372

his individual opinion, he said that other authorities regarded the boundary line of the riparian proprietor to be low-water mark, and even on that assumption the place in dispute was within the title of the riparian proprietor. The state court subsequently decided that the title of a riparian owner on a navigable stream went only to low-water mark.

St. Anthony Falls Water-Power Co. v. City of Minneapolis, supra, does not decide the point contended for by the plaintiffs in error. It was a contest between private parties as to the effect of a certain deed in reserving rights to the grantor and as to the extent of the right of flowage contained in the deed. The question here under discussion was not even remotely affected.

* We have looked in vain among all the cases in the state court, cited by counsel for the plaintiffs in error, for any decision upon this question. Whatever may be the rights of the plaintiffs in error under their charters, or as the riparian owners of land, to build and maintain their dams to the center of the stream, there is no decision cited which holds that they are entitled to the use of all the water which would naturally flow past their lands and over their dams so constructed, nor has the state court decided that the only right of the state to which this alleged right of the plaintiffs in error is subject or subordinate in any way is limited to the right of the state to control or use the bed of the stream and the waters therein for purposes of navigation only. That limitation has never been placed upon the state with reference to the point here in question. The state supreme court in deciding this particular case was not, therefore, announcing a rule which was at all inconsistent with or opposed to any of its former decisions; and, as the extent of the riparian rights in this case was a subject committed to the jurisdiction of the state of Minnesota, we are bound, so far as this question is concerned, to follow the decision of the highest court of that state as announced in this case.

3. If wrong in their above contentions, the plaintiffs in error then assert that their charters granted in 1856, and set forth so far as material in the foregoing statement of facts, gave and guarantied to them the right to use and develop the water power of St. Anthony falls, and authorized them to build such structures in and upon the river as were necessary to develop that power, and that, when these provisions of their charters were accepted and acted upon, they became contract obligations between the state of Minnesota and the plaintiffs, and that the statute above mentioned, authorizing the defendant to divert some portion of the natural flow of the water without compensation to the plaintiffs, was a violation of the federal constitution as impairing the obligation of the contracts contained in the charters referred to.

We think this contention cannot be maintained. We are of opinion that the true con

struction of these territorial charters does not give such contract rights as are claimed by the plaintiffs in error. They were grants of power to the respective companies under which they were licensed to build their dams out into the river for the purpose of utilizing the power and of using the water that flowed down the river. These grants were in legal effect subject at all times to the paramount right of the state, as trustee for the public, to divert a portion of the waters for public uses, and they were also subject to the rights in regard to navigation and commerce existing in the general government under the constitution of the United States. See, also, upon this subject, Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 18 N. E. 465; City of Auburn v. Union Water-Power Co. (Me.; Oct. 29, 1897) 38 Atl. 561. There was no contract by virtue of these charters that the companies should always and for all time be entitled to all the natural flow of the water in the river without regard to the right of the state as above mentioned. The claim made by the companies seems to us most extravagant. The state, or any particular subdivision thereof, acting under its authority, would, if these claims were valid, be forever thereafter prevented from using any portion of the waters of the river for any public purpose, unless compensation for such use were first made these plaintiffs. This construction of the meaning of the charters assumes the power of a territorial or state legislature to bind future legislatures in dealing with these public rights, and it prevents the latter from providing for the use of any portion of the waters for public purposes of the most important character without first making compensation to the plaintiffs for that use. If we should assume the validity of an act of the legislature of such a character (which, under the decision of this court in Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, is at least doubtful), it is clear that we ought not to adopt a construction leading to that result unless the legislative act be plain and beyond all doubt. We are of opinion that these particular charters of the plaintiffs are not to be thus construed. The sections of the acts which are material upon this point simply authorize the companies to maintain their dams and sluices, and permit them to construct and maintain other dams, etc., for the purpose of manufacturing, or for improving any water power owned or possessed by the companies, in such manner or to such extent as shall be authorized by the directors. But there is no language in the acts providing that the companies shall thereafter and always have the right to the use of all the natural flow of the water down the river. Nor is such right a necessary and legal consequence of the language used. They may have acquired by these acts the right to build dams, etc., and the right to use such water as in fact and from time to time should flow down to their dam, but there is nothing in the language of

