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Township of Burilington v. Beasley/Opinion of the Court

The bonds which are the foundation of this action purport upon their face to be issued by virtue of an act of the legislature of the State of Kansas, approved March 2, 1872, of which the title is given in the bonds. They contain no specific statement of the purpose for which they were issued. There is nothing upon their face to indicate fraud, unlawful assumption of authority, or irregularity. If there was, in fact and in law, authority in the town under any circumstances to issue its bonds, and if these bonds bear the impress of such authority, there is nothing to vitiate them when taken by bona fide holders.

The second answer alleges that the bonds were issued to John S. Stow to aid in the construction and completion and to furnish the motive power of a steam custom grist-mill in the town of Burlington, that an election to determine whether they should be thus issued was held under the provisions of the statute referred to, and that a majority of the qualified electors of the town voted in favor of issuing the bonds. Certain proceedings between Stow and the town are also set forth, but as they are not referred to in the briefs, it is not necessary here to allude to them.

The principal contestation of the plaintiff in error is that it had no power to issue the bonds in question under the statute of March, 1872. Statutes of Kansas, 1872, c. 68, 110.

The first section of this act provides that the trustee, clerk, or treasure of any municipal township is empowered to issue its bonds 'for the purpose of building bridges, free or otherwise, or to aid in the construction of railroads or water-power, by donation thereto or the taking of stock therein, or for other works of internal improvement.' Certain restrictions and conditions are imposed, in relation to which no question here arises.

If the motive power intended to be used by Mr. Stow, and to aid in the construction of which these bonds were issued, had been that of water accumulated by dams and discharged upon wheels, the purpose would have been within the specific language of the act. To aid in the construction of 'water-power' is one of the purposes named. But the mill was a steam-mill. It was a custom grist-mill operated by steam. Does such an establishment fall within the description of 'other works of internal improvement'? This expression is usually applied to railroads and canals. To confine it to those two subjects would be to give to the statute a narrow construction; and that it was not so intended is evident from the ninth section, where 'a bridge or other work of internal improvement, except railroads,' is three times spoken of. Similar language is used in the eleventh section and in the twelfth section of the act.

A state-house is an internal improvement, as is a county court-house, a jail, or a penitentiary (Commissioners of Leaven-worth Co. v. Miller, 7 Kan. 479), as much as is a railroad, a canal, or a bridge. A mill run by water is declared to be an internal improvement by the statute we are considering. A ferry falls within the same principle, and so does a steam-mill. It would require great nicety of reasoning to give a definition of the expression 'internal improvement,' which should include a grist-mill run by water, and exclude one operated by steam; or which would show that the means of transportation were more valuable to the people of Kansas than the means of obtaining bread. It would be a poor consolation to the people of this town to give them the power of going in and out of the town upon a railroad, while they were refused the means of grinding their wheat.

Railroads, turnpikes, buildings, bridges ferries, reclaiming swamps, and the like, are no doubt improvements. If such improvement is within the limits of a town or county, it is internal to such town or county.

The statute of Kansas upon the subject of grist-mills is based upon the idea, and, indeed, upon the declaration, that all grist-mills are public institutions. In c. 65 of the statute of 1868, p. 573, it is thus enacted: 'All water, steam, or other mills, whose owners or occupiers grind or offer to grind grain for toll or pay, are hereby declared public mills.' Regulation is then made for the order in which customers shall be attended to (first come first served), the liability of the miller, his duty in assisting to load and unload, and that the rates of toll shall be conspicuously posted.

Under our recent decision in Munn v. Illinois, supra, p. 112, and the other cases upon kindred subjects, it would be competent to the legislature of Kansas to regulate the toll to be taken at these mills. It is a reasonable construction of this statute to hold that aid to this mill is aid of a public work within its meaning, and that the construction and equipment of a steam grist-mill was an internal improvement.

The case of Loan Association v. Topeka, 20 Wall. 661, will adjudge these bonds to be legal. The point is there expressly made that bonds, when issued for a public purpose, a public use, which it is the right and the duty of the State government to assist, and valid. The issue we are considering falls within this definition.

Judgment affirmed.

MR. JUSTICE FIELD dissented.


text: Talk:Township of Burilington v. Beasley/Opinion of the Court

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text:
United States v. Fox (94 U.S. 315)

ERROR to the Court of Appeals of the State of New York.

In February, 1870, Charles Fox, of the city of New York, died possessed of certain personal and real property situated in the State of New York. By his last will and testament, he devised and bequeathed the whole property, after the payment of his debts, to the government of the United States, for the purpose of assisting to discharge the debt created by the war of the Rebellion. By the government of the United States, the body politic, the nation known as the United States was meant. Upon the petition of the District Attorney of the United States, the will was presented for probate before the Surrogate of the city and county of New York. The infant heirs of the deceased contested the will. The Surrogate decreed that the will was inoperative and void as a devise of real estate; that the United States could not lawfully take and hold the real estate as devisee under the will, in trust or otherwise, and that it descended to the heirs-at-law. He at the same time decided that the will was valid and operative as to the personal estate of the testator, and that the United States was the sole legatee; and accordingly admitted the testament to probate as a will of personal estate only. On appeal from the Surrogate, this decree was affirmed by the Supreme Court, and afterwards by the Court of Appeals of the State. The case was then brought here.

Mr. Assistant Attorney-General Smith for the United States.

1. Though there is in the Federal Constitution no express delegation of power to accept a devise, it is submitted that the power of acquiring property for public purposes in any part of the country, by all the usual methods known to the law, is an essential attribute of the sovereignty of the United States, without which it cannot efficiently exercise its functions. There is no distinction in this respect between real and personal property, or between devises and conveyances. If a State can forbid the government taking by devise, is may forbid its taking by grant.

Marshall, C. J., in his opinion in United States v. Maurice, 2 Brock. 109, answered the objection that the United States could enter into no contract not previously directed by statute: 'The United States is a government, and consequently a body politic and corporate, capable of attaining the objects for which it was created by the means which are necessary for their attainment. This great corporation was ordained and established by the American people, and endowed by them with great powers for important purposes. It powers are unquestionably limited; but while within those limits, it is as perfect a government as any other, having all the faculties and properties belonging to a government, with a perfect right to use them freely, in order to accomplish the objects of its institutions. It will certainly require no argument to prove that one of the means by which some of these objects are to be accomplished is contract; the government, therefore, is capable of contr cting, and its contracts may be made in the name of the United States.'

This court indicated its assent to these propositions in United States v. Tingey, 5 Pet. 128, where it held, 'Upon full consideration of the subject, we are of opinion that the United States have such a capacity to enter into contracts. It is, in our opinion, an incident to the general right of sovereignty,' &c. It had long before been decided, that, without legislative authority first obtained, suit might be maintained by the United States upon such a contract. 'It would be strange to deny to them a right which is secured to every citizen of the United States.' Dugan v. United States, 3 Wheat. 181; Cotton v. United States, 11 How. 231. Upon judgments recovered in such suits it is an everyday occurrence for the United States to seize, hold, and sell land. United States v. Bradley, 10 Pet. 359; United States v. Lynn, 15 id. 311. In 1870, referring to United States v. Tingey, this court said: 'The decision was put upon the ground that the government had the capacity to make the contract; that the United States were a body politic, and that, as incident to the general right of sovereignty, it was competent to enter into any contract not prohibited by law, and found to be expedient in the just exercise of the powers confided to it by the Constitution. Dugan v. United States, 3 Wheat. 172, was referred to as sustaining this proposition. It was remarked, that a different principle would involve a denial to the general and the State governments of the ordinary rights of sovereignty.' United States v. Hodson, 10 Wall. 407.

Except as involved in the power to borrow money and purchase sites for public works, the power to make contracts is not expressly given by the Constitution, nor is it, in these decisions, placed upon any particular provision of that instrument, but is implied from the existence of a sovereignty to which it is necessarily incident.

There is no express grant of power to take land for public uses by right of eminent domain. For more than three-quarters of our national existence it was exercised only through the assent and agency of the several States. But, though long dormant, it has always existed, and is implied in the very idea of sovereignty. Kohl v. United States, 91 U.S. 371 et seq.

