree of the Supreme Court of the Unite outlet, going dry every summer at many plaed States. February 5, 1896.

ces, choked with rafts, and filled with sand, Pay of engineers :

reefs, etc.,” is, in effect, a finding that the navW. C. Hodgkins (U. S. geodetic

igability of the stream below the junction is Birvey corps . 74 days @ $5.0)...$370 00 A. L. Baldwin (U. S. geodetic sur

not influenced by the flow of water from that vey corps). 41 days (1) $5.00......... 205 00

portion above, and hence that such navigability Transportation froin Washịugton,

would not be injured by the erection of the D. C......

77 75

Transportation to Salina, Kansas 41 14
Freight on instruments returned

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

8 32
$702 21

of Louisiana
Pay of one assistant (14 days @ $2.50) and la-

190 50 C. J. Boatner, for plaintiff in error. A. H. Subsistence of parties in field.

421 75 Leonard, for defendant in error.
Hire of teaing and drivers and feed for teams... 342 25
Paid for eighteen granite monumenta in place.. 922 00
Miscellaneous expenses paid (telegrame, town-

Mr. Justice WHITE delivered the opinion ship plats, signal materials. clerical work, and

of the court. typewriting, repairs of instruments, storage, &c., &c.).......

171 60 The plaintiffs in error, by original and supAdvertising, Missouri and Iowa....................... 133 30

plemental petitions, sued in order to perpetuCommissioners: James Harding. Comm. for Mis

ally enjoin the building by the board of state souri, 78 days @ $10.00.

780 00

engineers of the state of Louisiana of a James Harding, traveling expenBes...........

161 85

dam across an alleged stream, designated as 941 85

"Bayou Pierre." It was averred that the Peter A. Dey, Comm. for Iowa, 60 days @ $10.00.

600 00

construction would permanently impair the Peter A. Dey, traveling expenses... 189 47

* value of certain real property to the plain

789 47 Dwight C. Morgan, Comm., 46 days

tiff belonging, situated in the vicinage of the @ $10.00

460 00

proposed work; that it was a purely private Dwight C. Morgan, traveling expenses

198 63

undertaking, which the board of state en658 63

gineers was not authorized to do at public Total.......

$5,273 56" expense; and that the dike, if carried out, And it is ordered, adjudged, and decreed

would obstruct the navigation of Bayou

Pierre, and would therefore violate the laws that the boundary line between said states of Missouri and Iowa, in controversy herein, be,

of the United States. The state of Louis

iana, by intervention, and the defendants, by and it is hereby, established and declared to be as delineated and set forth in said report.

answers, traversed the averments of the pe.

titions. There was judgment in the trial It is further ordered, adjudged, and decreed that the compensation and expenses of the

court rejecting the plaintiffs' demand, which commissioners and the expenditures attendant

was, on appeal, affirmed by the supreme

court of the state of Louisiana. 14 South. upon the discharge of their duties be, and

244. To the decree of affirmance this writ they are hereby, allowed at the sum of $5,273.56, in accordance with their report as con

of error is prosecuted.

The record before us contains all the tesfirmed as aforesaid, and that said charges and

timony introduced and evidence offered in expenses, with the costs of this suit, to be taxed, be equally divided between the par

the trial court, all of which was open for con

sideration and passed upon by the supreme ties hereto.

court of the state of Louisiana.

On error, And it is further ordered, adjudged, and decreed that the clerk of this court forthwith

however, to a state court, this court cannot transmit to the chief magistrates of the states

re-examine the evidence, and, when the facts of Missouri and Iowa copies of this decree,

are found below, is concluded by such find.

ing. Dower duly authenticated under the seal of this court.

V. Richards, 151 U. S. 658, 14 Sup. Ct. 452; Bartlett v. Lockwood, 160

U. S. 356, 16 Sup. Ct. 334; Stanley V. (165 U. S. 188)

Schwalby, 162 U. S. 255, 16 Sup. Ct. 754.

True it is that in Dower v. Richards the EGAN et al. v. HART et al.

court (referring to the dictum in Republican (February 1, 1897.)

River Bridge Co. v. Kansas Pac. Ry., 92 No. 63.

