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assume, that the gravamen of plaintiff's | its own use when erected is thereby dimincomplaint is not that the defendant would ished. The right to erect the wharf was not transport plaintiff's goods, or any part granted by the proper authorities, and, so of them, on defendant's lines, from the far as the record shows, it was granted withwharf in question, “but only that defendant out imposing any conditions as to its use would not permit plaintiff's goods to be at, by the public. We think the plaintiff had from, or by means of defendant's wharf no right of access to the wharf founded loaded upon, or delivered to, the said ves- simply upon the fact that it was erected • sels," with the managers of which plaintiff under proper authority, in the harbor of had contracted to have its goods transport- Pensacola, and at the foot of one of the pubed to other ports. This means of trans- lic streets of that city. The question of the portation, by such vessels as plaintiff should rights of plaintiff must really turn upon the choose, is asserted by it as a right, because character of the use of the wharf, whether it contends that the wharf of defendant, it is public or private. under the averment to that effect in the The argument upon the part of plaintiff declaration, and not denied, in terms, in the is, in substance, this: True, defendant has plea, taken in connection with the facts erected a wharf, which is not in fact intendstated in such plea, was a public wharf, or ed or used as the terminus of its road at that, at least, the defendant had devoted it Pensacola, adequate yards and depots havto a public use. The defendant in its plea ing been furnished by the defendant for all sets up facts which it avers show the wharf goods and passengers destined to Pensacola was not a public one. The plaintiff insists only; but the wharf has been erected to enthat the plea shows that the defendant built able defendant to more conveniently carry and used the wharf itself and permitted a out contracts for transportation beyond its large part of the public to use it, includ- own line, which it was not compelled to ing, at any rate, those who were engaged in make, and which it could carry out by such traffic handled by vessels belonging to regu- agencies as it chose; but the plaintiff, havlar lines running in connection with the de- ing goods destined for points outside of fendant, and also including vessels belong- Florida, insists upon its right to use the ing or consigned to the Gulf Transit Com- road of defendant, not to carry these goods pany, an agent of defendant, together with to Pensacola, but to defendant's wharf, so those who were using the wharf under some that plaintiff may there transfer them into special arrangements between them and the vessels which it has arranged to take them; defendant. All this, the plaintiff contends, in order to do this it is necessary that deamounted to making the wharf a public one, fendant be compelled to share its possession or at least that it thereby became a facility, of its own wharf with the managers of these to the use of which the public as a public had other vessels; for this possession plaintiff a right on payment of reasonable compensa- is prepared to make reasonable

compensation.

If plaintiff chose to employ, for the tion. The right on the part of the plaintiff further transportation of its goods, the ves- is urged as the result of the action of desels with the managers of which the defend fendant in permitting the use of the wharf ant had some business arrangement or con- as stated in the plea.

as stated in the plea. By such use it is tract, it is not denied that the defendant contended that the defendant in effect dediwould and did permit such transportation.cated the wharf to the public; or, at least, In this respect there is no allegation that the has granted to the public an interest in the plaintiff did not have equal facilities with use of the wharf. all other shippers. Defendant's plea avers We are of opinion that the wharf was not that it did give to plaintiff the same facili- a public one, but that it was a mere facility, ties for shipping its goods over defendant's erected by and belonging to defendant, and wharf that it gave to any or all shippers. used by it, in connection with that part of In brief, the fact seems to be that the only its road forming an extension from its regucomplaint of the plaintiff is that defendant lar depot and yards in Pensacola, to the will not permit competing vessels to make wharf, for the purpose of more conveniently use of its wharf for the purpose of such procuring the transportation of goods becompetition.