By the exercise of the right of eminent domain land is taken for public uses. If this result can be lawfully secured by a process in invitum, it would certainly seem that the United States might also accept land when voluntarily donated or devised. Its power to take and hold land, in order to secure, liquidate, or compromise debts due to it, had been recognized by legislation and judicial decision ever since the early days of the Republic. The validity of the statutes giving priority to such debts is inferred from the clause relating to the payment of the public debt, because this is an appropriate means of accomplishing this object. United States v. Fisher, 2 Cranch, 396; Metropolitan Bank v. Van Dyck, 27 N. Y. 437. The act of July 11, 1798, c. 72, § 15, 1 Stat. 594, gives a lien upon the real estate of public debtors, provides for the sale of it, and defeats the lien of prior judgment creditors. Thelusson v. Smith, 2 Wheat. 396; United States v. Duncan, 4 McLean, 607, and 12 Ill. 223; United States v. Mechanics' Bank, Gilpin, 51. A similar royal prerogative in England 'goes back as far as the period of legal memory.' Giles v. Grover, 9 Bing. 128, 192; Hoke v. Henderson, 3 Dev. (N. C.) 17.

Thus we see that the government may, with the strong hand, not only take land to erect forts and buildings thereon, but to obtain payment of its dues. Neilson v. Lagow, 12 How. 98-108.

It not only secures lands by right of eminent domain, by conveyance, by levy and sale under execution, but may also, by conquest or by proceedings in confiscation, acquire them without the assent f the State where they lie. Titus v. United States, 20 Wall. 483; United States v. Huckabee, 16 id. 434; United Insurance Company v. United States, 6 id. 759. Its power to take and hold lands, either by gift, contract, or force, is not derived from, nor can it be defeated by, State legislation.

Mr. James Flynn, contra.

1. New York is a sovereign State (4 Cranch, 209; 3 Cow. 686), and the original owner of the land within her limits. N. Y. Const., art. 1, sect. 11. Except in cases where jurisdiction is ceded, she has the sovereign and only right to make laws relating to that land (47 N. Y. 467; 4 McLean, 230; 19 Wall. 676; 17 Johns. 225; 20 How. 558; 5 Pet. 398; 1 Wood. & M. 76-80; 1 Kent, Com. 430); and she has never surrendered the regulation and control of its transmission, by will or devise. 52 N. Y. 534.

The validity of a devise, and the capacity or incapacity to devise, depend upon and are governed by the statutes and judicial decisions of the State within which the land is situate. Story on Conflict of Laws, sects. 465-474; McCormick v. Sullivant, 10 Wheat. 192; United States v. Crosby, 7 Cranch, 115; Kerr v. Moon, 9 Wheat. 565; Boyce v. City of St. Louis, 29 Barb. 650; White v. Howard, 46 N. Y. 144; Levy v. Levy, 33 id. 123, 136, 137; Aicardi v. The State, 19 Wall. 635.

The statute under consideration regulates the transmission of lands in New York, and in effect declares that they shall be devised only to such natural persons as are by law capable of holding by devise, or to such corporations as the State has expressly authorized, by charter or by statute, to take by devise. Holmes v. Mead, 52 N. Y. 340. In this case, the only question was as to the meaning of the statute; and it is well settled that this court will follow the construction given to State statutes by the courts of a State where the title to real property is involved. 13 Wall. 306.

2. The United States cannot take by devise. It exists under and by virtue of a written constitution. It has certain specified powers, and such others as are necessary to carry into effect those expressly granted. All other powers are reserved to the States respectively or to the people. U.S. Const., amend. 10; Story on the Const., sect. 1238; 1 Kent, Com. 251-254. Among its enumerated powers is not that of taking by devise. If it exists, it exists by implication. The experience of a century in peace and war has demonstrated that the government can exist without the power to take by devise, and that the right so to take is not necessary to carry into effect any express power. 1 Kent, Com. 254; Story on the Const., sect. 1239.

But if the power to take may be implied, there is no act of Congress authorizing it. That of May 1, 1820, Rev. Stat., sect. 3736, enacts that 'No land shall be purchased on account of the United States, except under a law authorizing such purchase.'

3. The United States has no common law. 8 Pet. 658. The appellant assumes, however, that certain common-law prerogatives of the king inhere in the United States, and for that reason are not affected by the statutes of New York.

There is no analogy between the position thus assumed and the principle that 'the king is not bound by any act of Parliament, unless he be named therein by special and particular words.' This principle only extends to the sovereign by or under whom the law was enacted. 3 Keyes, 125.

New York is sovereign, except where she has surrendered her sovereignty to the United States. The latter is sovereign for specific purposes; each within its proper sphere is independent of the other. 21 How. 506. The United States claims not by virtue of its own laws, but under a will made in professed pursuance of, and depending for its validity upon, the laws of another sovereignty; and it is as much bound by those laws as any foreign state or nation would be, under the same circumstances. Fox v. Ohio, 5 How. 410; Mayor of New York v. Mil, 11 Pet. 102; Barker v. The People, 3 Cow. 686.

MR JUSTICE FIELD, after stating the case, delivered the opinion of the court.

title: United States v. Fox (94 U.S. 315)


text: Talk:United States v. Fox (94 U.S. 315)

title: Talk:United States v. Fox (94 U.S. 315)


text:
United States v. Fox (94 U.S. 315)/Opinion of the Court

The sole question for our consideration in this case is the validity of a devise to the United States of real estate situated in the State of New York. The question is to be determined by the laws of that State. It is not pretended that the United States may not acquire and hold real property in the State, whenever such property is needed for the use of the government in the execution of any of its powers; as, for instance, when needed for arsenals, fortifications, light-houses, custom-houses, court-houses, barracks, hospitals, or for any other of the many public purposes for which such property is used. And when the property cannot be acquired by voluntary arrangement with its owners, it may be taken against their will by the United States in the exercise of their power of eminent domain, upon making just compensation,-a power which can be exercised in their own courts, and would always be resorted to, if, through caprice of individuals or the hostility of the State legislature, or other cause, harassing conditions were attached to the acquisition of the required property in any other way. Kohl v. United States, 91 U.S. 367.

The power of the State to regulate the tenure of real property within her limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners, is undoubted. It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated. McCormick v. Sullivant, 10 Wheat. 202. The power of the State in this respect follows from her sovereignty within her limits, as to all matters over which jurisdiction has not been expressly or by necessary implication transferred to the Federal government. The title and modes of disposition of real property within the State, whether inter vivos or testamentary, are not matters placed under the control of Federal authority. Such control would be foreign to the purposes for which the Federal government was created, and would seriously embarrass the landed interests of the State.

Statutes of wills, as is justly observed by the Court of Appeals, are enabling acts, and prior to the statute of 32 Hen. VIII. there was no general power at common law to devise lands. The power was opposed to the feudal policy of holding lands inalienable without the consent of the lord. The English Statute of Wills became a part of the law of New York upon the adoption of her Constitution in 1777; and, with some modifications in its language, remains so at this day. Every person must, therefore, devise his lands in that State within the limitations of the statute or he cannot devise them at all. His power is bounded by its conditions. That statute provides that a devise of lands may be made 'to any person capable by law of holding real estate; but no devise to a corporation shall be valid unless such corporation be expressly authorized by its charter or by statute to take by devise.'

The term 'person' as here used applies to natural persons, and also to artificial persons,-bodies politic, deriving their existence and powers from legislation,-but cannot be so extended as to include within its meaning the Federal government. It would require an express definition to that effect to give it a sense thus extended. And the term 'corporation' in the statute applies only to such corporations as are created under the laws of the State. It was so held by the Court of Appeals in White v. Howard, 46 N. Y. 164, 165, and its construction of the statute is conclusive upon us. A devise to the United States of real property situated in that State is, therefore, void.

Decree affirmed.


text: Talk:United States v. Fox (94 U.S. 315)/Opinion of the Court


text:
Hill v. Thompson

ERROR to the Circuit Court of the United States for the Eastern District of Michigan.

Thompson commenced proceedings in involuntary bankruptcy against Hill & Leufestey in the District Court for the Eastern District of Michigan. Hill appeared to show cause against the petition, and, under sect. 5026, Rev. Stat., demanded a trial by jury, 'to ascertain the fact of the alleged bankruptcy.' Pursuant to this demand a trial was had, which resulted in a verdict finding the facts set forth in the petition to be true; and an adjudication was made accordingly. Exceptions were taken at the trial to the rulings of the court upon the admissibility of testimony, and also to the charge. The proceedings were then carried by writ of error to the Circuit Court, where the judgment of the District Court was affirmed; and this court is now asked to review the action of the Circuit Court by writ of error.

Mr. H. B. Brown for the plaintiff in error.

Mr. C. A. Kent, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Hill v. Thompson


text: Talk:Hill v. Thompson

title: Talk:Hill v. Thompson


text:
Hill v. Thompson/Opinion of the Court

The first question presented in this case is one of jurisdiction. In Sandusky v. National Bank, 23 Wall. 289, we decided that an adjudication of bankruptcy, without a trial by jury, could not be brought here for re-examination by appeal, as the Circuit Court could only review such a proceeding under its supervisory jurisdiction where its action was final. It only remains to consider, therefore, whether a different rule must be applied when the adjudication is after a trial by jury.