U. S. 315, 317) treated as open for further ERROR TO STATE COURT-Recorn-WAT Coysti

consideration the question whether, in chanFINDINGS OF Fact – CONSTRUCTIONSTREAMS-OBSTRUCTION OF NAVIGATION.

cery cases, the power existed in this court 1. On error to a state court, the United to review the decision of state courts on both States supreme court cannot consider the evi the law and the fact. We, however, condence, and findings of fact by the state court clude that not only the very nature of a writ are conclusive. 2. The opinion of the supreme court of Louis

of error, but also the rulings of this court iana forms a part of the record in cases brought from the beginning, make it clear that on erfrom that court to the federal supreme court ror to a state court in a chancery case, as on error, and may be examined, with the rest

in a case at law, when the facts are found hy of the record, to ascertain what questions were presented, and to explain the findings of fact.

the court below, this court is concluded by 3. A finding that a stream is navigable up to

such findings. The adjudications are col



lected very fully in Dower y. Richards, and many obstacles and difficulties. On this in the subsequent cases above referred to. point the district judge says: 'From Grande

It is likewise settled that on error to the Ecore, where it (Bayou Pierre) enters Red supreme court of Louisiana the opinion of river, to a point some miles below its juncthat court is to be treated as part of the rec tion with Tone's bayou, a stream flowing out ord, and that it may be examined in order of the river, Bayou Pierre has been freto ascertain the questions presented, and this quently navigated by steamboats; but from court may, for the purpose, not of deciding the point of junction to the dam in question the facts, but by way of throwing light on it has never been navigated, and is unnavi. the findings, look into the entire record. gable. Between these two points it is noth. Crossley v. City of New Orleans,. 108 U. S. ing but a high-water outlet, going dry every 105, 2 Sup. Ct. 300; Gross v. Mortgage Co., summer at many places, choked with rafts, 108 U. S. 477, 2 Sup. Ct 940.

and filled with sand, reefs, etc. It has no Turning to the opinion of the supreme channel. In various localities it spreads out court of Louisiana, it is obvious that it held into shallow lakes, and over a wide expanse not only that under the law of Louisiana the of country, and is susceptible of being made board of state engineers was competent to navigable, just as a ditch could be if it were undertake the work in question, and any dug deep and wide enough, and kept supdamage resulting to the plaintiff thereby was plied with a sufficiency of water.' We fully absque injuria, but that it also rested its de

in this finding. Besides, Bayou cree upon three propositions, two of fact and Pierre is wholly within the state, and the one of law, viz.: First, that the construction authority of the legislature over it is comof the dam was a public work jointly under- plete. Hamilton v. Railroad Co., 34 La. Ann. taken by the government of the United 975; Boykin v. Shaffer, 13 La, Ann. 129."

the state of Louisiana; second, that the stream court, approved and affirmed by the supreme across which the dam was to be erected was court of Louisiana (that is, the nannaviganot navigable, and was hence subject to bility of the stream, and the concurrent parstate control; third, that even if navigable, ticipation of the United States and the state as the stream was wholly within the state in the building of the dam), are purely quesof Louisiana, it was bence exclusively under ions of fact, and therefore, as we have said, the dominion of the state law. The findings are conclusive. of the court on these subjects were thus ex It is clear that if these questions of fact pressed:

are adequate to determine the controversy "Speaking of the nature of the work, the between the parties, and broad enough to district judge says: 'It is a public work, maintain the judgment independent of any planned and located by state authority, and federal question, that we are without juris. is a part of a system of levees ordered by | diction, although the state court may have the state for the prevention of overflows. It also decided such a question. Eustis v. is the initial point of a line of levees the Bolles, 150 U. S. 361, 14 Sup. Ct. 131; Conpropriety, location and construction of which necticut v. Woodruff, 153 U. S. 689, 14 Sup. have been determined by the state, acting Ct. 976; Hammond v. Insurance Co., 150 U. through the state board of engineers, its ac S. 633, 14 Sup. Ot. 236. credited and duly-authorized agents. It be The claim is that the court below errone gins on the highlands on the west bank of ously decided a*federal question, which it the bayou, and extends thence across the is asserted is absolutely necessary to mainbayou to Hart's Island, and from there to tain its decree independently of the concluDixie plantation, on Red river.'

sions by it expressed on the foregoing propo“The United States government has con sitions of fact. This argument is deduced tributed four thousand dollars-a sum equal from that portion of the decision below to the price of Hart's contract with the state which held that, even if the stream was nav. -towards the cost of construction of the line igable, it was nevertheless competent for the of levees of which the dam in question is a state authority to obstruct or entirely close part. Manifestly, the claim that such a work it, because, being wholly within the state, undertaken by the state, with the aid of the it was under its exclusive jurisdiction and general government, is the work of private authority. Such power, it is argued, if ever persons, for private and selfish motives, is possessed by the state, depended solely on absolutely without foundation,

the absence of congressional legislation, as

serting the reserved authority of the general "As to plaintiffs' contention that Bayou government over all navigable streams, inPierre is a navigable stream, we have care cluding even those wholly within a state, and fully considered the voluminous testimony therefore ceased to exist from the enactment on that part of the case, and we are clear by congress of the law of September 19, 1890 that the upper part of Bayou Pierre, in (26 Stat. 454). By the statute relied on, which the dam in question is situated, is not congress forbade the construction of "any navigable, and that the navigation of even bridge • or other works over or in the lower part of Bayou Pierre, a considera any * navigable waters of the Unitble distance below the dam, is attended with ed States under any act of the legislative as.