yond its own line, and that defendant need We do not see that the fact that the wharf not share such facility with the public or was erected under authority from the city, with any carriers other than those it chose at the foot of a public street of the city, for the purpose of effecting such further makes any material difference in the charac- transportation. ter of the wharf, or that the right of plain- Neither the public nor the plaintiff had tiff to select its own vessels to continue such an interest in the wharf as would give from that wharf the transportation of its to either the right to demand its use on paygoods is, on that ground, enhanced, or the ment of reasonable hire. Nor was the wharf right of defendant to control the wharf for 'a depot or place of storage of the defendant for goods to be delivered at or taken from Sup. Ct. Rep. 185. In that case it was held the city of Pensacola for transportation by that, although at common law the common rail. The defendant had adequate depots carrier was not bound to carry beyond its and yards in that city for the proper stor- own lines, yet it might contract to do so, age of all merchandise committed to it for and, in the absence of statutory regulations delivery at Pensacola, or there received, to prohibiting it, the carrier might determine be transported therefrom by defendant. All for itself what agencies it would employ to consignees of goods at Pensacola had equal continue the transportation, and it was not facilities for obtaining them there. Al-bound to enter into agreements for such though not bound originally to carry goods transportation with another because it had beyond its own terminus at Pensacola, yet done so with one common carrier. Having the defendant might agree to do so, and it the right, as the authorities prove, to dehad the right, when duly authorized by the cide what agencies it would employ for the proper authorities, to construct facilities to purpose of transporting goods beyond its enable it to continue such transportation own line, and not being bound to enter into beyond the line of its railroad, by such other any contracts or arrangements with one per carriers as it might agree with. The city son or carrier because it had so contracted or or state authorities, in granting the right arranged with another, we think it follows to erect such facilities, might, of course, that defendant was not obliged to permit have attached such conditions as they the public to have access to its wharf, built thought wise; but, in their absence, neither for the purpose stated, simply because it the public nor this plaintiff, as the owner of granted such permission to

permission to those with goods, would have the right, on this state of whom it made arrangements of the kind set facts, to go to the wharf with vessels for the forth in the plea. While refusing to make purpose of continuing transportation of any agreement with defendant for the furgoods in competition with the defendant. ther transportation of plaintiff's goods The defendant never became a common car- beyond Pensacola, plaintiff nevertheless rier, as to this wharf, in the sense that it claims a right to use the wharf erected by was bound to accord to the public or to defendant for its own purpose, as already plaintiff a right to use it upon payment of stated. This cannot be sustained. The compensation. We do not see that the principle stated in the above case is, in subplaintiff had any right even to demand that stance, recognized in Gulf, C. & 8. F. R. Co. the defendant should carry plaintiff's goods v. Miami 8. S. Co. 30 C. C. A. 142, 52 U. on the rails defendant had laid down to S. App. 732, 86 Fed. 407; Little Rock & M. reach the wharf from its depot or yards at R. Co. v. St. Louis S. W. R. Co. 26 L. R. A. Pensacola, the terminus of its road at that 192, 4 Inters. Com. Rep. 854, 11 C. C. A. city. Those rails were only laid for the pur- 417, 27 U. S. App. 380, 63 Fed. 775, affirmpose of reaching the wharf, in order that de- ing same case in 4 Inters. Com. Rep. 537, 59 fendant might carry goods to it which it Fed. 400. The two last cases involved the had undertaken to forward, by itself or by construction of the Interstate Commerce vessels it had arranged with, beyond its line. Act, but they affirm the principle that a Very likely it would be bound to carry common carrier may agree with such other plaintiff's goods on this part of its rails, carrier as it may choose, to forward beyond for the same purpose and on the same terms its own line the goods which it had transit did for others, viz., in order that it might ported to its own terminus. See also Cenitself, or through others it had contracted tral Stock Yards Co. v. Louisville & N. R. with, forward the goods beyond its own line. Co. 192 U. S. 568-571, 48 L. ed. 565–569, But plaintiff demands more than this: it 24 Sup. Ct. Rep. 339; Kentucky & I. demands that defendant shall carry plain-Bridge Co. v. Louisville & N. R. Co. 2 L. R. tiff's goods over its rails thus laid, in order A. 289, 2 Inters. Com. Rep. 351, 37 Fed. that plaintiff may itself forward its goods 567; Oregon Short Line & U. N. R. Co. v. by vessels of its own selection, and that de-Northern P. R. CO. 4 Inters. Com. Rep. 249, fendant shall surrender

possession

of 51 Fed. 465; Ilwaco R. & Nav. Co. v. Oreenough of its wharf to enable plaintiff togon Short Line & U. N. R. Co. 5 Inters. do so.

Com. Rep. 627, 6 C. C. A. 495, 15 U. S. App. That the defendant had the right to 173, 57 Fed. 673. choose its own agencies, and grant to them The cases cited did not involve rights of the exclusive privilege of access to its own parties to a wharf situated in a harbor, but wharf, which it built only for the purpose we think that the right of one carrier to enof continuing the transportation of goods ter into arrangements with another carrier which it had transported to the end of its to forward its goods, and to refuse to do so line, has in effect been decided by this court. with others, or to permit such others to Atchison, T. & S. F. R. Co. v. Denver & N. avail themselves of the facilities construct O. R. Co. 110 U. S. 667, 28 L. ed. 291, 4'ed by the original carrier for that purpose, is not altered because the facility so con- | ing its cargo, and then loading with goods structed by it happens to be a wharf in the from the railroad. In this way there would harbor of a city instead of some structure be confusion in time and in the possession on land. The wharf may be a private one, of the wharf by the different vessels, and its and its owner may permit those only to value for the purpose for which it was have access to it that it may choose. A

Aerected would be greatly reduced, if not private wharf may exist on the shores of a wholly destroyed. navigable river or lake, or in a harbor of The principle herein recognized has also a city from which access is obtained di- been affirmed by this court in what are rectly to the sea. Dutton v. Strong, 1 known as the Express Cases, 117 U. S. 1, Black, 23, 32, 17 L. ed. 29, 32.