The reason why we cannot review the action of the Circuit Courts in the exercise of their supervisory jurisdiction under the bankrupt law, is, as we have already said at the present term, in Wiswall et al. v. Campbell et al., Assignees, 93 U.S. 347, 'that a proceeding in bankruptcy, from its commencement to its close upon the final settlement of the estate, is but one suit. The several motions made and acts done in the bankrupt court in the progress of the cause are not distinct suits at law or in equity, but parts of one suit in bankruptcy, from which they cannot be separated. As our jurisdiction extends only to a re-examination of final judgments or decrees in suits at law or in equity, it follows that we have no control over judgments and orders made by the courts below in mere bankruptcy proceedings.'

Going, then, to the bankrupt law, we find, Rev. Stat., sect. 5026, that in cases of involuntary bankruptcy 'the court shall proceed summarily to hear the allegations of the petitioner and the debtor;' or 'shall, if the debtor. . . so demands, in writing, order a trial by jury at the first term of the court at which a jury shall be in attendance, to ascertain the fact of the alleged bankruptcy.' And, also, that 'if upon the hearing or trial, the facts set forth in the petition are found to be true,. . . the court shall adjudge the debtor to be a bankrupt.' Sect. 5028. From this it is clear that the trial by jury is as much before the court 'when sitting as a court of bankruptcy,' and as much a part of the suit in bankruptcy, as the summary hearing by the court is when a jury shall not be demanded.

The supervisory jurisdiction of the Circuit Court extends to all cases and questions arising in the District Court when sitting as a court of bankruptcy, and it follows that our jurisdiction is excluded over all such questions and cases. In Insurance Company v. Comstock, 16 Wall. 258, we held that a writ of error was the 'proper process' for the Circuit Court to employ in bringing up for re-examination under its supervisory jurisdiction the questions arising upon a jury trial provided for in sect. 5026; but that does not reach the question here involved, which is, whether the judgment of the Circuit Court in such a proceeding is a final judgment in a civil action. If it is not, we have no power of review, because only such judgments of that court can be re-examined h re. Rev. Stat., sect. 691. We think it is not; and, as the general subject has been so recently before us in Wiswall et al. v. Campbell et al., Assignee, we content ourselves with a reference in support of this conclusion to the opinion in that case, following, as it does, that in Sandusky v. National Bank, supra.

Writ of error dismissed for want of jurisdiction.

title: Hill v. Thompson/Opinion of the Court


text: Talk:Hill v. Thompson/Opinion of the Court


text: Barney v. Keokuk

title: Barney v. Keokuk


text: Talk:Barney v. Keokuk

title: Talk:Barney v. Keokuk


text:
Barney v. Keokuk/Opinion of the Court

ERROR to the Circuit Court of the United States for the District of Iowa.

This was an action of ejectment brought by the plaintiff against the city of Keokuk and several railroad companies and a steam-packet company, to recover the possession of certain premises occupied by them with railroad tracks, buildings, and sheds on the bank of the Mississippi River, in the city aforesaid. The plaintiff, in his petition, described the premises as follows: 'All the land lying and being in front of lots 5 and 6, in block 3, in the city of Keokuk, Lee County, Iowa, and extending from the front line of said lots to the Mississippi River the full width of said lots.' The petitioner states that he is the owner in fee-simple of the premises, subject only to the right of the public to use that part of them embraced within the limits of Water Street as a public highway, and is entitled to possession as against the defendants, that the city of Keokuk claims to be the proprietor, and the other defendants occupy as its tenants.

The city, by its answer, admitting that the plaintiff is owner of lots 5 and 6, in block 3, states, in substance, that all the land in front of them down to the Mississippi River was in 1840 dedicated to public use as a street and levee, and, as such, has been used and improved ever since under the possession and control of the city, by virtue of its charter, and has, at its expense, been extended out about two hundred and fifty feet by depositing earth and stone in the river, in order to make the wharf and levee more convenient, safe, and useful. Other defences were interposed, which it is not necessary to specify.

The other defendants claim under authority of the city.

The cause was tried by the court, and a special finding of the facts and the law was made.

From these findings, it appears that the city of Keokuk is situated upon a tract of land lying between the Mississippi and the Des Moines Rivers, in Lee County, Iowa, known as the 'Half-breed Sac and Fox reservation,' which, by treaty with the Sac and Fox tribes of Aug. 4, 1824, 7 Stat. 229, was granted to the half-breeds of those tribes, to be by them held in the same manner as other Indian titles are held. The fee, with power of alienation, was subsequently vested in them. Numerous parties became interested in the tract by purchase, and a town was laid out and lots sold as early as 1837; but no regular town plat, having the requisites of the town-plat law of 1839, seems to have been filed or recorded in the recorder's office of the county. One Galland, who seems to have been a part owner, made out such a plat, and filed it; but there is no proof that he had authority for his acts from the other proprietors. In 1840, suit for a partition of the tract was commenced, and regular proceedings were had, resulting, in October, 1841, in a final decree of partition, made according to the report of commissioners, and embodying a plat or map of the town of Keokuk. Said lots 5 and 6, in block 3, are exhibited on this map, and were drawn by the parties under whom the plaintiff claims title. In its findings of fact, the court sets forth portions of the decree, and, amongst other things, the following:--

'In describing each of said shares, the commissioners appointed by the court say, among other things: 'The lots upon Water Street include all the land in front of them to the Mississippi River.'

'And, after describing all the shares, they say:--

"In describing the boundary of the town-lots situated on Water Street in the towns of Keokuk and Nashville, we have made them t include all the land in front of them to the Mississippi River, by which we mean in front of them, facing the river, parallel with the streets running from Fourteenth Street to Water Street.'

'And in describing the plat of Keokuk, the commissioners' report, among other things, says:--

"Plat of Keokuk, in the county of Lee, Territory of Iowa, upon the half-breed tract, the outlines of which were designated and marked by Jenefer T. Spring in his survey as town reservation, . . . Water Street is of unequal and irregular width at the points where the dotted lines pass across the same.

"The street is of the width in feet as is represented by the figures set on said lines.' 'Water Street extends the whole front on river side of the town, or from the intersection of Orleans Street with the Mississippi River, down the right bank of the river, with the meanders thereof, to the intersection of Cedar Street with the Mississippi River."

The Galland map was produced on the trial, also a fragment of another map, which bears date August, 1840, found in the recorder's office. By these, as well as the map embodied in the decree, the space between the front of the lots and the river is designated as Water Street, and appears to have been, at that time, about one hundred feet wide.

As to the occupation of Water Street in front of the plaintiff's lots, and its extension on the river side, the court found:--

'The city of Keokuk has, since the year 1865, caused the space originally covered by water on the river side of Water Street, in front of said lots, to be filled in with earth and stone for a space of over two hundred feet beyond the original water-line to ordinary high-water mark, and about three hundred and fifty-two feet to low-water mark, said filling having been done by said city. That part of the space between the front of said lots and the river at ordinary high-water mark is occupied as follows:--

'1. By the freight-house or depot of the defendant, the Keokuk and Des Moines Railway Company,. . . a permanent and substantial frame building. It has been standing a good many years,. . . is used for storing freight by said railroad company, is two hundred and three feet long and twenty feet wide, and one story high, and covers the whole of the front of said lots 5 and 6, block 3.

'2. By the railroad tracks used by the defendants, the Keokuk and Des Moines Railway Company, the Mississippi Valley and Western Railway Company (now St. Louis, Keokuk, and North-western Railway Company), the Toledo, Peoria, & Warsaw Railway Company, and the Toledo, Wabash, and Western Railway Company. Altogether there are ten railroad tracks between the front of said lots and high-water mark.

'3. By the building known as the Keokuk Northern Line Packet depot,. . . a permanent and substantial building, one hundred feet long and fifty feet wide, formed of substantial timbers, and about fourteen or fifteen feet high. It was built by said packet company for its own use in carrying on its business as a common carrier by steamboats on the Mississippi River, and is used by it in connection with its transportation business for the temporary storage of freight carried or to be carried by said company, and also for the business offices of said company at Keokuk. Said building has five large doors through which teams are driven in delivering or receiving freight, and which doors are closed at night. The building is one and a half stories high, with office rooms on second floor, and the ground-floor is of heavy two-inch lumber laid on sills about two feet apart.'

The map shows that this building stands on the newly made ground below original high water.