909.

the charters showing or implying that it was the intention of the state to grant to these parties the rights now claimed by them. It is difficult to believe that a legislature would ever grant to individuals or companies rights of that nature, even if it be assumed it had the power. It was proper and in accordance with a wise public policy to grant a privilege to these companies to build dams, etc., as stated in the charters, and to permit them, by virtue of the dams and sluices, to use the water that in fact and from time to time might come down the river, but it cannot be supposed that the legislature meant by any grant of this kind to warrant that for all future time no part of the water that might otherwise naturally flow down the river should ever be used under the authority of the state for any public purpose, without compensating the plaintiffs for that diversion.

In Rundle v. Canal Co., 14 How. 80, this court held that by the law of Pennsylvania the Delaware river was a public navigable river, held by its joint sovereigns (the states bordering thereon) in trust for the public; that riparian owners in that state had no title to the river, or any right to divert its waters, unless by license from the states; that such license was revocable and in subjection to the superior right of the state to divert the water for public improvements, either by the state directly, or by a corporation created for that purpose; and that the proviso to the provincial acts of Pennsylvania and New Jersey of 1771 did not operate as a grant of the usufruct of the waters of the river to Adam Hoops and his assigns, but only as a license or toleration of his dam. It appeared in this case that the plaintiffs in error, being plaintiffs below, were the owners of certain mills in Pennsylvania opposite the city of Trenton, in New Jersey; that the mills were supplied with water from the Delaware river by means of a dam extending from the Pennsylvania shore to an island lying near and parallel to it, and extending along the rapids to the head of tide water. The plaintiffs claimed that, by virtue of a proviso in the acts of the provin⚫ cial legislatures of Pennsylvania and New Jersey, their predecessors had become entitled to the free and uninterrupted enjoyment of the river Delaware for the use of their mills, and that, notwithstanding, the defendants had erected a dam in the river above plaintiffs' mills, and had dug a canal and diverted the water to their great injury. A demurrer was interposed, upon which the court below gave judgment for the defendants, and this court was asked to review and reverse that Judgment. It was held that the proviso was nothing more than a license to keep the dam up, which could at any time be revoked.

A careful consideration of the acts in ques tion persuades us that they are not to be construed as plaintiffs claim, and that under them the plaintiffs took no contract rights which have been impaired in any degree by the subsequent acts under which defendants

claim the right set up in their respective an

swers.

These views lead us to the opinion that the judgments of the supreme court of Minnesota in these cases are right, and they are therefore affirmed.

(168 U. S. 505)

UNITED STATES v. UNION PAC. RY. CO. et al.

(December 13, 1897.)

No. 133.

APPEAL CERTIFICATION OF QUESTIONS FROM CIRCUIT COURTS OF APPEALS.

The certification of questions from the circuit court of appeals to the supreme court is governed by the rules which obtained in respect of certification of division of opinion from the circuit courts; and a certificate will be dismissed as insufficient where it does not present distinct points or propositions of law, clearly stated, so that each can be distinctly answered without regard to the other issues of law involved, and when the questions are stated in such form as to require the supreme court to dispose of the whole case.

On a Certificate from the United States Circuit Court of Appeals for the Eighth Circuit.

This was a suit brought by the United States, in the circuit court of the United States for the district of Kansas, against the Union Pacific Railway Company and its receivers, as directed by the act of July 13, 1892 (27 Stat. 126, c. 164), to recover certain amounts "found by the department of the interior to be due from said railroad company, its successors or assigns, under the last paragraph of the second article of the treaty with the Delaware tribe of Indians, of May 30, 1860, and under the concluding clause of the third article of said treaty, and for damage done the said Indians in the taking and destruction of the property by said railroad company, which sums, when recovered, shall be used to reimburse the United States for the sum appropriated in the foregoing paragraph."

