(250 U. S. 39) the river in the shape of a horseshoe, which STATE OF ARKANSAS v. STATE OF MIS- was known as Horseshoe Bend. It is averSISSIPPI. red in the bill, that in 1848 the river suddenly left its course and ran westerly across (Argued March 3 and 4, 1919. Decided May the points of the bend, cutting off a tract of 19, 1919.) No. 7, Original. 1. COURTS 347-FEDERAL COURT-PLEAD ING-REPLICATION. land which has become known as Horseshoe Island. The amended answer avers that this date is immaterial. That it did occur is avulsion occurred in 1842; but the exact Under new equity rule 31 (33 Sup. Ct. clearly established, and it is generally spoxxvii), no replication is required to make the is-ken of in the testimony as happening in 1848. sues, so absence thereof does not require allegations of answer to be taken as true. 2. STATES 12(2) - BOUNDARIES-NAVIGABLE STREAMS. Where boundary on a navigable river of two states on opposite sides of and separated by it is fixed in the case of the one first admitted "up the same," and in case of the other as "the middle of the main channel," it is the middle of the main navigable channel, and not along the line equidistant between the banks. We may say preliminarily that we find no substance in the contention of the respondbe taken as true for want of replication. ent that the allegations of the answer must in a case of this character no replication is Under new equity rule 31 (33 Sup. Ct. xxvii) required in order to make the issues. [2] The state of Arkansas contends that the old course of the river before the avulsion was within a body of water now known as Horseshoe Lake or Old river, a body of 3. STATES 13-BOUNDARIES-STATE DECI- water of considerable length and depth. The SIONS AND CONSTITUTIONS. Provisions of Constitutions of Mississippi and Arkansas, and decisions of courts thereof, relative to part of Mississippi river constituting boundary between those states, held, in suit between those states to determine such boundary, not to affect the question on the theory of acquiescence. 4. STATES AVULSION. state of Mississippi contends that the Old river ran through a body of water still remaining, but considerably further to the north, and known as Dustin Pond, and that before the avulsion the course of the river on the upper side of the Bend was considerably to the westward of the course claimed by Arkansas, and ran where now there is a slough 12(2)-BOUNDARIES-STREAMS- not far from the middle of Horseshoe Island. These diverse claims are illustrated by an examination of the map, Exhibit A, attached to the bill. As we view the case it is practically controlled by the decision of this court in Arkansas v. Tennessee, 246 U. S. 158, 38 Sup. Ct. 301, 62 L. Ed. 638, L. R. A. 1918D, 258. In view of that decision we are relieved of the necessity of a discussion in detail of much that is urged upon our attention now. Arkansas was admitted to the Union June 15, 1836 (5 Stat. 50, 51, c. 100) by an act of Congress which as to its boundaries provided: "Beginning in the middle of the main channel. of the Mississippi river, on the parallel of thirty-six degrees north latitude, running from thence west, with the said parallel of latitude to the St. Francis river; thence up the middle of the main channel of said river to the parallel of thirty-six degrees thirty minutes north; Mr. Justice DAY delivered the opinion of from thence west to the southwest corner of the the Court. [1] This is a suit brought to determine a portion of the boundary line between the states of Arkansas and Mississippi. It appears that at the place in dispute the Mississippi river formerly had its course from Friar's Point in a southwesterly direction, then made a turn to the south, flowing in a southerly direction, then a turn towards the west in the shape of a half moon, then a sharp turn to the north and flowing northerly, and thence westerly, making a bend in state of Missouri, and from thence to be bounded on the west, to the north bank of Red river, by the lines described in the first article of the treaty between the United States and the Cherokee Nation of Indians west of the Mississippi, made and concluded at the city of Washington on the 26th day of May, in the year of our Lord one thousand eight hundred and twenty-eight; and to be bounded on the south side of Red river by the Mexican boundary line, to the northwest corner of the state of Louisiana; thence east, with the Louisiana state line, to the middle of the main channel of the Missis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (39 Sup.Ct.) sippi river; thence up the middle of the main channel of the said river, to the thirty-sixth degree of north latitude, the point of beginning." Mississippi had previously been admitted to the Union by an act of Congress of March 1, 1817 (3 Stat. 348, c. 23), which provided: "Beginning on the river Mississippi at the point where the southern boundary line of the state of Tennessee strikes the same, thence east along the said boundary line to the Tennessee river, thence up the same to the mouth of Bear creek; thence by a direct line to the northwest corner of the county of Washington [Alabama]; thence due south to the Gulf of Mexico; thence