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"No. 54 was marked by a stone, and was further 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 the line 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

The

line between the adjacent mile posts. £nal 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 resume my regular duties in the coast and geodetic survey.

"In closing this report, permit me to express 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, Peter A. Dey, and Dwight C. Morgan, commissioners, in 1896.

"The distances are given to the nearest tenth of a metre, and to the nearest half 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,-i. e. 90° means due west, 270° due east, etc.

"The convergence of the meridians is 44 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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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 ago.

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190 50

421 75

342 25

Pay of one assistant (14 days @ $2.50) and laborers.........

Subsistence of parties in field.

Hire of teams and drivers and feed for teams... Paid for eighteen granite monuments in place.. Miscellaneous expenses paid (telegrams, township plats, signal materials, clerical work, and typewriting, repairs of instruments, storage, &c., &c.)..

Advertising, Missouri and Iowa.......................................
Commissioners:

James Harding. Comm. for Mis-
sourl, 78 days @ $10.00..
James Harding, traveling expen-

922 00

171 60 133 30

941 85

780 00

161 85

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And it is ordered, adjudged, and decreed that the boundary line between said states of Missouri and Iowa, in controversy herein, be, and it is hereby, established and declared to be as delineated and set forth in said report.

It is further ordered, adjudged, and decreed that the compensation and expenses of the commissioners and the expenditures attendant upon the discharge of their duties be, and they are hereby, allowed at the sum of $5,273.56, in accordance with their report as confirmed as aforesaid, and that said charges and expenses, with the costs of this suit, to be taxed, be equally divided between the parties hereto.

And it is further ordered, adjudged, and decreed that the clerk of this court forthwith transmit to the chief magistrates of the states of Missouri and Iowa copies of this decree, duly authenticated under the seal of this court.

(165 U. S. 188)

EGAN et al. v. HART et al.
(February 1, 1897.)
No. 63.

ERROR TO STATE COURT-RECORD-WHAT CONSTI-
TUTES- - FINDINGS OF FACT-
- CONSTRUCTION-
STREAMS-OBSTRUCTION OF NAVIGATION,
1. On error to a state court, the United
States supreme court cannot consider the evi-
dence, and findings of fact by the state court
are conclusive.

2. The opinion of the supreme court of Louisiana forms a part of the record in cases brought from that court to the federal supreme court on error, and may be examined, with the rest of the record, to ascertain what questions were presented, and to explain the findings of fact.

3. A finding that a stream is navigable up to

the junction with it of another stream, but that the portion above the junction, on which it was proposed to build a dam, is not navigable, has no channel, and is "nothing but a high-water outlet, going dry every summer at many places, choked with rafts, and filled with sand, reefs, etc.," is, in effect, a finding that the navigability of the stream below the junction is not influenced by the flow of water from that portion above, and hence that such navigability would not be injured by the erection of the dam.

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

C. J. Boatner, for plaintiff in error. A. H. Leonard, for defendant in error.

Mr. Justice WHITE delivered the opinion of the court.

The plaintiffs in error, by original and supplemental petitions, sued in order to perpetually enjoin the building by the board of state engineers of the state of Louisiana of a dam across an alleged stream, designated as "Bayou Pierre." It was averred that the construction would permanently impair the *value of certain real property to the plaintiff belonging, situated in the vicinage of the proposed work; that it was a purely private undertaking, which the board of state engineers was not authorized to do at public expense; and that the dike, if carried out, would obstruct the navigation of Bayou Pierre, and would therefore violate the laws of the United States. The state of Louisiana, by intervention, and the defendants, by answers, traversed the averments of the petitions. There was judgment in the trial court rejecting the plaintiffs' demand, which was, on appeal, affirmed by the supreme court of the state of Louisiana. 14 South. 244. To the decree of affirmance this writ of error is prosecuted.

The record before us contains all the tes timony introduced and evidence offered in the trial court, all of which was open for consideration and passed upon by the supreme court of the state of Louisiana. On error, however, to a state court, this court cannot re-examine the evidence, and, when the facts are found below, is concluded by such finding. Dower v. Richards, 151 U. S. 658, 14 Sup. Ct. 452; Bartlett v. Lockwood, 160 U. S. 386, 16 Sup. Ct. 334; Stanley v. Schwalby, 162 U. S. 255, 16 Sup. Ct. 754. True it is that in Dower v. Richards the court (referring to the dictum in Republican River Bridge Co. v. Kansas Pac. Ry., 92 U. S. 315, 317) treated as open for further consideration the question whether, in chancery cases, the power existed in this court to review the decision of state courts on both the law and the fact. We, however, conclude that not only the very nature of a writ of error, but also the rulings of this court from the beginning, make it clear that on error to a state court in a chancery case, as in a case at law, when the facts are found by the court below, this court is concluded by such findings. The adjudications are col

lected very fully in Dower v. Richards, and in the subsequent cases above referred to. It is likewise settled that on error to the supreme court of Louisiana the opinion of that court is to be treated as part of the record, and that it may be examined in order to ascertain the questions presented, and this court may, for the purpose, not of deciding the facts, but by way of throwing light on the findings, look into the entire record. Crossley v. City of New Orleans, 108 U. S. 105, 2 Sup. Ct. 300; Gross v. Mortgage Co., 108 U. S. 477, 2 Sup. Ct. 940.