That sum was $39,675.16, of which $10,715.75 was to be paid to individual members of the Delaware tribe for improvements on lands sold to the Leavenworth Company, and $28,959.41 was to be paid to individual members of the tribe for right of way through their allotted lands.

The first count of the petition alleged that in the year 1831, and for a long time prior thereto, the United States were the owners in fee simple of all the lands lying north of the Kansas and west of the Missouri rivers, in the then territory of Kansas, and that by the terms of the treaty made between the United States and the Delaware Indians, proclaimed March 24, 1831, the United States conveyed and secured to that Nation, as a permanent home, a certain tract (describing it), with an outlet; that afterwards, in the year 1854, by the terms of another treaty, the Nation ceded to the United States all

their right, title, and interest in and to their country lying west of the state of Missouri, and situate in the fork of the Missouri and Kansas rivers, and also their right and interest in the outlet, with certain designated exceptions.

*It was further averred that articles 11 and 12 of the latter treaty provided that the country reserved for the permanent home of the Delawares might, on request, be surveyed and allotted, and that roads and highways laid out by authority of law should have a right of way through the reservation, "and railroad companies, when the lines of their roads necessarily pass through the said reservation, shall have the right of way, on payment of a just compensation therefor in money"; that afterwards the Delawares signified their wish that a portion of the lands reserved for their home might be divided and allotted, and thereupon, by the terms of a treaty entered into May 30, 1860, it was provided, among other things, that a portion of the reservation should be surveyed and allotted as stated, and, by the last clause of article 2 thereof, that "the improvements of the Indians residing on the lands to be sold shall be valued by the United States, and the individual owners thereof shall receive the amount realized from the sale of the same, to be expended in building other improvements for them on the lands retained." By article 3 it was provided: That as to the remaining lands, after the tracts in severalty and those for special objects named in the treaty had been selected and set apart, the Leavenworth, Pawnee & Western Railroad Company, a Kansas corporation, should have the prior right of purchase, upon the payment into the United States treasury (which payment should be made within six months after the quantity of❘ said land was ascertained), in gold or silver coin, of such a sum as three commissioners, to be appointed by the secretary of the interior, should appraise to be the value, and providing that such value should not be placed below the value of $1.25 per acre, exclusive of the cost of survey.

That upon payment a patent should be issued directly to the company. That the United States would accept the trust imposed on them, and apply the money resulting from such disposition of the lands in the manner prescribed by the treaty of 1854; and it was "also agreed that said railroad company shall have the perpetual right of way over any portion of the lands allotted to the Delawares in severalty, on the payment of a just compensation therefor, in money, to the respective parties whose lands are crossed by the line of railroad."

It was then alleged that by the terms of the treaty the United States became and were the trustees of the Delawares for the purposes provided for therein; that the Leavenworth Company, prior to 1867, accepted the terms of the treaty, and agreed to purchase the unallotted lands of the Delawares, and to pay for them and the im

provements thereon in accordance therewith, and that all the rights of the company in and to the lands, and its liability for the lands and improvements, and all the rights and liabilities of its grantee, successor, and assignee, the Union Pacific Railway Company, were fixed by the terms of said treaties, and that the Leavenworth Company, and its grantee, successor, and assignee, the Union Pacific Railway Company, took the lands "subject to the conditions set forth in said treaties as to the payment therefor, and as to the payment for said improvements thereon"; that the United States on October 20, 1860, appointed three commissioners to inspect and appraise the value of the land and improvements which the Leavenworth Company had become entitled to purchase, and they appraised the improvements at the value of $9,534.25, and returned the appraisement, a schedule of which was made part of the petition. But at the time of that appraisement, and of the purchase of the lands by the Leavenworth Company, there were other improvements, not included, which were afterwards appraised at the sum of $1,181.50, and an itemized statement of these improvements was attached.