The court further found:--

'That none of the defendants so occupying said ground, nor the city, has caused any condemnation, nor asked or obtained the permission of plaintiff, nor paid him any damages in compensation for the use of said ground. But they all and severally hold the same under the license or permission of the city of Keokuk only.'

As conclusions of law under the foregoing facts, the court found:--

'1. There was no completed statutory dedication of Water Street under the town-plat act of 1839 prior to the decree of partition, for the reason, among others, that all of the proprietors, i.e., the half-breed owners and their grantees, did not join in making a plat, or in selling lots according to the Galland or other plat. What was done prior to the decree was at most a common-law dedication by those who platted or recognized the plat, and it was therefore competent for the decree of partition to provide, as it did, 'that the lots on Water Street should include all the land in front of the lots to the Mississippi River."

This leaves the fee of the land constituting Water Street in the plaintiff, subject to the rights of the public.

'2. The additional ground made by filling in Water Street outside of the original water-line partakes of the same character as the original street. The fee of the newly made ground in front of the plaintiff's lots is in the plaintiff, but it is subject to the same public uses as the original street.

'3. Under the law of Iowa, as construed by the Supreme Court of the State, railroad companies, certainly, with the assent of the municipal authorities, have the right to lay down their tracks in the streets of a city, whether they were dedicated under the statute or as at common law; that is, whether the fee is in the city or in the adjoining proprietor.

'4. This, however, does not give the railway company, even with the assent of the municipality, the right to erect a permanent and substantial depot-building in the street.

'5. In view of the location and situation of Water Street and the presumed intention of the dedication thereof to the public, and guided by the view of the Supreme Court of the State in this regard in Haight v. The City of Keokuk, and the power of the city as to wharves, and the use of Water Street for that purpose, given to the city of Keokuk by the act of the legislature of 1853, Water Street may be used for levee and wharf purposes under municipal management and control.

'The building erected by the packet company under the contract with the city, of March 28, 1870, for the purposes therein mentioned, for the receipt and temporary shelter and storage of goods, &c., subject to municipal control, is a reasonable use of Water Street as a wharf or levee as incidental to the requirements of navigation and shipping, and does not infringe the plaintiff's rights.'

The provisions of the charter of the city of Keokuk, which bear upon the case, are set out in the opinion of the court.

There was a judgment for the defendants, and the plaintiff sued out this writ of error.

Mr. George W. McCrary for the plaintiff in error.

The plaintiff is, by the decision of the court below, the owner in fee of Water Street and the ground in front of it, and they could not, without his consent and without compensation, be taken and devoted by the city to the use of railroad companies, to be covered with tracks for the passage of engines and cars. Railroad Company v. Schurmeir, 7 Wall. 272.

Even if the fee was vested in the city, the latter could not appropriate it to any use or purpose which would depreciate the value of the premises of an adjoining owner. Railroad Company v. Schurmeir, supra; 1 Redfield on Railways, sect. 8, p. 312; Dillon on Mun. Corp., sects. 558, 576.

The legislature cannot authorize the appropriation of a street for railroad purposes, without compensation to the owner of the fee. Wagner v. Troy Union Railroad Co., 25 N. Y. 526; 16 id. 97; 24 id. 655, 658; Bolling v. City of Petersburg, 3 Rand. (Va.) 563; 13 Conn. 309; 3 id. 90; 5 id. 305; Imlay v. Union Branch Railroad Co., 26 Conn. 255; Ford v. Chicago & N. W. Railroad Co., 14 Wis. 616; Pomeroy v. C. & M. Railroad Co., 16 id. 640; Perley v. Chandler, 6 Mass. 453; 21 Wis. 602; 14 id. 609; Coole on Const. Lim., pp. 546 et seq., 548 and note 2; Dillon on Mun. Corp., sects. 558 and note, 573 and note, 575-577; Redfield on Railways, pp. 299 and note, 309, 311; 14 Ohio St. 548; 7 id. 459; 7 Ind. 479; Haynes v. Thomas, 3 Hill, 567; Mahin v. Railroad Company, 24 N. Y. 658; Bissel v. Railroad Company, 23 id. 61; Clark v. Blackmas, 47 id. 150; s. p. Railroad Company v. Reed, 41 Cal. 256; Harrington v. Railroad Company, 17 Minn. 215-224; Gray v. Railroad Company, 13 id. 315; Williams v. Plank-road Company, 21 Mo. 580; Fletcher v. Railroad Company, 25 Wend. (N. Y.) 462.

In this case there is no pretence of express legislative authority, and the only question is, whether, under a power to regulate streets, the city may, against the objection of the owner of the fee, authorize their use for this purpose. The following authorities hold that the city has no such power: Wagner v. Troy Union Railroad Co., 25 N. Y. 526; Williams v. N. Y. Central Railroad, 16 id. 97; Presbyterian Society of Waterloo v. Auburn Railroad Co., 3 Hill (N. Y.), 567; Lade v. Sheppard, 2 Str. 1004; Inhabitants of Springfield v. Conn. River Railroad Co., 4 Cush. (Mass.) 63; Ford v. Chicago & N. W. Railroad Co., 14 Wis. 663; Weisbold v. Chicago & N. W. Railroad Co., 21 id. 602; Lackland v. North No. Railroad Co., 31 Mo. 180; Craig v. ''Rochester City & Br. Railway'', 39 Barb. (N. Y) 494; Warren v. State, 5 Dutch. (N. J.) 393; Veazie v. Penobscot Railroad Co., 49 Me. 119; Brown v. Duplessis, 14 La. Ann. 842; Pomeroy v. Mills, 3 Vt. 279; Dillon on Mun. Corp., sects. 521, 558; Flemingsburg v. Wilson, 1 Bush (Ky.), 203; State v. Railroad Company, 3 Zabr. (N. J.) 360.

It has never been held by the Supreme Court of Iowa that any statute of that State authorizes a municipal corporation to devote one of its streets to the use of a railroad company for laying its tracks and operating its road thereon, without the consent of the owner of the fee, and without compensation where that owner is a private person. The cases of Milburn v. Cedar Rapids, 12 Iowa, 246; Clinton v. ''Cedar Rapids & Mo. Railroad Co.'', 24 id. 455; Slatten v. Railroad Co., 29 id. 148; Cook v. City of Burlington, 30 id. 94; City of Davenport v. Stevenson, 34 id. 225; Ingraham v. Railroad Company, id. 249; Cook v. City of Burlington, 36 id. 357; ''Chicago, &c. Railroad Co. v. Mayor of Newton'', id. 299, relied upon by the court below in support of its decision, do not sustain the converse of this proposition.

The decree in the partition suit passed in 1841 vested the fee of the ground between the lots on Water Street and the Mississippi River in the owners of said lots. Haight v. The City of Keokuk, 4 Iowa, 199; Milburn v. Cedar Rapids, supra.

The ground in front of plaintiff's lots, in so far as it was ever dedicated to any public use, was dedicated as 'Water Street,' and this would not authorize its use for levee and wharf purposes. Pearsoll v. Post, 20 Wend. (N. Y.) 131; Same v. Same, 22 id. 425; Prosser v. Wapello County, 18 Iowa, 338; Prosser v. Davis, id. 367; Railroad Company v. Shurmeir, 7 Wall. 289; Pipkin v. Wynus, 2 Dev. (N. C.) L. 402, 404; State v. Wilson, 42 Me. 27; Chicago v. Lafflin, 49 Ill. 172; Eisminger v. The People, 47 id. 384; Wetmore v. Gas-Light Co., 42 N. Y. 384; Denton v. Polk County, 9 Iowa, 596; Trustees v. Railroad Company, 3 Hill (N. Y.), 569; Cartelyou v. Van Brundt, 2 Johns. (N. Y.) 356.

The decision of the court below, so far as it is adverse to the plaintiff, ignores, and in effect destroys, his rights and property as a riparian proprietor. Dutton v. Strong, 1 Black, 1; Yates v. Milwaukee, 10 Wall. 497; Angell on Tide-Waters, p. 171; Kraut v. Crawfor, 18 Iowa, 553.

The authorities cited by the defendants' counsel to show that the title to the bed of the Mississippi is in the State do not sustain his proposition, that where the bank is extended by either natural or artificial means, so as to raise the bed of the river and make it dry land, it still remains the property of the State. He does not attempt to maintain by any authority that such made land may, by the State or city, be conveyed to private persons for their exclusive use, thus destroying the riparian rights of individuals. When the original bank of the river is filled in, the made ground partakes, not of the nature of the bed of the stream, but of the shore to which it is added. The moment the land was filled in, by whomsoever done, it became the plaintiff's. Nichols v. Lewis, 15 Conn. 137; New Orleans v. United States, 10 Pet. 622; 12 Curtis, 299. Atlee v. Packet Company, 21 Wall. 389, is in perfect harmony with this doctrine. The question there was not whether Atlee could be cut off from the navigable channel and his river-front by filling in, as in the case at bar, but whether, without license or authority, except such as arose from his ownership of the adjacent shore, he could lawfully build a pier in that channel.

