ance by the city.
clusion of law. The answer sets up the
facts in full, and it is apparent that no
point was made on the pleadings below. On
the contrary, it is said, and is not denied,
that after a decision to that effect on de-
murrer (25 C. C. A. 97, 49 U. S. App. 126, 79
Fed. 577), it was admitted by the plaintiff
that the legal title vested in the city by vir-
tue of the patent of the United States.

But this is a mere con- | be corrected by equity if necessary. After
the price had been received by the city, and
the land had been occupied by purchasers
for nearly twenty years, the city would not
now be allowed to profit by a merely techni-
cal mistake.

If the legal title was in the city, it was an absolute title. In view of the extreme unwillingness of courts to admit the existence of a common-law condition, even when the word "condition" is used, it needs no argument to show that there was no condition or limitation here. Stuart v. Easton, 170 U. S. 383, 42 L. ed. 1078, 18 Sup. Ct. Rep. 650. Little more needs to be said to show that the act of Congress did not make the land inalienable at common law. We need not consider whether the act could have that effect upon land within a state, when the convey ance was absolute, and was made to a citizen or instrumentality of the state; we express no opinion upon the point. It is enough that it did not purport so to restrict the ordinary incidents of title. We should require the clearest expression of such an

unusual restriction before we should admit

that it was imposed, especially in an ordinary sale for cash. Here, the act probably meant no more than to explain the motive for a sale at a minimum price. Mahoning County v. Young, 8 C. C. A. 27, 16 U. S. App. 253, 59 Fed. 96. The ratified patent said nothing of any restriction, or even any trust beyond the one executed in the city. Of course, however, no question of trust is before us. If the city had found it more convenient to convey the land to a cemetery corporation, there is nothing in the statutes or patent which would have prevented it. The conveyance to the bishop was essentially similar to the case supposed, except in technical form, and probably was made on grounds of justice that very possibly were considered by Congress. The Catholics had spent money on the land, and had used it for a burial ground long before Congress passed the act.

If the city got a fee simple absolute, as in our opinion it did, we are not called upon to spend time on the question of its power under the laws of the state, or of its action in the premises. These questions were not much argued here. The city had a general power of alienation by charter, and we are not prepared to say that the power did not extend to burying grounds. The vote to adopt the report was a sufficient vote to sell, and the question is not open whether there was any informality in the execution of the sale by the mayor rather than by a special commissioner. The supposed error would

The objection that the deed did not follow the authority is unfounded. Giving Machebauf a wrong title had no effect on the grant; and the habendum properly was to him and his heirs, notwithstanding the petition, and the intent that the title should follow the oflice and not the blood of the grantee. Apart from statute, the law does not recognize the bishop as a corporation sole, and, therefore, the land could not be limited to him and his successors. At all events, it was sufficient to give the bishop a fee by the proper words, and to leave the official succession to the title to be effected by other means than the limitation in the deed. The petition of Machebœuf no doubt contemplated that he would take the land for the benefit of his church, and no doubt he did so in fact. But there was nothing which required this intention to be expressed in the deed. The plaintiff is not concerned with the extent of Machebœuf's power to convey to secular uses. Judgment of the Circuit Court of Appeals affirmed.

(191 U. S. 17) CLARA PERRY, Piff. in Err.,

v.

CORNELIUS L. HAINES.

THE ROBERT W. PARSONS. Admiralty jurisdiction-canal boats on Erie canal-repairs made in dry dock-enforoing lien in state courts.

1.

2.

3.

4.

The Erie canal, which, though lying wholly within the state of New York, forms a part of a continuous highway for interstate and foreign commerce by connecting Lake Erie with the Hudson river, is a navigable water of the United States as contradistinguished from a navigable water of the state.

Canal boats engaged in navigating the Erle canal and Hudson river, which are drawn by animal power while in the canal, and are tak en in tow by steamers for the trip on the river, are ships or vessels, within the contemplation of the maritime law.

Proceedings in rem to enforce a lien for repairs furnished to a vessel which was at the time engaged in navigating the Erle canal are no less within the exclusive admiralty jurisdiction of the Federal courts because such repairs were made in dry dock.

The exclusive admiralty jurisdiction of the Federal courts extends to the enforcement by proceedings in rem of a lien for repairs fur nished to a vessel engaged in navigating the Erie canal, although such vessel was employed wholly in commerce between ports in the same state.