The United States further averred that the Leavenworth Company was unable to carry out the terms of the purchase of the lands and improvements, and pay for the same, as provided for in the treaty, and that afterwards a further treaty was made and entered into, on or about July 2, 1861, ratified August 6, 1861, which in terms referred to the provisions for the sale of the lands and improvements in the prior treaties,, by which last-mentioned treaty it was pro-a vided that the*Leavenworth Company might execute its bonds, with interest coupons attached (the principal sum to be $286,742.15). and execute a mortgage on 100,000 acres of land, as set forth in a letter of the commissioner of Indian affairs to the secretary of the interior, dated May 29, 1861; said mortgage to be conditioned for the payment of the bonds, both principal and interest, (the bonds and mortgage being executed by the company in lieu of the payment previously provided for); but no provision was made in the last-mentioned treaty for any change in the time or manner of paying for said improvements, and the bonds and mortgage were executed to secure the payment of the purchase price of the lands, only, exclusive of the value of the improvements, the amount whereof was not included in the mortgage.

It was also averred: That through changes in the name of the Leavenworth Company, and through a consolidation by and with other railroad companies, the Union Pacific Railway Company succeeded to all the franchises, property rights, and interests of the said Leavenworth Company, and became and was subject to all the liabilities of that com

pany under and by virtue of the said several treaties, and under and by virtue of the purchase of said Delaware Indian lands and the improvements thereon. That thereafter, by the terms of the treaty entered into on the 4th day of July, 1866, which treaty was ratified on or about the 26th day of July, 1866, in article 1 thereof it was provided "that the United States shall secure and cause to be paid to said Indians the full value of all that part of their reservation, with the improvements then existing on the same, heretofore sold to the Leavenworth, Pawnee and Western Railroad Company, according to the terms of a treaty ratified August 22nd, 1860, and supplemental treaties, and in accordance with the conditions, restrictions, and limitations thereof."

That thereby plaintiffs became and were sureties for the payment of the value of said Improvements, and trustees for the Delaware Indians, to collect and dispose of the money as provided therein, and that neither the Leavenworth Company, nor any of its assignees or successors, nor the Union Pacific Railway Company, nor its receivers, defendants herein, have paid for said improvements, and that they remain due and wholly unpaid by defendants.

That by an act of congress, approved July 13, 1892, there was appropriated and paid to the Delaware Indians the sum of $10,715.75, which sum the United States paid to those Indians as sureties under the treaties, and in discharge of the trust created thereby.

And plaintiffs said that by the terms of the treaties, and by the acceptance thereof by the Leavenworth Company and its grantee, successor, and assignee, the Union Pacific Railway Company, the latter became and was liable to plaintiffs, as sureties and trustees, for money paid out and expended on behalf of defendants for said improvements, in the sum of $10,715.75, which sum, together with interest thereon from May 30, 1860, was now due and wholly unpaid.

The second count averred that by virtue of the treaties mentioned in the first count the Leavenworth Company became entitled to a right of way across the Delaware reservation, and across the lands subsequently allotted in severalty to the Delawares, on payment of a just compensation therefor; that the United States, under the treaties, became trustees for the Delawares, to collect and account for the amount due them for such right of way, and the sureties of the railroad companies for the payment of the same; that the Leavenworth Company, under these treaties, laid out a right of way and constructed a railroad over and across the reservation, and over and across certain parcels of land allotted in severalty to Delaware Indians, and thereby became liable to the United States, as trustees for the Delawares, for the damages thereby sustained by the latter; that a reasonable compensation for the right of way across the allotted lands amounted to $28,959.41, which

amount was ascertained by an appraisement by a commission appointed under the treaty; that the Union Pacific Railway Company was the successor of the Leavenworth Company, and liable for the amount due the Indians for the right of way; that the amount specified was appropriated and paid the Delaware Indians by the United States under the act of July 13, 1892, as sureties, and was due from the railway company.