Much of the argument on the other side may be answered by the simple suggestion that the plaintiff is not suing for the bed of the river, but for high and dry land, occupied by railroad tracks and buildings. Counsel seems to realize this, for in his brief there is no attempt to answer the conclusive suggestion of the court below, that 'the additional ground made by filling in Water Street, outside of the original water-line, partakes of the same character as the original street.'

Counsel insists upon the power given to the city of Keokuk by its charter to construct a wharf, and to use Water Street for that purpose, but omits to state the important fact that this authority was coupled with an explicit provision that just compensation should be made for private property taken for this purpose. As the charter makes this requirement, there is no foundation for the claim that it authorized the city to take the plaintiff's property without compensation.

Mr. Robert G. Ingersoll for the defendants in error.

By the dedication of Water Street, the legal title to the demanded premises was vested in the city, and not in the adjacent lot-owners. Hall v. The City of Des Moines, supra; Milburn v. Cedar Rapids, 12 Iowa, 249; Fulton v. City of Davenport, 17 id. 408; Yast v. Leonard, 34 id. 15; Jackson v. Hathaway, 15 Johns. (N. Y.) 448; Tyler v. Hammon, 11 Pick. (Mass.) 193; O'Lindar v. Lathrop, 21 id. 292; Gebhardt v. Reeves, 75 Ill. 304. The plaintiff, as the pretended owner of the street, has, therefore, no right to the possession, or to damages. But, if he were the owner, the use of the street for a purpose not intended by the original dedication would not entitle him to recover. Warren v. The Mayor of Lyons City, 22 Iowa, 351; Cook et al. v. The City of Burlington, 30 id. 94; Pettingill v. Devin, 35 id. 355; Carpenter v. Mooers, 26 Ill. 162; Alvis et al. v. Morrison et al., 63 id. 182.

Plaintiff claims the fee of the made land, on the ground of alleged riparian proprietorship. The Mississippi was, by law, a public highway. The treaty of 1824 with the Sacs and Foxes, reserved the tract whereon Keokuk is situate for the use of the half-breeds, to be held as other Indian titles. In 1832, the Indian right was extinguished. In 1834, the United States vested the fee of the tract in the half-breeds; but no title to the land below high-water mark was conveyed to them. The United States did not own the bed of the river, but, claiming and possessing jurisdiction and sovereignty over that region of country, established, by an act of March 3, 1839, the eastern boundary of the Territory of Iowa as 'the middle of the c annel of the Mississippi River.' When the State was admitted, the same boundary was recognized. It follows that her right to all the land beneath high-water mark was not affected by the grant to the half-breeds, and is as full and complete in front of the site of the city of Keokuk as at any other point on the eastern boundary of the State.

By the American Revolution, the people of each State, in their sovereign character, acquired the absolute right to all their navigable waters and the soil under them. That right was not granted by the Constitution to the United States, but was reserved to the States respectively. And new States have the same right of sovereignty and jurisdiction over the navigable waters within their limits as the original ones. Martin v. Waddle, 16 Pet. 367; Goodtitle v. Kibbe, 9 How. 471; Pollard's Lessee v. Hogan et al., 3 id. 212; Pollard v. Kibbe, 14 Pet. 353; Withers v. Buckley, 20 How. 84; County of St. Clair v. Lovingston, 23 Wall. 46; Attorney-General v. City of Eau Claire et al., 37 Wis. 447.

The State, having the complete and absolute right of property from high-water mark to the middle of the channel of the river, holds it for public uses, subject only to the power of Congress to regulate commerce among the several States and with foreign nations. McManus v. Carmichael, 3 Iowa, 57, and cases there cited; Haight v. The City of Keokuk, 4 id. 213; Prosser v. Davis, 18 id. 371.

The city, when it was organized, had its eastern boundary at low-water mark, and became the riparian proprietor of the soil in front of Water Street. The State conferred upon it the right to control the wharf privileges and the landing of boats there, but retained, and still retains, in trust for the public at large, the title to the land underneath the channel of the river.

As the Mississippi is navigable, it follows that the rule in regard to the ownership of the bed of navigable waters governs this case. La Plaisance Bay Harbor Co. v. City of Monroe, Walk. Ch. 168; Carson v. Blazer, 2 Binn. (Pa.) 475; Rundle v. ''Del. & Raritan Canal Co.'', 14 How. 80; Commonwealth v. Alger, 7 Cush. (Mass.) 94.

The plaintiff, having no grant from the State, acquired in the soil of the river and its banks no jus privatum, and none of the riparian rights arising therefrom. Atlee v. Packet Company, 21 Wall. 389, recognizes the distinction between jus publicum and jus privatum. While affirming the right of cities and towns to build wharves and project piers into navigable rivers, it declares that a riparian proprietor can exercise such a right only when it has been conferred upon him by express legislative authority. This doctrine is based on the familiar principle that the State, as the absolute owner of the navigable waters within its borders, can dispose of them to the exclusion of riparian owners. People v. Tibbetts, 19 N. Y. 523; People v. Canal Appraisers, 33 id. 487; Mumford v. Wardwell, 6 Wall. 436; Angell on Tide-Waters, 199; Hudson River Railroad Co. v. Loeb, 7 Robt. (N. Y.) 418.

As the grantors of the plaintiff were never proprietors of the land to the margin of the river, no question of accretions by either alluvion or artificial means can arise. Bates v. Illinois Central Railroad Co., 1 Black, 204; Johnston v. Jones et al., id. 209; In re Hull & Selby Railway Co., 5 M. & W. 327; Kraut v. Crawford, 18 Iowa, 551; Cook v. The City of Burlington, 30 id. 97.

The right of the State, or the city as its authorized agent, to appropriate the lands between high and low water mark for railway tracks, without compensation to the plaintiff, can hardly be considered an open question. Gould v. Hudson River Railroad Co., 12 Barb. 628; Getty v. Same, 21 id. 628; Gould v. Same, 6 N. Y. 543; ''Illinois, &c. Canal Co. v. St. Louis'', 2 Dill. 78; Railroad Company v. Stevens, 10 Am. Law Reg. 168; Pennsylvania Railroad Co. v. New York & Long Branch Railroad Co., 23 N. J. Eq. 159.

The plaintiff assuming that the track of a railroad is an additional burden, not contemplated in the original dedication, insists that the railroad companies have no right to lay their tracks upon Water Street, without compensation to the adjoining lot-owners. This is not true, whether the fee of the street is in the corporation, or in him. The use of streets is in the public, no matter who holds the fee, and a railroad, being an improved highway, is within the scope of the public purposes for which they were laid out. In Iowa, the lot-owner has no exclusive right to use them. The city is responsible for the condition of the sidewalks, because they are under its control as part of the streets. It can use the entire surface of the street, pave, curb, gutter, build sewers, lay water and gas pipes, permit the erection of telegraph poles and the construction of horse railways. The running of a railway car, whether propelled by horse or steam power, is not a permanent obstruction of the street. The track itself, when laid down by the railroad companies, under the direction of the proper authorities, and properly planked or paved, so as not to obstruct materially the passage of persons and vehicles over it, is not a burden for which compensation should be claimed. If it was so considered, a city having the fee of streets would be entitled to compensation for laying such tracks without its consent. But in Iowa, where it holds the naked title for public use, no such right accrues. So with the abutting lot-owner, in case of a common-law dedication. The use of a street for railway tracks makes no change in the title. Only a license or an easement is secured, which is no more a nuisance or a purpresture to him, than the laying of gas-pipes or the building of sewers.

The State has, by statute, given to railway companies the right to run upon highways and across streams, and subjected lands used for public purposes to the easement of railway tracks. In such cases the fee abides in the owner, whereas, in condemnation, he is divested of his title, and the public or the State takes his entire interest. We insist, therefore, that an individual has no right to compensation for such use of the street as in this instance the municipality has authorized. If he has sustained some special damage, he can recover for it, but for none other. Ingram et al. v. C. D. & M. Railroad Co., 38 Iowa, 675; Gear v. The C. C. & D. M. Railroad Co., 39 id. 25; Casby v. Owensboro' & Russellville Railroad Co., 10 Bush (Ky.), 291; Tompkins v. Hodgson et al., 2 Hun (N. Y.), 148; Warren v. Grand Haven, 30 Mich. 28; Chicago, Rock Island, & Pacific Railroad Co. v. City of Joliet, 2 West. Jurist, 667.