12. See Admiralty, vol. 1, Cent. Dig. § 93.

See same case below, in Appellate Divi-eral Smith, 4 Wheat. 438, 4 L. ed. 609; The sion of Supreme Court, 57 App. Div. 636, 68 N. Y. Supp. 1139, in Court of Appeals, 168 N. Y. 586, 60 N. E. 1112.

haustive opinion by Mr. Justice Gray, that I sequently extended to cases arising upon the the enforcement in rem of a lien upon a ves- rivers above the tidal effect. Fretz v. Bull, sel for repairs and supplies furnished in her 12 How. 466, 13 L. ed. 1068; The Magnolia, home port was exclusively within the admir-20 How, 296, 15 L. ed. 909. In The Danicl alty jurisdiction of the courts of the United | Ball, 10 Wall. 557, 19 L. ed. 999, it was held States. that Grand river, a navigable water wholly

It is equally well established that, for within the state of Michigan, being a stream causes of action not cognizable in admiralty, | capable of bearing, for a distance of 40 either in rem or in personam, the states miles, a steamer of 123 tons burden, and may not only grant liens, but may provide forming, by its junction with Lake Michiremedies for their enforcement. Contracts gan, a continuous highway for commerce, for the building of a ship are the most both with other states and with foreign prominent examples of such as are not mari- countries, was a navigable water of the time in their character, and hence within United States; and the rule was broadly anthis rule. People's Ferry Co. v. Beers, 20 nounced that "those rivers must be regarded How. 393, 15 L. ed. 961; Roach v. Chapman, as public navigable rivers in law, which are 22 How. 129, 16 L. ed. 294; Edwards v. El navigable in fact," and that "they constiliott, 21 Wall. 532, 22 L. ed. 487; Johnson tute navigable waters of the United States v. Chicago & P. Elevator Co. 119 U. S. 388, within the meaning of the acts of Congress, 30 L. ed. 447, 7 Sup. Ct. Rep. 254; Shep-in contradistinction from the navigable wapard v. Steele, 43 N. Y. 52, 3 Am. Rep. 660. It remains to consider whether the contract in this case, which was for repairs furnished to a canal boat in a port of the state to which she belonged, was a maritime contract. If it were, the position of the state courts was wrong. The denial of exclusive jurisdiction on the part of the admiralty court to enforce this lien must rest upon one of two propositions: Either be cause the cause of action arose upon an artificial canal, or because a canal boat is not a ship or vessel contemplated by the maritime law, and within the jurisdiction of the admiralty court.

ters of the states, when they form, in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is, or may be, carried on with other states or foreign countries, in the customary modes in which such commerce is conducted by water." The same principle was applied in The Montello, 20 Wall. 430, 22 L. ed. 391, to the Fox river in Wisconsin, although its navigability was interrupted by rapids and falls over which portages were required to be made, and to Chicago river in Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442, 2 Sup. Ct. Rep. 185. See also Miller v. New York, 109 U. S. 385, 27 L. ed. 971, 3 Sup. Ct. Rep. 228; Re Garnett, 141 U. S. 8, 35 L. ed. 632, 11 Sup. Ct. Rep. 840.

1. At an early day, and following English precedents, it was held by this court in The Thomas Jefferson, 10 Wheat. 428, 6 L. ed. 358, that the admiralty courts could not The only distinction between canals and rightfully exercise jurisdiction, "except in other navigable waters is that they are rencases where the service was substantially dered navigable by artificial means, and performed, or to be performed, upon the sea, sometimes, though by no means always, are or upon waters within the ebb and flow of wholly within the limits of a particular the tide." The opinion is a brief one by Mr. state. We fail to see, however, that this Justice Story, and contains little more than creates any distinction in principle. They the announcement of the general principle, are usually constructed to connect waters and with no attempt to distinguish the Eng-navigable by nature, and to avoid the port lish cases. It lacks wholly any display of the abundant learning which, ten years before, had characterized his celebrated opinion in De Lovio v. Boit, 2 Gall. 398, Fed. Cas. No. 3,776. The case was a strong one for the adoption of English precedents, as it concerned a voyage from a port in Kentucky B up the Missouri river and back again to **the same port. It was, however, flatly overruled in The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058, and the modern doctrine established, to which this court has consistently and invariably adhered, that not the ebb and flow of the tide, but the actual navigability of the waters, is the test of jurisdiction. It is true, that case arose upon the Great Lakes, but the rule was sub

2

age of property from one navigable lake or river to another, or to improve or deepen a natural channel; and they are usually navi gated by the same vessels which ply between the naturally navigable waters at either end of the canal. Examples of these are the St. Clair ship canal, connecting St. Clair river with the lake of the same name; the St. Mary's canal, connecting the waters of Lake Superior with those of Lake Huron; the Illinois & Michigan canal, connecting the waters of Lake Michigan with the Missis sippi river; the Welland canal, between Lake Ontario and Lake Erie; the Suez canal, between the Mediterranean and the Red Sea; the Great North Holland canal, connecting Amsterdam directly with the Ger

canal was but 60 feet wide and 6 feet deep. It has never been overruled or questioned, and must be treated as settling the jurisdic tion of the admiralty court over the waters of any artificial canal which is the means of communication between ports and places in different states and territories. It is not intended here to intimate that, if the waters, though navigable, are wholly territorial and used only for local traffic,-such, for instance, as the interior lakes of the state of New York,-they are to be considered as navigable waters of the United States. The Montello, 11 Wall. 411, 20 L. ed. 191. In the case under consideration, however, the Erie canal, though wholly within the state of New York, is a great highway of commerce between ports in different states and foreign countries, and is navigated by vessels which also traverse the waters of Hudson river from the head of navigation to its mouth.