To these counts demurrers were sustained by the circuit court, and judgment entered in favor of defendants. The case was then carried to the circuit court of appeals for the Eighth circuit, and that court certified to this court the two counts, the demurrers, and the judgment thereon, and its desire for instruction "upon the following questions and propositions of law arising upon the record in such cause, to the end that it may properly decide said cause:

"First. Upon the facts stated in the first and second counts of said petition, is the United States entitled to recover from the Union Pacific Railway Company, or the receivers thereof, the whole or any part of the sum of $10,715.75, heretofore paid by the United States to the Delaware Indians, pursuant to the act of congress of July 13, 1892 (27 Stat. 126, c. 164), for improvements upon lands sold to the Leavenworth, Pawnee & Western Railroad Company?

"Second. Upon the facts stated in the first and second counts of said petition, is the United States entitled to recover from the Union Pacific Railway Company, or the receivers thereof, the whole or any part of the sum of $28,954.41, heretofore paid by the United States to individual members of the tribe of Delaware Indians, pursuant to the provisions of the act of congress of July 13, 1892, for and on account of right of way through allotted lands belonging to members of said tribe, which right of way was secured by the Leavenworth, Pawnee & Western Railroad Company in accordance with the concluding clause of article 3 of a treaty concluded with the tribe of Delaware Indians on May 30, 1860?

"Third. Upon the facts stated in the first and second counts of said petition, were the demurrers thereto properly sustained?"

Sol. Gen. Richards, for the United States. John F. Dillon, for defendants in error.

*Mr. Chief Justice FULLER, after stating** the facts in the foregoing language, delivered the opinion of the court.

It is settled that the certification provided for in sections 5 and 6 of the judiciary act of March 3, 1891 (26 Stat. 826, c. 517), is governed by the rules laid down in respect of certificates of division under the Revised Statutes. Watch Co. v. Robbins, 148 U. S. 266, 13 Sup. Ct. 594; Maynard v. Hecht, 151 U. S. 324, 14 Sup. Ct. 353; Graver v. Faurot, 162 U. S. 435, 16 Sup. Ct. 799; Cross T. Evans, 167 U. S. 60, 17 Sup. Ct. 733.

By those rules, as repeated in these cases from prior decisions, "each question had to be a distinct point or proposition of law, clearly stated, so that it could be distinctly answered without regard to the other issues of law in the case; to be a question of law, only, and not a question of fact, or of mixed law and fact, and hence could not involve or imply à conclusion or judgment upon the weight or effect of testimony or facts adduced in the case, and could not embrace the whole case, even where its decision turned upon matter of law only, and even though it was split up in the form of questions." Association v. Wickham, 128 U. S. 426, 9 Sup. Ct. 113; Dublin Tp. v. Milford Sav. Inst., 128 U. S. 510, 9 Sup. Ct. 148.

The questions propounded in this certificate do not present distinct points or propositions of law, clearly stated, so that each could be distinctly answered without regard to the other issues of law involved, and they obviously bring the whole case up for consideration and disposition.

Elaborate argument on behalf of the government was made at the bar, dealing with the Delaware treaties of 1831, 1854, 1860, 1861, and 1866, and the construction of various provisions thereof, with the construction of the Pacific Railroad act of July 1, 1862 (12 Stat. 489, c. 120), and also with the legislation in relation to the incorporation of the Leavenworth, Pawnee & Western Railroad Company, its change of name, and consolidation with other railroad companies under the name of the Union Pacific Railway Company. Laws Kan. 1855, p. 914; Act July 2, 1864 (13 Stat. 356, c. 216); resolution of March 3, 1869 (15 Stat. 348); Act March 3, 1869 (15 Stat. 324, c. 127).