29 L. ed. 791, 6 Sup. Ct. Rep. 542, 628, It is to be remembered that the wharf where it was held (because the facilities was not, in strictness, the terminus of de were necessarily limited) that railroad comfendant for unloading its goods for Pensa- panies had the right to contract with cola. The defendant had other depots and particular express companies for the transyards for that purpose. The main use of portation of the traffic of the latter over the the wharf was only for the purpose of lines of their railroads, and that the railsending the goods brought by defendant, to road company was not bound to transport other ports as a continuation of their car- the traffic of independent express compariage beyond the line of the defendant's nies over its lines in the same manner in road. How much space, if any, it might de which it transported the traffic of the parvote to other vessels, with the managers of ticular companies contracted with; in other which it might make special arrangements, words, that the railroad companies were not would naturally be for the defendant to de- bound to furnish, in the absence of a statcide, as also the particular terms of such ute, to all independent express companies, arrangements. The conveniences of the equal facilities for doing an express busiwharf are, of course, necessarily limited. ness upon their passenger trains.

It is well said by counsel for defendant in These observations answer the contention their brief that "the very nature of a wharf, of plaintiff that defendant, by erecting the and its inadequacy to meet the demands of wharf and using it in the way it does, has every incoming vessel, necessitates that its thereby devoted its property to a public use, use should be exclusively for those with and that it has thereby granted to the pubwhom the carrier enters into arrangements. lic an interest in such use, within the prinThe carrier has a right to select a strong ciple laid down in Munn v. Illinois, 94 U. connection instead of a weak one,--one that s. 113, 24 L. ed. 77. It has not devoted its will give assurance of permanent business, wharf to the use of the public in so far as instead of one that can offer only occasional to thereby grant to every vessel the right to shipment. If the free use is incompatible occupy its private property upon making with the certain regular use by the steamer, compensation to defendant for the exercise or lines of steamers, with which the carrier of such right. The reasons we have alis aligned, it is too clear for further reason- ready endeavored to give. ing that such carrier has the right to ac- The judgments of the Circuit Court of cept the latter and thereby exclude the Appeals and of the Circuit Court for the former."

Northern District of Florida are reversed, The reasons for permitting such use of and the case remanded to the latter court the wharf are manifold. Without it the for further

Without it the for further proceedings not inconsistent commerce of the country in the large cities with this opinion. would be cramped, if not very greatly dam- Reversed. aged, by the uncertainty of finding quarters for the regular and swift unloading and Mr. Justice Harlan dissents. loading of the vessels. But the capacity of

(198 U. S. 416) a wharf is necessarily limited, and if the wharf were open to all comers in their turn A. H. LEONARD, George R. Wilson, R. N. there could be no certainty as to any par

Smith, et. al., Piffs. in Err., ticular vessels being able to reach the wharf at any definite time, and consequently there VICKSBURG, SHREVEPORT, & PACIFIC would be a like uncertainty as to when such RAILROAD COMPANY, J. H.

H. MCvessel would be able to depart with its load. Cormick, Receiver, and C. C. Harvey. One unexpected so-called tramp vessel might, by arriving a few hours in advance, Error to state court-Federal question. take possession of all that was left of the wharf for the purpose of loading, and thus 1. The presence of a question respecting the

construction and application of the congresprevent the regular steamer, arriving a lit

sional legislation as to swamp and overflowed tle later, from coming to the dock, unload- lands gives no jurisdiction to the Supreme

V.

IN

Court of the United States to review the judgment was final, and had the force and judgment of a state court in an action of effect of res judicata, as against all parties ejectment, holding defendants' title invalid to that suit, and as against the claims of on the independent ground of noncompliance with an act of the state legislature.

plaintiffs in this suit. 2. A Federal question may have been so ex

The copy of complaint in Smith v. Turnplicitly foreclosed by prior decisions as to er, attached, showed that diversity of afford no basis for a writ of error from the citizenship was set up as the ground of Supreme Court of the United States to a jurisdiction. state court.