MR. JUSTICE BRADLEY, after stating the case, delivered the opinion of the court.

We agree with the court below that the dedication of the streets of Keokuk was a dedication at common law, and not under the statute; and that, in making this dedication, the original proprietors of the tract reserved the title to the soil in the street, particularly in Water Street; and that this title went with the several lots fronting on the street, and extended to the Mississippi River. Whether, under the laws of Iowa, it also attached to the new ground formed by filling in upon the bed of the river is not so clear. It appears to be the settled law of that State that the title of the riparian proprietors on the banks of the Mississippi extends only to ordinary high-water mark, and that the shore between high and low water mark, as well as the bed of the river, belongs to the State. This is also the common law with regard to navigable waters; although, in England, no waters are deemed navigable except those in which the tide ebbs and flows. In this country, as a general thing, all waters are deemed navigable which are really so; and especially it is true with regard to the Mississippi and its rincipal branches. The question as to the extent of the riparian title was elaborately discussed in the case of McManus v. Carmichael, 3 Iowa, 1. The above conclusion was reached, and has always been adhered to in that State. Haight v. The City of Keokuk, 4 Iowa, 199; Tomlin v. Dubuque, & c. Railroad Co., 32 id. 106.

The peculiar origin of the title to the 'Half-breed Sac and Fox reservation,' in the peninsula lying between the rivers Mississippi and Des Moines, did not take it out of the general rule. This was so held in Haight v. The City of Keokuk, supra. That case was nearly identical with the present as respects the claim of the adjoining proprietor to the title of the land in Water Street and on the river bank. Haight contested the right of the city to control the wharf along said street, claiming, by virtue of his fee-simple title, the right to erect a private wharf and to receive the emoluments thereof. His claim was overruled, and on the question of title the court said:--

'According to the case of McManus v. Carmichael, then, Haight owns the soil to high water only. But here is interposed the argument, that this land is not held under the United States by the usual manner of grants, that is, by patent, after a survey, and described by section, town, and range. This is true; but yet it will not affect the extent of the complainant's right. The grant to the half-breeds was to them as persons and not as a political body. The political jurisdiction remained in the United States. Had the grant been to them as a political society, it would have been a question of boundary between nations or States, and then the line would have been the medium filum aquae, as it is now between Iowa and Illinois. . . . The grant was to them as individuals,-as tenants in common,-and is to be construed as any other grant or sale to individuals.'

The court then goes on to refer to various cases to show that the government cannot convey the land between high and low water on the public or navigable rivers, but that this space belongs to the State; citing Mayor of Mobile v. Eslava, 9 Port. 578; 16 Pet. 234; Pollard's Lessee v. Hagan, 3 How. 212.

It is generally conceded that the riparian title attaches to subsequent accretions to the land effected by the gradual and imperceptible operation of natural causes. But whether it attaches to land reclaimed by artificial means from the bed of the river, or to sudden accretions produced by unusual floods, is a question which each State decides for itself. By the common law, as before remarked, such additions to the land on navigable waters belong to the crown; but as the only waters recognized in England as navigable were tide-waters, the rule was often expressed as applicable to tide-waters only, although the reason of the rule would equally apply to navigable waters above the flow of the tide; that reason being, that the public authorities ought to have entire control of the great passageways of commerce and navigation, to be exercised for the public advantage and convenience. The confusion of navigable with tide water, found in the monuments of the common law, long prevailed in this country, notwithstanding the broad differences existing between the extent and topography of the British island and that of the American continent. It had the influence for two generations of excluding the admiralty jurisdiction from our great rivers and inland seas; and under the like influence it laid the foundation in many States of doctrines with regard to the ownership of the soil in navigable waters above tide-water at variance with sound principles of public policy. Whether, as rules of property, it would now be safe to change these doctrines where they have been applied, as before remarked, is for the several States themselves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections. In our vie of the subject the correct principles were laid down in Martin v. Waddell, 16 Pet. 367, Pollard's Lessee v. Hagan, 3 How. 212, and Goodtitle v. Kibbe, 9 id. 471. These cases related to tide-water, it is true; but they enunciate principles which are equally applicable to all navigable waters. And since this court, in the case of The Genesee Chief, 12 id. 443, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly belongs to the States by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water. The cases in which this court has seemed to hold a contrary view depended, as most cases must depend, on the local laws of the States in which the lands were situated. In Iowa, as before stated, the more correct rule seems to have been adopted after a most elaborate investigation of the subject.

The exhaustive examination of this question by the Supreme Court of Iowa in 1856, in the case of McManus v. Carmichael, 3 Iowa, 1, really leaves nothing to be said. The precise point was directly before the court,-namely, whether the title of the riparian proprietor extends below high water, in the Mississippi River; and it was decided that it does not. This decision has been followed by subsequent cases, especially the cases of Haight v. The City of Keokuk, 4 id. 199; and Tomlin v. Dubuque Railroad Co., 32 id. 106.

But whatever may be the true rule on this vexed question, and whether we rightly comprehend the Iowa decisions or not, we have no doubt that the city authorities of Keokuk, representing the public, had the right to widen and improve Water Street to any extent on the river side, by filling in below high water, and building wharves and levees for the public accommodation. By the charter of the city, passed Dec. 13, 1848, it was provided,--

'SECT. 14. That the city council shall have power. . . to establish and constitute landing-places, wharves, docks, and basins in said city, at or on any of the city property, and fix the rates of landing, wharfage, and dockage of all steamboats, boats, rafts, and other water-crafts, and of all goods, wares, merchandise, produce, and other articles that may be moored at, landed on, or taken from any landing, wharf, dock, or basin belonging to said city.'

'SECT. 16. That the city council shall have power. . . to license and establish ferries across the Mississippi River from said city to the opposite shore, to fix the rates of the same.'. ..

'SECT. 22. The city council shall have exclusive power to establish and regulate the grade of wharves, streets, and banks along the Mississippi River, within the corporate limits of said city.'

And by a supplement, passed Jan. 22, 1853, it was provided,--

'SECT. 7. The said city of Keokuk shall have the power to establish and regulate wharf or wharves in said city, and more particularly to use the whole of Water Street for said purpose.'. ..

Although it should be conceded that the title of the plaintiff attached to the ground reclaimed and filled in by the city outside of the original high water, it was a bare legal title, subject to the public easement and use, not only for street purposes, but for the purposes of wharves, landings, and levees. A street bordering on the river, as this did, according to the plan of the town adopted by the decree of partition, must be regarded as intended to be used for the purposes of access to the river, and the usual accommodations of navigation in such a connection. This subject is discussed in Haight's case, where the court said,--

'One further thought, presented by the petit oner, should be noticed. It is, that if this ground is dedicated to the public, it is as a street only; and that if his rights are subject to the public uses, they are so subject to the use of it only as a street or highway, and not as a wharf, and that it is named and called a street and not a wharf. He claims that the object of a street is for passage, for travelling over, and not to land or deposit goods upon. This is taking a very narrow and close view. The streets of a town are fairly subject to many purposes to which a highway in the country would not be. More regard should be paid to the object and purpose than to the name. The ways of a town would be of comparatively little use if the citizens and traders could not deposit their goods in them temporarily, in their transit to the storehouse; and so of other things, and so it is of the wharf. If goods cannot be deposited upon it in preparation for shipping them, or unladen upon it from boats and vessels, why is a town located near the river upon land which, in other respects, is inconvenient, and is expensive to grade, to bring into form and order, and to keep in repair, instead of upon an even prairie, requiring no such trouble and outlay?'

On the general question as to the rights of the public in a city street, we cannot see any material difference in principle with regard to the extent of those rights, whether the fee is in the public or in the adjacent land-owner, or in some third person. In either case, the street is legally open and free for the public passage, and for such other public uses as are necessary in a city, and do not prevent its use as a thoroughfare, such as the laying of water-pipes, gas-pipes, and the like; and, according to the laws of Iowa (which must be taken to govern the case), it may be occupied by those improved iron ways for public passage which modern skill has devised, and which the advance of general improvement requires. It cannot be denied that horse-railroads have contributed immensely to the public convenience in furnishing a rapid, cheap, and convenient means of communication between different parts of large towns, and have greatly promoted their increase and growth in wealth and population. By the accommodation which they afford, the citizen can reside miles from his shop or place of business. Though attended with some inconveniences, they have greatly added to the efficiency of the public thoroughfares, and have more than doubled their capacity for travel and transportation.