man ocean; and the Erie canal, connecting | its ownership and control." The case is the Lake Erie with the Hudson river. Indeed, more noteworthy from the fact that the most of the harbors upon the lakes and Atlantic coast are made accessible by canals wholly artificial, or by an artificial channel broadening and deepening their natural approaches. Can it be possible that a cause of action which would be maritime, if occurring upon those connected waters, would cease to be maritime if arising upon the connecting waters? Must a collision which would give rise to a suit in admiralty, if occurring upon Lake Ontario, or Lake Erie, be prosecuted at common law, if happening upon the Welland canal? This question arose in this country in the case of The Avon, Brown, Adm. 170, Fed. Cas. No. 680, in which Judge Emmons, in a carefully considered opinion, took jurisdiction of a collision upon that canal, although it was wholly within British territory. While this was, with one exception (Scott v. The Young America, Newberry, Adm. 101, Fed. Cas. No. 12,549), the earliest case in this country, it was no novelty in England, since, in The Diana, Lush. 539, Dr. Lushington assumed jurisdiction of a collision between two British vessels in the Great North Holland canal, rejecting altogether the contention that the legislature did not intend to give the court jurisdiction over matters occurring in foreign territorial waters. This jurisdiction has since been declared in England to extend to collisions between foreign vessels in the Bosphorus (The 'Mali Ivo, L. R. 2 Adm. & Eccl. 356), and in the Scheldt (The Halley, L. R. 2 P. C. 193). See also The Thomas Carroll, 23 Fed. 912; The Oler, 2 Hughes, 12, Fed. Cas. No. 10,485; The E. M. McChesney, 8 Ben. 150, Fed. Cas. No. 4,463, 15 Blatchf. 183, Fed. Cas. No. 4,464; Malony v. The City of Milwaukee, 1 Fed. 611; The General Cass, Brown, Adm. 334, Fed. Cas. No. 5,307. The tidal test was long since abolished by statute in England. 24 Vict. chap. 10; Marsden, Collisions, 210.

2. But the crucial question involved in this case is, whether the exclusive admiralty and maritime jurisdiction of the Federal courts attaches to canal boats,-in other words, whether they are ships or vessels within the meaning of the admiralty law. If it be once conceded, as, for the reasons above given, we think it must be, that navigable canals used as highways for interstate or foreign commerce are navigable waters of the United States, it would be an anomaly to hold that such jurisdiction did not attach to the only craft used in navigating such canals. It is true that, in the more modern constructions, these canals are made wide and deep enough for the largest vessels; but it so happens that the Erie canal was built at an early day, and was adapted only for vessels of light draught and peculiar construction. The possibilities of the future were then scarcely foreseen, and, even if they had been, the state was too poor to provide for anything beyond the immediate present. For those purposes the canal was amply sufficient, and for twenty years was the principal means of communication with the northwest, and was not only the highway over which all the merchandise was car. ried between the Hudson river and the Great Lakes, but was largely used for the trans-aportation of passengers in the great western immigration which immediately followed its construction. As late as 1850, large and handsomely equipped passenger vessels were run every day at stated hours, and the canal continued to be, even after the building of the railways, a favorite method of communi. cation with the Great Lakes. While these boats were vessels of light draught, and were drawn by animal power, they were

Finally, in Ex parte Boyer, 109 U. S. 629, 27 L. ed. 1056, 3 Sup. Ct. Rep. 434, such jurisdiction was held by this court to extend to collisions between two canal boats occurring in the Illinois & Lake Michigan canal, Mr. Justice Blatchford observing that "navigable water situated as this canal is, used for the purposes for which it is used,highway for commerce between ports and places in different states, carried on by vessels such as those in question here,-is public water of the United States, and within the legitimate scope of the admiralty jurisdiction conferred by the Constitution and statutes of the United States, even though the canal is wholly artificial, and is wholly within the body of a state, and subject to

ation depends, as it must, upon the facta that the cause of action arose upon the canal, and upon canal boats navigating such canal, the Case of Boyer would seem to be decisive of this.

from 150 to 300 tons' capacity,-larger than | admiralty court in the case under consider. those out of which arose the maritime law of modern Europe, and much larger than those employed by Columbus and the earlier navigators in their discovery of the new world. It is said by a writer in the Quarterly Review (Benedict, Adm. Pr. § 220), that "the first discoverers of America committed themselves to the unknown ocean in barks, one not above 15 tons; Frobisher, in two vessels of 20 or 25 tons; Sir Humphrey Gilbert, in one of 10 tons only." The ships * in which the Vikings of Scandinavia invaded England, and ravaged the coasts of western Europe (specimens of which are still preserved at Christiana), were open boats, not exceeding 100 feet in length and 16 in breadth, and propelled partly by oars and partly by a single sail. In fact, neither size, form, equipment, nor means of propulsion are determinative factors upon the question | U. S. Comp. Stat. 1901, p. 461) (now obsoof jurisdiction, which regards only the purpose for which the craft was constructed, and the business in which it is engaged.