westwardly, including all the islands within six leagues of the shore, to the most eastern junction of Pearl river with Lake Borgne; thence up said river to the thirty-first degree of north latitude thence west along the said degree of latitude to the Mississippi river; thence up the same to the beginning." It will be observed that the language of the Mississippi act, so far as now important to consider, fixes the boundary upon the Mississippi river as "up the same to the beginning," and the language of the Arkansas act is, "Beginning in the middle of the main channel of the Mississippi river; thence east, with the Louisiana state line, to the middle of the main channel of the Mississippi river; thence up the middle of the main channel of the said river, to the 36th degree of north latitude, the point of beginning." * The state of Arkansas contends that these acts of Congress fix the middle of the channel of navigation as it existed before the avulsion as the boundary line between the states. By the state of Mississippi it is contended that the boundary line is a line equidistant from the well defined banks of the river. Language to the same effect as that contained in the acts of admission now be fore us was before this court in the case of Arkansas v. Tennessee, supra, and in that case the subject was considered, and the meaning of the Arkansas act, and similar language in the act admitting the state of Tennessee was interpreted. The rule laid down in Iowa v. Illinois, 147 U. S. 1, 13 Sup. Ct. 239, 37 L. Ed. 55, was followed, and it was held that where the states of the Union are separated by boundary lines described as "a line drawn along the middle of the river," or as "the middle of the main channel of the river," the boundary must be fixed at the middle of the main navigable channel, and not along the line equidistant between the banks. We regard that decision as settling the law, and see no reason to depart from it in this instance. [3] It is urgently insisted that the laws and decisions of Arkansas and Mississippi are to the contrary, and our attention is called to Joint Resolution of Congress of 1909, 35 Stat. 1161, No. 5, which provides: "That the consent of the Congress of the Unit ed States is hereby given to the states of Mississippi and Arkansas *to enter into such agreement or compact as they may deem desirable or necessary, not in conflict with the Constitution of the United States, or any law thereof, to fix the boundary line between said States, where the Mississippi river now, or formerly, formed the said boundary line, and to cede respectively each to the other such tracts or parcels of the territory of each state as may have become separated from the main body thereof by changes in the course or channel of the Mississippi river and also to adjudge and settle the jurisdiction to be exercised by said states, respectively, over offenses arising out of the violation of the laws of said states upon the waters of the Mississippi river." Approved January 26, 1909. No specific agreement appears to have been entered into under this act; but it is insisted that Arkansas and Mississippi by their re spective Constitutions have fixed the boundary line, as it is now claimed to be by the state of Mississippi, and that such boundary line has become the true boundary of the states, irrespective of the decision of this court in Iowa v. Illinois, supra, followed in Arkansas v. Tennessee, supra. We have examined the Constitutions and decisions of the respective states, and find nothing in them to change the conclusions reached by this court in determining the question of boundary between states. A similar contention was made in Arkansas v. Tennessee as to the effect of the Arkansas and Tennessee legislation and decisions, and the contention that the local law and decisions controlled in a case where the interstate boundary was required to be fixed, under circumstances very similar to those here presented, was reIn that case the Arkansas cases, jected. which are now insisted upon as authority for the respondent's contention, were fully reviewed. The Mississippi cases called to our attention, of which the leading one seems to be Magnolia v. Marshall, 39 Miss. 109, as well as the legislation of the *state, seem to sustain the claim that local jurisdiction and right of soil to the middle of the river, is fixed by a line equidistant from the banks. But whatever may be the effect of these decisions upon local rights of property or the administration of the criminal laws of the state, when the question becomes one of fixing the boundary between states separated by a navigable stream, it was specifically held in Iowa v. Illinois, supra, followed in later cases, that the controlling consideration is that which preserves to each state equality in the navigation of the river, and that in such instances the boundary line is the middle of the main navigable channel of the river. In Arkansas v. Tennessee, supra, 246 U. S. page 171, 38 Sup. Ct. page 304 (62 L. Ed. 638, L. R. A. 1918D, 258), we said: "The rule thus adopted [that declared in Iowa v. Illinois] known as the rule of the 'thalweg,' *46 has been treated as set at rest by that deci- fendant was