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sembly of any state, until the location and plan of such bridge or other works have been submitted to and approved by the secretary of war, or to excavate or fill or in any manner alter or modify the course, location, condition or capacity of the channel of said navigable waters of the United States, unless approved by the secretary of war." But by its plain terms, this statute relates solely to pavigable waters, and one of the propositions of fact found by the supreme court of the state is that the stream in question was not navigable. The necessary effect, thereCore, of accepting this finding, is to take the case out of the reach of the law relied on, and this causes the question of fact (that is, nonnavigability) to be wholly and adequately sufficient to maintain the judgment without reference to the statute in question.

It is sought to avoid this inevitable conclusion by contending that the fact found below is not that the stream was nonnavigable, but only that it was so at the particular place where the dike was proposed to be built. Nonnavigability at the particular place, it is argued, does not exclude the implication that the impeding of the water at that point would*obstruct the flow of water

and injure the navigable stream below the dam, thereby bringing the case directly under the terms of the statute. But this construction of the finding below is entirely too narrow. An examination of the record, and a consideration of the entire context of the opinion of the supreme court of the state, makes it clear that the whole controversy below was whether the dam, if erected at the particular place in question, would affect or injure the navigability of the stream below, and that the finding of fact that the stream was not navigable at the point where the dam was to be erected was substantially a conclusion that the erection of the dam bore no relation to, and would have no effect in obstructing, the navigation of the stream known as “Bayou Pierre" below the dam, and which stream the court recognized as being navigable in a qualified sense. The record discloses that Bayou Pierre leaves the Red river a short distance below the city of Shreveport, and, after a long and meandering course, re-enters the Red river just above the town of Grande Ecore. The proposed dam crosses Bayou Pierre a short distance from the point where it leaves Red river. Below the point of the dam a stream known as "Tone's Bayou," which also flows out of the Red river, empties into, and forms a junction with, Bayou Pierre. The portion of the bayou which the court found to be occasionally navigable was that below the junction of Tone's bayou. As to the portion above the junction of Tone's and Bayou Pierre (that is, in the direction of the dam), the finding of fact is as follows: "Between these two points it is nothing but a bigh-water outlet, going dry every summer at many places, choked with rafts, and filled with

sand, reefs, etc. It has no channel. In vart. ous localities It spreads out into shallow lakes, and over a wide expanse of country, and is susceptible of being made navigable, just as a ditch could be if it were dug deep and wide enough, and kept supplied with a sufficiency of water.” The obvious effect of this finding is that the qualified navigability existing in Bayou Pierre below the inflow into that stream of the water from Tone's bayou is wholly uninfluenced by water leav. ing Red river by way of the upper mouth of Bayou Pierre. Indeed, the finding amounts to saying that the stream formed by the junction of Bayou Pierre and Tone's bayou is a new, and in reality a distinct and different, stream (although called by the same name) from the stream above the junction, and in which it is proposed to erect the dam. From these considerations it obviously results that the expression of opinion arguendo by the state court as to the power of the state of Louisiana to control a navigable stream wholly within its borders, even if erroneous, was unnecessary to the decision of the cause, and that the decree by that court rendered is adequately sustained by the conclusion of fact as to the nonnavigability of the stream. This being the case, it is un. necessary to consider whether the finding that the work of building the dam was concurrently carried on by the state and the United States is not also sufficient to sustain the decree below, since it practically deter. mines that the dam was being constructed in conformity to the act of congress.

Dismissed for want of jurisdiction.


(February 1, 1897.)


1. Statutes expressly defining the jurisdiction of certain courts will not be controlled by mere implications arising from subsequent statutes.

2. Act Cong. July 20, 1892 (27 Stat. 252), creating the Southern division of the judicial district of Montana, provided that the act should “not affect the jurisdiction" of the court as to pending actions, which should proceed as though the act had not been passed, but that the court might, in its discretion, transfer to the new division such of them, “as might properly be begun therein." Held not suflicient, as against Rer. St. $8 503, 629, making the jurisdiction of district courts co-extensive with the district, to show a distribution of territorial jurisdiction between the two divisions.

3. A transfer of the place of trial from one division of a judicial district to another, by a court having jurisdiction over the whole district, when not expressly prohibited, is not ground of error, especially when not objected to at the time.

4. An indictment under Rev. St. & 5467, charged a postal clerk with having destroyed a certain letter, and a draft, therein contained, "for fifty francs, D. 0. Mills & Co., No. d.08250, on Paris, France," a more particular description of which was to the grand jurors unknown. Held a sufficient description of the draft

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