So other railways coming to cities add greatly to their population and wealth, and furnish greatly increased facilities of communication with other portions of the country.

In Iowa, by the act called the 'Right of Way Act,' found in the Code of 1851, sect. 735, it is declared that,--

'The county court may also grant licenses for the construction of any canal or railroad, or any macadamized or plank-road, or any other improvement of a similar character, or any telegraph line, to keep the same up for a period not exceeding fifty years, and to use for this purpose any portion of the public highway or other property, public or private, if necessary: Provided, such use shall not obstruct the highway.' Iowa Revision of 1860, p. 206.

By the construction given to this act by the Supreme Court of the State, railroads, especially when located and constructed under municipal regulation and control, are not regarded as obstructions to a highway in the legal sense, nor as creating, when laid thereon, any injury to the proprietors of the adjacent lands, for which they are entitled to compensation. The cases referred to by the Circuit Court (which are given below) abundantly demonstrate this conclusion, and no elaborate discussion of the subject is required from us. See Milburn v. Cedar Rapids, 12 Iowa, 249-260; Clinton v. ''Cedar Rapids & Mo. Railroad Co.'', 24 id. 455; Tomlin v. Dubuque Railroad Co., 32 id. 106; Chicago, Newton, & S. W. Railroad Co., 36 id. 299; Cook v. City of Burlington, id. 357; linton v. Clinton & Lyon Railroad Co., 37 id. 61; Ingraham et al. v. Chicago, Dubuque, & Minn. Railroad Co., 38 id. 669.

The cases cited, it is true, are generally those in which the fee of the streets was in the cities respectively, as is commonly the case in Iowa. But in Haight's case, in 4 Iowa, the very street now in question was under consideration, and the plaintiff had the same title as that of the plaintiff in the present case; and the principles laid down in all the later cases apply as well where the title of the soil is in the adjacent proprietor as where it is in the city or a third party. And, as before remarked, we can perceive no well-founded difference in principle between the one and the other as to the rights of the public.

The Circuit Court is clearly correct, however, in holding that the construction of a permanent freight depot in Water Street was an unauthorized and improper occupation of that street. It was a total obstruction of the passage; and this, as we have said, cannot be created or allowed. It is subversive of, and totally repugnant to, the dedication of the street, as well as to the rights of the public.

We also concur in the view taken by the Circuit Court as to the reasonableness of the erection of the packet depot in the place where it is located. It is a necessary adjunct to the steamboat landing, and the use of the wharf and levee for the purposes of navigation, and does not occupy any portion of the original street. It is a public use of the river bank, which is absolutely necessary to the use of the river as a navigable water. The erection of levees, wharves, and other accommodations on the very ground appropriated to such purposes by the original plot of the town, or, stronger still, on ground made and reclaimed from the bed of the river adjoining the street thus appropriated, and in enlargement thereof, is clearly within the powers of the city authorities as laid down in the cases referred to.

Judgment affirmed.

MR. JUSTICE MILLER did not sit in the case, nor take any part in deciding it.

title: Barney v. Keokuk/Opinion of the Court


text: Talk:Barney v. Keokuk/Opinion of the Court


text:
First National Bank of Washington v. Whitman

ERROR to the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Argued by Mr. A. G. Riddle and Mr. F. Miller for the plaintiff in error, and by Mr. S. Shellabarger and Mr. J. Daniels for the defendant in error.

Mr. JUSTICE HUNT delivered the opinion of the Court.


text: Talk:First National Bank of Washington v. Whitman


text:
First National Bank of Washington v. Whitman/Opinion of the Court

This action is brought against the First National Bank of Washington to recover the amount of a check drawn upon it by Mr. Spinner, Treasurer of the United States, for $3,414, dated March 9, 1867. The check is in this form, viz.:--

'Draft No. 9,243 on War Warrant No. 915.

'$3,414.] TREASURY OF THE UNITED STATES,

'WASHINGTON, March 9, 1867.

'Pay to the order of Mrs. E. S. Kimbro, three thousand three hundred and fourteen dollars. No. 9,243. Registered March 9, 1867.

'Issued on requisition No. ___. $3,414.

'S. B. COLBY,

'Register of the Treasury.

'F. E. SPINNER,

'Treasurer of the United States.

'To the First National Bank of Washington, D. C.' It was indorsed in the name of Mrs. Kimbro without authority, and the amount of it was paid by the bank to an unauthorized holder. It appears from the testimony of Mr. Tayler, first comptroller of the treasury, that the funds of the government deposited by the Treasurer in a national bank are treated by the government, for the purposes of keeping accounts, as in the Treasurer's own charge and custody; that they are charged to him, and that payments made are credited to him, and that he is chargeable precisely as if the funds had been in his own office, and that he had power to make the check in question.

We may, therefore, simplify the case by eliminating from its consideration all reference to the United States, and consider the transaction as between Mr. Spinner, as an in ividual, and the bank, as his depositary, and Mrs. Kimbro, as the payee of his check.

The question is this: Can the payee of a check, whose indorsement has been forged or made without authority, and when payment has been made by the bank on which it was drawn, upon such unauthorized indorsement, maintain a suit against the bank to recover the amount of the check? We think it is clear, both upon principle and authority, that the payee of a check unaccepted cannot maintain an action upon it against the bank on which it is drawn. The careful and well-reasoned opinion of Mr. Justice Davis in delivering the judgment of this court in Bank of the Republic v. Millard, 10 Wall. 152, leaves little to add upon this subject by way of illustration or authority. In that case a paymaster of the army made his check on the Bank of the Republic to the order of Captain Millard for $859, due to him for arrears of pay as an officer of the army. The bank paid the amount of the check upon a forged indorsement of Millard's name. Recovering the check and exposing the forgery, Millard demanded payment to himself, and, upon refusal, brought his action against the bank. This court held that the action could not be maintained, upon the principle that there was no privity between the bank and Millard. The bank's contract was with the paymaster only, and to him only was its duty. It received no money from Millard. It never promised Millard to pay him any money. It had no money belonging to him. It received money from the paymaster, upon an agreement that it would return it to him when called for by him in person, or that it would pay it upon his checks. But it made no such agreement, or any agreement, with Millard. For a failure of duty in this respect it was responsible to the paymaster, with whom it made the contract, and to no one else. If the check was not paid, the arrears of pay to Millard were not paid, and his claim upon the government or the paymaster was not impaired by the giving of the check, which, being presented in due time, was not paid. He was still entitled to demand his arrears.

That case is a perfect and complete authority upon the question stated. See also Artuer v. Bank, 46 N. Y. 82.

Nor is this principle confined to checks or bills. Thus, in Ashley v. Dixon, 48 N. Y. 430, it was held that if A. be under a contract to sell property to B., and C. persuade A. to sell the property to him, no action lies by B. against C. There is no privity of contract between C. and B., but the remedy of the latter is against A. only.

It is not to be doubted, however, that it is within the power of the bank to render itself liable to the holder and payee of the check. This it may do by a formal acceptance written upon the check, in which case it stands to the holder in the position of a drawer and acceptor of a bill of exchange. Merchants' Bank v. State Bank, 10 Wall. 604; Espy v. Bank of Cincinnati, 18 id. 604.

It may accomplish the same result by writing upon it the word 'good,' or any similar words which indicate a statement by it that the drawer has funds in a bank applicable to the payment of the check, and that it will so apply them. Cook v. State Bank of Boston, 52 N. Y. 96. And such certificate, it is said, discharges the drawer. As to him it amounts to a payment. Bank v. Leach, 52 N. Y. 350; Meads v. Merchants' Bank, 25 id. 143; 9 Met. 311; 2 Duer, 121. Whether this certificate be obtained by the drawer before the check is delivered, and is thus made an inducement to the payee to receive the same, or whether it is made upon the application of the payee for his security, is of no importance. It is a contract recognized by the law, valid in its character, which essentially changes the position of the parties. The privity of contract with the drawee, which before pertained to the drawer alone, is now imparted to the payee, and the duty which before existed only to the drawer now exists to the payee.

It is said that this fact of a c ntract between the payee and drawee exists in the present case. The testimony of Mr. Arnold is referred to, to the effect that in April, 1867, the bank made its weekly statement to Mr. Spinner of deposits received and payments made, returning the draft of Mrs. Kimbro as paid on the 22d of that month, and that in the statement the amount of the draft was entered to the credit of the bank.