• Defendants in error contended that the petition was fatally defective in respect of any ground of liability for the improvements; that there was no sale of the improvements separate from the lands; that the stipulated patent carried title to the improvements with the lands; that by section 2 of the Pacific Railroad act of July 1, 1862, the United States granted the right of way through the reservation, and undertook to extinguish the Indian title; that the grant was of a free right of way, and the United States were estopped by It from maintaining the second cause of action; that this question was res judicata by the judgment of the supreme court of Kansas in Grinter v. Rallway Co., 23 Kan. 642; that the line of the Kansas Pacific Company upon the right of way in question was not the line of the Leavenworth, Pawnee & Western Railroad Company, or its successor, but of an independent corporation created by an act of congress; and that, even on the theory of the government, the defense of laches and limitations was available, and formed a complete bar.

To answer the questions certified would require us to consider the several matters thus pressed on our attention, to pass upon ques

tions of law not specifically propounded, and to dispose of the whole case. It follows that the certificate is insufficient, under the statute.

Certificate dismissed.

(168 U. S. 513)

SPRINGER LAND ASS'N et al. v. FORD. (December 13, 1897.) No. 89.

MECHANICS' LIENS-CONSTRUCTION OF STATUTES— STATEMENT OF CLAIM-SUBCONTRACTS -DESCRIPTION OF LAND.

1. Mechanic's lien laws, being remedial, should be so construed as to effectuate their object. Substantial compliance, in good faith, with the requirements of the particular law, is sufficient, and the test of such compliance is to be found in the statute itself.

2. Under a statute requiring a notice of lien to state the name of the "owner or reputed owner, if known" (Comp. Laws N. M. 1884, § 1524), a notice which states that certain corporations and others are "the owners or reputed owners" of the property is sufficient. 41 Pac. 541, affirmed.

3. Under a statute requiring the claim of lien to state the lienor s demand, after "deducting all just credits and offsets," and to contain "a statement of the terms, time given, and conditions of his contract" (Comp. Laws N. M. 1884, § 1524), it is sufficient to claim a specific sum as "the balance due and owing, after deduct

ing all just credits and offsets, for excavating and embankments done and performed by him under a certain contract," which is annexed to, and made part of, the claim. 41 Pac. 541, affirmed.

4. As between the parties, the fact that a lien is claimed for a greater sum than is actually owing, or is actually covered by the lien, does not vitiate the claim of lien.

5. The contract under which work was done for which a mechanic's lien was claimed provided that the amount due the contractor under the final estimate should only be payable on satisfactory showing that the work was "free from all danger of liens or claims of any kind, through failure on his part to liquidate his just indebtedness as conected with this work." Part of the work was let to subcontractors under contracts declaring that the amounts due them were not to "be demanded or paid in advance of the payment of the regular estimate." Held, that the failure of the contractor to pay his subcontractors, because of the failure of the property owners to pay him the amount of the regular estimates, did not render the land liable to any lien or claim through his failure "to liquidate his just indebtedness," and the fact that the subcontractors had not been paid did not prevent him from obtaining a valid lien. 41 Pac. 541, affirmed.

6. Where a contractor constructing an irrigation ditch agrees to select a tract of land out of those to be benefited, which is to be credited to him, at a fixed price, as part payment for the work, provided his employer secures a sufficient deed from the owner to himself, a subsequent mechanic's lien filed by such contractor is not invalid for failure to credit the price of such land on the amount of his claim, where it does not appear that there was ever any tender of the deed, or any showing of readiness or willingness to deliver it. 41 Pac. 541, affirmed.

7. Under a statute giving a lien, for labor and materials used in the construction of ditches, not only on the ditch and the land through which it is constructed, but on so much of the land about the improvement as might be required for its "to be determined by the court on rendering judgment" (Comp. Laws N. M. 1884, §§ 1520, 1522), a lien may be obtained, not only upon the

use,