Turning to the opinion of the supreme court of Louisiana, it is obvious that it held not only that under the law of Louisiana the board of state engineers was competent to undertake the work in question, and any damage resulting to the plaintiff thereby was absque injuria, but that it also rested its decree upon three propositions, two of fact and one of law, viz.: First, that the construction of the dam was a public work jointly undertaken by the government of the United States and the board of state engineers of the state of Louisiana; second, that the stream across which the dam was to be erected was not navigable, and was hence subject to state control; third, that even if navigable, as the stream was wholly within the state of Louisiana, it was hence exclusively under the dominion of the state law. The findings of the court on these subjects were thus expressed:

It

"Speaking of the nature of the work, the district judge says: 'It is a public work, planned and located by state authority, and is a part of a system of levees ordered by the state for the prevention of overflows. is the initial point of a line of levees the propriety, location and construction of which have been determined by the state, acting through the state board of engineers, its accredited and duly-authorized agents. It begins on the highlands on the west bank of the bayou, and extends thence across the bayou to Hart's Island, and from there to Dixie plantation, on Red river.'

"The United States government has contributed four thousand dollars-a sum equal to the price of Hart's contract with the state -towards the cost of construction of the line of levees of which the dam in question is a part. Manifestly, the claim that such a work undertaken by the state, with the aid of the general government, is the work of private persons, for private and selfish motives, is absolutely without foundation.

"As to plaintiffs' contention that Bayou Pierre is a navigable stream, we have carefully considered the voluminous testimony on that part of the case, and we are clear that the upper part of Bayou Pierre, in which the dam in question is situated, is not navigable, and that the navigation of even the lower part of Bayou Pierre, a considerable distance below the dam, is attended with

many obstacles and difficulties. On this point the district judge says: 'From Grande Ecore, where it [Bayou Pierre] enters Red river, to a point some miles below its junction with Tone's bayou, a stream flowing out of the river, Bayou Pierre has been frequently navigated by steamboats; but from the point of junction to the dam in question it has never been navigated, and is unnavigable. Between these two points it is nothing but a high-water outlet, going dry every summer at many places, choked with rafts, and filled with sand, reefs, etc. It has no channel. In various 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.' We fully concur in this finding. Besides, Bayou Pierre is wholly within the state, and the authority of the legislature over it is complete. Hamilton v. Railroad Co., 34 La. Ann. 975; Boykin v. Shaffer, 13 La. Ann. 129."

Now, the foregoing findings, by the trial court, approved and affirmed by the supreme court of Louisiana (that is, the nonnavigability of the stream, and the concurrent participation of the United States and the state in the building of the dam), are purely quesions of fact, and therefore, as we have said, are conclusive.

It is clear that if these questions of fact are adequate to determine the controversy between the parties, and broad enough to maintain the judgment independent of any federal question, that we are without jurisdiction, although the state court may have also decided such a question. Eustis v. Bolles, 150 U. S. 361, 14 Sup. Ct. 131; Connecticut v. Woodruff, 153 U. S. 689, 14 Sup. Ct. 976; Hammond v. Insurance Co., 150 U. S. 633, 14 Sup. Ct. 236.

The claim is that the court below errone: ously decided a*federal question, which it is asserted is absolutely necessary to maintain its decree independently of the conclusions by it expressed on the foregoing propositions of fact. This argument is deduced from that portion of the decision below which held that, even if the stream was navigable, it was nevertheless competent for the state authority to obstruct or entirely close it, because, being wholly within the state, it was under its exclusive jurisdiction and authority. Such power, it is argued, if ever possessed by the state, depended solely on the absence of congressional legislation, asserting the reserved authority of the general government over all navigable streams, including even those wholly within a state, and therefore ceased to exist from the enactment by congress of the law of September 19, 1890 (26 Stat. 454). By the statute relied on, congress forbade the construction of “any bridge * or other works over or in any * navigable waters of the United 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 navigable 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, therefore, 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 high-water outlet, going dry every summer at many places, choked with rafts, and filled with

sand, reefs, etc. It has no channel. In various 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 leaving 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 unnecessary 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 determines that the dam was being constructed in conformity to the act of congress. Dismissed for want of jurisdiction.

(165 U. S. 257)

ROSECRANS v. UNITED STATES.
(February 1, 1897.)
No. 522.

COURTS JURISDICTION DIVISION OF JUDICIAL
DISTRICT-TRANSFER OF CASE FROM ONE DIVI-
ION TO ANOTHER-INDICTMENT-SUFFICIENCY.
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 sufficient, as against Rev. St. §§ 563, 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. O. 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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