The application of this criterion has ruled out the floating dry dock, the floating wharf, the ferry bridge hinged or chained to a wharf, the sailors' Bethel moored to a wharf (Cope v. Valette Dry Dock Co. 119 U. S. 625, 30 L. ed. 501, 7 Sup. Ct. Rep. 336), and a gas float moored as a beacon (The Whitton, [1895] p. 301, [1896] p. 42, [1897] A. C. 337).

But it has been held in England to include a fishing coble, a boat of 10 tons' burden, 24 feet in length, decked forward only, though accustomed to go only 20 miles to sea, and to remain out twelve hours at a time (Ex parte Ferguson, L. R. 6 Q. B. 280); a barge (The Malvina, Lush. 493, Affirmed on appeal, Brown & L. 57); though not a dumb barge, propelled by oars only (Everard v. Kendall, L. R. 5 C. P. 428); and, in America, steamers of 5 tons' burden, engaged in carrying freight and passengers upon navigable waters (The Pioneer, 21 Fed. 426; The Ella B. 24 Fed. 508; The Volunteer, Brown, Adm. 159, Fed. Cas. No. 16,990, Affirmed in 15 Int. Rev. Rec. 59); a barge, without sails or rudder, used for transporting grain (Woods v. The Wilmington, 5 Hughes, 205, 48 Fed. 566); a floating elevator (The Hezekiah Baldwin, 8 Ben. 556, Fed. Cas. No. 6,449). See also The Northern Belle, 9 Wall. 526, 19 L. ed. 748; The Alabama, 22 Fed. 449; Endner v. Greco, 3 Fed. 411.

So far as the Congress of the United States and the Parliament of England have incidentally spoken upon the subject, they have fixed a criterion of size as to what shall be considered a vessel within the admiralty jurisdiction far below the tonnage of an ordinary canal boat. By the original judiciary act of 1789, § 9 (1 Stat. at L. 77, chap. 20, U. S. Comp. Stat. 1901, p. 455), jurisdiction was given to the district courts of all seizures made "on waters which are navigable from the sea by vessels of 10 or more tons' burden;" and by the act of February 26, 1845 (5 Stat. at L. 726, chap. 20,

lete, The Eagle, 8 Wall. 15, 19 L. ed. 365), admiralty jurisdiction was given to vessels navigating the Great Lakes and their connecting waters of 20 tons burden and upwards. By Rev. Stat. § 4311 (U. S. Comp. Stat. 1901, p. 2959), vessels of 20 tons and upwards, enrolled and licensed, and vessels of less than 20 tons, not enrolled, but licensed, shall be deemed vessels of the United States; and by § 4520 (U. S. Comp. Stat. 1901, p. 3073), all vessels of 50 tons or upwards are required to ship their seamen under written articles. By the English merchants' shipping act of 1854 [17 & 18 Vict. p. 248, chap. 104], the word "ship' shall include every description of vessel used in navigation, not propelled by oars;" and a similar description is given of vessels within the admiralty jurisdiction, in the admiralty court act of 1861.

It seems, however, to be supposed that the fact that boats engaged in traffic upon the Erie canal are drawn by horses is sufficient of itself to exclude them from the jurisdic tion of the admiralty courts. This, however, is an argument which appeals less to the reason than to the imagination. So long as the vessel is engaged in commerce and navigation it is difficult to see how the jurisdiction of admiralty is affected by its means of propulsion, which may vary in the course of the same voyage, or with new discoveries made in the art of navigation. Thus, canal boats, upon their arrival at Albany, are at once relieved of their horses, and taken by a steamer in tow to New York or Jersey City.* Again, in Ex parte Boyer, 109 U. S. 629, To hold that such boats are not within the 27 L. ed. 1056, 3 Sup. Ct. Rep. 434, this admiralty jurisdiction of the courts, while court held the jurisdiction of the admiralty on a trip down the Hudson river, would recourt to extend to a collision between two quire us to overrule a large number of cases canal boats of more than 20 tons burden, in this court, in which it was assumed by one of which was in tow and the other pro- | both parties and the court that for damages pelled by steam. If the jurisdiction of the sustained by collision with other vessels