There is no suggestion in the evidence that either the bank or Mr. Spinner knew that the indorsement of the payee was unauthorized. The bank, we assume, would not knowingly subject itself to the dangers and liabilities resulting from making payment to one not authorized to receive it. We assume, also, as we are bound in justice to it to do, that it would not ask Mr. Spinner to give credit for a payment that it knew to have been illegally made, and that it would not attempt to deceive him into the belief that a pretended indorsement was a real one. It comes to this, then, that, upon a settlement of accounts between them, a credit was by mistake allowed to the bank to which it was not entitled. The law is, that neither party is to be benefited or to be injured by the mistake. The bank must refund the amount by handing over the sum, or by crediting the same to Mr. Spinner in his next account. Mistakes in bank accounts are not uncommon. They occur both by unauthorized or pretended payments, as well as by the omission to give credit for sums deposited. When discovered, the mistake must be rectified, and an ordinary writing up of a bank-book, with a return of vouchers or a statement of accounts, precludes no one from ascertaining the truth and claiming its benefit. Story, Eq. Pl., sects. 799-801; Story, Eq. Jur., sects. 523, 527; Buchlin v. Chaplin, 1 Lans. 443; Bruen v. Hone, 2 Barb. 586; Bullock v. Boyd, 2 Edw. 293. We cannot perceive that such a mistaken recognition of the validity of the payment of this check can create an additional or different contract between the bank and the owner of the draft.

It is further contended that such an acceptance of the check as creates a privity between the payee and the bank is established by the payment of the amount of this check in the manner described. This argument is based upon the erroneous assumption that the bank has paid this check. If this were true, it would have discharged all of its duty, and there would be an end of the claim against it. The bank supposed that it had paid the check; but this was an error. The money it paid was upon a pretended and not a real indorsement of the name of the payee. The real indorsement of the payee was as necessary to a valid payment as the real signature of the drawer; and in law the check remains unpaid. Its pretended payment did not diminish the funds of the drawer in the bank, or put money in the pocket of the person entitled to the payment. The state of the account was the same after the pretended payment as it was before.

We cannot recognize the argument that a payment of the amount of a check or sight draft under such circumstances amounts to an acceptance, creating a privity of contract with the real owner. It is difficult to construe a payment as an acceptance under any circumstances. The two things are essentially different. One is a promise to perform an act, the other an actual performance. A banker or an individual may be ready to make actual payment of a check or draft when presented, while unwilling to make a promise to pay at a future time. Many, on the other hand, are more ready to promise to pay than to meet the promise when required. The difference between the transactions is essential and inherent.

Without discussing the other questions argued, we are of the opinion, for the reasons given, that the plaintiff below was not entitled to recover.

Judgment reversed, and cause remanded for a new trial, or for such further proceedings as the parties may be advised to take.


text: Talk:First National Bank of Washington v. Whitman/Opinion of the Court


text:
Ex parte Flippin

PETITION for a writ of mandamu to the Circuit Court of the United States for the Western District of Tennessee.

Talmadge E. Brown, having a decree in the Circuit Court of the United States for the Western District of Tennessee against the city of Memphis, made application on the law side of that court for a mandamus requiring the city and its mayor and general council to levy and collect a tax for the payment of the amount due him. In this application the name of the person then holding the office of mayor was given, and also the names of the persons who constituted the general council. An alternative writ was issued; and the parties named all appeared by the city attorney, and showed cause against the application. March 30, 1875, a final judgment was entered in the cause, 'by which it was ordered and adjudged that a peremptory writ of mandamus should issue, commanding the city of Memphis and its said general council to proceed each year, for the then ensuing three years, 1875, 1876, and 1877, to levy a tax, in addition to all other taxes allowed by law to be levied, sufficient in amount to realize $125,000 each year for the years 1875 and 1876, and for the year 1877 to realize a sum sufficient to pay whatever sum might then remain unpaid of the said decree. It was further ordered that the clerk of said court, whenever the said Brown should request the same, should issue each year, during the years 1875, 1876, and 1877, respectively, a peremptory writ of mandamus, in accordance with said judgment, to be served on the city of Memphis and its mayor and general council, in the manner prescribed by law.'

Flippin became mayor of the city, and the other petitioners members of the general council, Jan. 15, 1876. The clerk of the court, at the request of Brown, issued, May 24, a peremptory writ, returnable the fourth Monday in November, directed to the city and to the petitioners by name, as mayor and members of the general council, requiring them to levy the adjudged tax for the year 1876. Nov. 27, 1879, the petitioners moved the court 'to set aside and quash' this writ, for the reason, in substance, that they were not parties to the judgment upon which it was issued. This motion was denied Dec. 14, 1876; and the court, by proceeding against the petitioners for contempt in failing to obey the writ, is now endeavoring to compel them to perform the duties which the judgment enjoined upon the city and its mayor and general council.

Pending these proceedings, this application is made here for a mandamus requiring the judge of the Circuit Court to quash the writ.

Mr. W. Y. P. Humes and Mr. S. P. Walker for the relators.

The proceeding by mandamus in this court is the proper and only remedy of the relators.

An order of the Circuit Court, quashing or refusing to quash a writ, cannot be reviewed on a writ of error. Mountz v. Hodgson, 4 Cranch, 324; Boyle v. Zacharie, 6 Pet. 648; Toland v. Sprague, 12 id. 300; McCargo v. Chapman, 20 How. 555.

In the latter case, this court declared that if an execution should be issued, not authorized by the judgment, and the court below should refuse to quash it, a mandamus would seem to be the proper remedy. 'It is a writ which may be issued to inferior courts and magistrates, to require them to execute that justice which the party is entitled to, and which by law they are enjoined to do, and where there is no other remedy.'

title: Ex parte Flippin


text: Talk:Ex parte Flippin

title: Talk:Ex parte Flippin


text:
Ex parte Flippin/Opinion of the Court

Ordinarily, this court will not do more than compel the Circuit Court to act, and render some judgment, in a case of which it has improperly refused to take jurisdiction. Railroad Company v. Wiswall, 23 Wall. 507; Insurance Company v. Comstock, 16 id. 270.

While a mandamus will not lie to control the judicial discretion of the Circuit Court, by dictating what judgment it shall render, it is the appropriate means of preventing the execution of a writ sued out by order of an inferior court against persons not parties to the proceeding.

Mr. William M. Randolp, contra.

The order of the Circuit Court, refusing to quash a writ in execution of a judgment or a decree which is final, is not subject to revision or reversal by mandamus by any other court. Ex parte Newman, 14 Wall. 152; Ex parte De Groot, 6 id. 497; United States v. Addison, 22 How. 174.

The discretion of the court below was invoked and exercised, and no other court has authority to supervise its action. High on Extraordinary Legal Remedies, sects. 156, 176, and the cases cited; Wylie v. Cox, 14 How. 1; Connor v. Peugh, 18 id. 394; Warren v. Norton, 20 id. 448; The Secretary v. McGarrahan, 9 Wall. 298; Litchfield v. The Register and Receiver, id. 575.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

The writ of which the petitioners complained was one of execution to carry into effect the judgment in the original suit for the mandamus. 'The jurisdiction of a court is not exhausted by the rendition of its judgment, but continues until the judgment is satisfied.' Wayman v. Southard, 10 Wheat. 23. 'Process subsequent to judgment is as essential to jurisdiction as process anterior to judgment, else the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution.' Riggs v. Johnson County, 6 Wall. 187. But if the court has jurisdiction to issue process, it has necessarily jurisdiction to decide as to its appropriate form. Here the process has been issued; and the court, upon motion, has decided that it was good in form, and ought not to be quashed. Of this decision the petitioners complain, and seek to have it reversed. This we cannot do by mandamus. Under that form of proceeding we may compel an inferior court to decide upon a matter within its jurisdiction and pending before it for judicial determination, but we cannot control its decision. Neither can we in that way compel the inferior court to reverse a decision which it has made in the exercise of its legitimate jurisdiction. That is the office of a writ of error or an appeal, in cases to which such proceeding applies, but not of a writ of mandamus. If there is any thing in the case of McCargo v. Chapman, 20 How. 555, to the contrary of this, it is disapproved.

Petition denied.

title: Ex parte Flippin/Opinion of the Court


text: Talk:Ex parte Flippin/Opinion of the Court


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Cromwell v. County of Sac

ERROR to the Circuit Court of the United States for the District of Iowa.

The action was on certain bonds and coupons thereto attached, issued by the county of Sac, in the State of Iowa. The facts are sufficiently stated in the opinion of the court. The defendant obtained judgment, and the plaintiff brought the case here.

Mr. John N. Rogers for the plaintiff in error.

Mr. Galusha Parsons, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Cromwell v. County of Sac


text: Talk:Cromwell v. County of Sac

title: Talk:Cromwell v. County of Sac