deprived of a right, privilege, or sion. Louisiana v. Mississippi, 202 U. S. 1, immunity under the Constitution of the United 49 [26 Sup. Ct. 408, 50 L. Ed. 913]; Washing- States and treaties made thereunder, properly ton v. Oregon, 211 U. S. 127, 134 [29 Sup. set up and claimed, such a federal question Ct. 47, 53 L. Ed. 118]; 214 U. S. 205, 215 would not, under Judicial Code, § 237, as amend[29 Sup. Ct. 631, 53 L. Ed. 969]. The argued by Act Sept. 6, 1916, § 2 (Comp. St. § 1214), ment submitted in behalf of the defendant give the national Supreme Court jurisdiction state in the case at bar, including a reference to review by writ of error the resulting judgto the notable recent decision of its Supreme ment. Court in State v. Muncie Pulp Co. (1907) 119 Tennessee, 47 [104 S. W. 437], has failed to convince us that this rule ought now, after the lapse of 25 years, to be departed from." We are unable to find occasion to depart from this rule because of long acquiescence in enactments and decisions, and the practices of the inhabitants of the disputed territory in recognition of a boundary, which have been given weight in a number of our cases where the true boundary line was difficult to ascertain. See Arkansas v. Tennessee, supra, and the cases cited at page 172 of 246 U. S. (38 Sup. Ct. 301, 62 L. Ed. 638, L. R. A. 191SD, 258). [4] This record presents a clear case of a change in the course of the river by avulsion, and the applicable rule established in this court, and repeatedly enforced, requires the boundary line to be fixed at the middle of the channel of navigation as it existed just previous to the avulsion. The location and determination of such bound*ary is a matter which we shall leave in the first instance to a commission of three competent persons to be named by the court upon suggestion of counsel, as was done in Arkansas v. Tennessee. See 247 U. S. 461, 38 Sup. Ct. 557, 62 L. Ed. 1213. This commission will have before it the record in this case, and such further proofs as it may be authorized to receive by an interlocutory decree to be entered in the case. Counsel may prepare and submit the form of such decree. (250 U. S. 71) 3. COURTS 394(8)-SUPREME COURT-ERROR TO STATE COURT-VALIDITY OF AUTHORITY EXERCISED UNDER UNITED STATES. Ruling of state Supreme Court, setting aside continuance till decision of original suit between states in national Supreme Court to determine state boundary, of cause between individuals involving the state boundary pending in state court on appeal, is not an adverse decision on an authority exercised under the United States, giving the national Supreme Court jurisdiction by writ of error under Judicial Code, § 237, as amended by Act Sept. 6, 1916, § 2 (Comp. St. § 1214), but at most affords ground for application for review of the resulting judgment by certiorari, as deciding against an asserted title, right, privilege, or immunity under the federal thority of the national Supreme Court to renConstitution; the ruling not involving the auder a conclusive decision in the suit between the states, but merely the consequences that were to flow from exercise of such admitted authority. 4. CERTIORARI 40-SUPREME COURT-CERTIORARI TO STATE COURT-TIME OF APPLICATION. Application to national Supreme Court for writ of certiorari to state court, being after expiration of the three months limited by Act Sept. 6, 1916, § 6 (Comp. St. § 1228a), cannot be entertained. In Error to the Supreme Court of the State of Mississippi. Replevin by Ed Jackson and others against the Rust Land & Lumber Company. Judg ment for plaintiffs was affirmed by the Supreme Court of Mississippi (73 South. 345), and defendant brings error, and applies for writ of certiorari. Dismissed and denied. *Messrs. Albert M. Kales, Herbert Pope, Stephen A. Foster, and Harry Eugene Kelly, Decided May 19, all of Chicago, Ill., for plaintiff in error. RUST LAND & LUMBER CO. v. JACKSON 1. COURTS 1919.) No. 171. Messrs. Garner W. Green and Marcellus Green, both of Jackson, Miss., and Gerald Fitz Gerald, of Clarksdale, Miss., for de 391(1)-SUPREME COURT-RE- fendants in error. VIEW OF STATE COURT. Judgment of state Supreme Court, rendered after taking effect of Act Sept. 6, 1916, is reviewable by national Supreme Court. if at all, only by virtue of that act and in accordance with its provisions. Mr. Justice PITNEY delivered the opinion of the Court. This case was brought on for argument immediately following Arkansas v. Mississippi, No. 7, Original, 250 U. S. 39, 39 Sup. Ct. this day disposed of. 422, 63 L. Ed. COURTS 394(25)—SuprEME COURT-ERROR TO STATE COURT-STATE BOUNDARIES. It was a replevin suit, brought in the cirThough in the state court the issue involy-cuit court of one of the counties of Missising the location of the boundary lines between sippi by defendants in error to recover cerstates was submitted to the jury by instructions tain timber taken by plaintiff in error from based on a wrong principle, and thereby de- their possession under a claim of ownership. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (39 Sup.Ct.) [3] But it is insisted that the Supreme Court of the state, in the course of its review of the judgment of the circuit court, rendered an adverse decision upon the question of the validity of an authority exercised under the United States, and for this reason we have jurisdiction by writ of error under the amended section 237. They recovered a verdict and judgment in [ed, nor could it be, that under section 237, the circuit court, and the judgment was af- Judicial Code, as amended, a federal quesfirmed by the Supreme Court of the state, tion of this character would give us jurisdicwithout opinion (73 South. 345). Ownership tion to review the resulting judgment by of the timber was deemed to depend upon writ of error. Were that the only federal the ownership of the land from which it had question, clearly it would at most furnish been cut; and this was in dispute, and ac- ground for a review by certiorari. cording to the theory of plaintiff in error was dependent upon the location of the state boundary. The land lay in the Mississippi river bottom, in the vicinity of Horseshoe Bend, where a portion of the former channel had been abandoned as the result of a sudden change that occurred in the year *1848; the river having broken through the neck of the Bend and formed a new channel there, with the result that in the course of time the former channel around the Bend was abandoned and in large part filled up, and its location as it was prior to the avulsion has become, after the lapse of so many years, difficult of ascertainment. The adjoining states whose common boundary is marked by the river at this point are in dispute as to its former location, and also as to whether the boundary ought to follow the middle of the former main channel of navigation or rather a line equidistant from the banks of the river at ordinary stage of water. To determine this controversy, the suit between the states was brought in this court, and it is still pending. The question arose as follows: Plaintiff in error moved the Supreme Court to continue the cause until the decision by this court of the original action then and still pending between the states of Arkansas and Mississippi, in which the location of the disputed boundary at or near the land in question is involved. This motion at first was sustained; but afterwards the defendants in error moved to set aside the continuance upon these grounds: (1) That the decision of this court in the suit between the states would not be controlling in the present case because it would not be rendered upon the same testimony; (2) that the Supreme Court of Mississippi was an appellate tribunal without original jurisdiction, empowered only to [1] It is the contention of plaintiff in error affirm or reverse a decision of the circuit that the judgment in the present case was court, depending upon whether that court based upon the determination of an issue upon the evidence before it had reached a which necessarily involved the location of correct conclusion, and that there was no the interstate boundary; and our first in- way in which the judgment of this court in quiry must be whether the judgment of the the suit between the states could be introSupreme Court of Mississippi herein is reduced before the Supreme Court of Missisviewable in this court by writ of error. The sippi; and (3) because the latter court was judgment was rendered December 23, 1916, after the taking effect of the Act of Sep-not in any way subject to the final jurisdictember 6, 1916 (chapter 448, § 2, 39 Stat. 726), amendatory of section 237, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156 [Comp. St. § 1214]), and hence is reviewable here, if at all, only by virtue of that act and in accordance with its provisions. [2] It is asserted that the issue involving the location of the boundary line between the states was submitted to the jury under instructions from the trial judge based upon a theory inconsistent with the true principle of decision as laid down by this court in Iowa v. Illinois, 147 U. S. 1, 13 Sup. Ct. 239, 37 L. Ed. 55, Arkansas v. Tennessee, 246 U. S. 158, 38 Sup. Ct. 301, 62 L. Ed. 638, L. R. A. 1918D, 258, and Cissna v. Tennessee, 246 U. S. 289, 38 Sup. Ct. 306, 62 L. Ed. 720, and that thereby plaintiff in error was deprived of a right, privilege, or immunity claimed under the Constitution of the United States and treaties made thereunder. Even if the record showed that such a right, privilege, or Immunity was properly set up *and claimed in the state court, it of course is not maintain tion of this court. This motion was sustain ed, the continuance was set aside, and the cause was placed upon the docket and afterwards disposed of in its regular order, with the result, as is maintained, that final judgment was rendered upon an erroneous theory respecting the location of the interstate boundary line. It is the contention of plaintiff in error that by the last-mentioned motion the validity of the authority of this court to determine the issues involved in the suit between the states was drawn in question, and that the decision of the Supreme Court of Mississippi was against its validity. We do not, however, regard the ruling of the state court as having involved the authority or jurisdiction of this court to render a conclusive decision in the suit between the states respecting the location of the boundary line, and hence do not consider that there was any question concerning the valid ity of "an authority exercised under the United States" within the meaning of section 237. The question raised involved merely COURTS 389-APPEAL-FROM COURT OF For purpose of review on appeal from Court of Claims its findings are to be treated like a verdict, and the evidence cannot be referred to for purpose of eking out, controlling, or modifying their scope. 3. PATENTS 328-INFRINGEMENT - CABLE CRANE WITH GRAVITY ANCHOR. The Brothers patent, No. 551,614, for a cable crane with a gravity anchor, the essential feature of which is a nonyielding support or anchor at one end of the cable, and a yielding, tilting, or rocking support at the opposite end, held not infringed by cableways used by the United States, tightening of which caused an incidental yielding inward of the two rigid tow ers. Appeal from the Court of Claims. the consequences that were to flow from the United States, assignee of letters patent has no exercise of an admittedly valid authority un-claim, under Act June 25, 1910, c. 423, 36 Stat. der the United States; that is to say, the 851 (Comp. St. § 9465), for any unlicensed use effect upon the rights of third parties of a of the patented invention by the United States particular exercise by this court of its con- prior to such assignment. stitutional jurisdiction over a controversy 2 between two states-the concrete questions being (a) whether, in the event that our decision should be adverse to the state of Mississippi, and therefore, according to the the ory of plaintiff in error, inconsistent with the title of its opponents, plaintiff in error would be entitled to set up that decision and judgment as conclusive against defendants in error; and (b) whether, in aid of such right, plaintiff in error was entitled to have the suit against it in the state court stayed to await our decision in the suit between the states. In effect, the contention was that the original jurisdiction conferred by the Constitution upon this court in controversies between states was of such a nature as to render our decree made in a suit of that kind binding upon private parties asserting opposing claims to lands in the disputed territory, and to prevent such private parties from prosecuting their litigation in a state court pending our determination of the suit between states. In setting up this contention plaintiff in error did no more than assert a title, right, privilege, or immunity under the Constitution of the United States. This, at most, afforded ground for an application to this court for a review of the resulting judgment by certiorari, but not for a writ of error. The case of Cissna v. Tennessee, 242 Appellant brought this action in the Court U. S. 195, 37 Sup. Ct. 108, 61 L. Ed. 243; 246 of Claims under the Act of June 25, 1910 U. S. 289, 293, 38 Sup. Ct. 306, 62 L. Ed. 720, (chapter 423, 36 Stat. 851 [Comp. St. § 9465]), in which a similar question was raised but to recover compensation for the unlicensed not passed upon was brought to this court use by the United States in the Panama Caby writ of error, but before section 237, Ju-nal work of his patented invention for "imdicial Code was amended by the act of 1916. The present writ of error must be dismissed. [4] On the eve of the argument a writ of certiorari was applied for; but as this was long after the expiration of the three months limited by section 6 of the Act of September 6, 1916 (Comp. St. § 122Sa), the application [1] From the findings it appears that cannot be entertained, irrespective of wheth- claimant filed application for his patent er the record shows a proper case for the al-July 18, 1895, and, upon such application, lowance of that writ. Writ of error dismissed. Application for writ of certiorari denied. (250 U. S. 88) Action by William F. Brothers against the Mr. William F. Brothers, pro se. Mr. Assistant Attorney General Frierson, for the United States. Mr. Justice PITNEY delivered the opinion of the Court. provements in cable cranes with gravity anchors." That court made findings of fact upon which it concluded as matter of law that there was no infringement of claimant's patent, and thereupon dismissed his petition. 52 Ct. Cl. 462. letters patent No. 551,614 were granted and issued, under date December 17, 1895, to his assignees, Sarah E. Brothers and Maria A. Brown, to whom he had made assignment pending the application. Subsequently the letters patent were assigned to claimant, under date October 2, 1912, 22 months prior to their expiration by limitation on December 17, 1912. His claim to compensation is necessarily limited to this brief period, since there could be no assignment to him of 111-CLAIM AGAINST any unliquidated claim against the government arising prior to the time he became the owner of the patent. Rev. St. § 3477 (Comp. St. § 6383). Decid BROTHERS v. UNITED STATES. (Argued and Submitted March 28, 1919. ed May 19, 1919.) No. 309. 1. UNITED STATES ASSIGNMENT. In view of Rev. St. § 3477 (Comp. St. § 6383), as to assignment of claims against the For other cases see same topic and KEY-NUMBER in al: Key-Numbered Digests and Indexes *80 |