And answering, defendants averred that 3. A decision of a state court that defendants the state of Louisiana sold to W. W.

in ejectment, who had successfully insisted in a prior suit in a Federal court that only a Smith, on the 14th of May, 1853, the tract portion of a tract of land was in issue, can- of land claimed by plaintiff, for the price not invoke the rule that a judgment deter- of $1.25 per acre, which was paid into the mining the ownership of a portion of a tract treasury of the state by Smith, and was is conclusive between the same parties, claim. never returned to him; that, on the 24th of of the entire tract, is not reviewable in the February, 1855, the state of Louisiana, Supreme Court of the United States, as deny through its constituted authorities, issued ing any Federal rights asserted under the a patent to said tract of land to Smith. Federal court's judgment.

That the state of Louisiana claimed and [No. 233.]

acquired the said tract of land as swamp Argued April 26, 27, 1905. Decided May 29, and overflowed land, granted to the state of 1905.

Louisiana by the acts of Congress of 1849

and 1850, known as the swamp-land grants, N ERROR to the Supreme Court of the and that the state sold the lands to Smith

State of Louisiana to review a judg- as swamp and overflowed lands. ment which affirmed a judgment of the

That all sales of land in Louisiana made First Judicial District Court of the Parish

as swamp and overflowed land, whether of Caddo, in that state, in favor of plain-made by the United States or by the state tiffs in an action of ejectment. Dismissed

of Louisiana, and whether the land sold for want of jurisdiction.

was of that character or not, were confirmed See same case below, 112 La. 51, 36 So. by the act of Congress approved March 2, 223.

1855, entitled "An Act for the Relief of Statement by Mr. Chief Justice Fuller: Purchasers and Locators of Swamp and

This was an action of ejectment brought, Overflowed Lands." [10 Stat. at L. 634, in 1896, by the Vicksburg, Shreveport, & chap. 147.] Pacific Railroad Company in the first ju- That that act of Congress was extended dicial district court, Caddo parish, Louisi- so as to protect sales after its passage, by ana, against certain possessors, for whom the act of Congress of March 3, 1857 [11 Smith, Leonard, and others were substi- Stat. at L. 251, chap. 117, U. S. Comp. Stat. tuted as defendants, to recover 178.80 acres 1901, p. 1588), to confirm all selections of of land in that parish, less 35.18 acres, swamp and overflowed lands by the several theretofore recovered by Smith and others in states under the acts of Congress of 1849 another action.

and 1850. Defendants, both by plea and answer, set That the act of March 2, 1855, confirmed up that they, being either the heirs of W. the title of the said W. W. Smith to the W. Smith, or parties privy, brought suit in tract of land, whether it belonged to the the circuit court of the United States for state of Louisiana, under the swamp-land the western district of Louisiana against grant of Congress, or whether it belonged one Turner, asserting ownership to the en- to the United States, and that Smith thus tire tract, and praying to be restored to acquired title to the land, both by purchase possession of about 40 acres thereof, al- from the state of Louisiana and by confirmaleged to be illegally held by Turner. That tion of Congress. Turner disclaimed title, and averred that Thereupon J. H. McCormick, receiver for he was a tenant of the Vicksburg, Shreve- the Vicksburg, Shreveport, & Pacific Railport, & Pacific Railroad Company, and road Company, filed his plea and exception thereupon the railroad company answered, of res judicata to defendants' answer and claiming possession and ownership of the plea therein of ownership of the said lands, entire tract known as Silver Lake.

averring that, in a suit entitled State of That a judgment was rendered in said Louisiana v. W. W. Smith et al., brought suit in favor of the heirs of W. W. Smith in 1857, in the district court of Caddo (in 1886), decreeing them to be the owners parish, Louisiana, defendant Smith put at of the parcel of land possession of which issue the validity and legality of his title was sought in that suit, and they were put to the land, and, upon final hearing, a in possession of the same; and that the judgment was rendered in that suit decree

was

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ing the certificate and patent under which | as to the ownership of a portion of a tract Smith claimed to be null and void, and of land is conclusive between the same directing their cancelation, and that they parties, claiming under the same titles, as be delivered to the state of Louisiana. to the ownership of the whole tract, should That defendant appealed to the supreme not be applied in the circumstances detailed, court, which appeal was thereafterwards which, in its opinion, operated to confine dismissed; and that said judgment is res the effect of the judgment to the particular judicata, and a perpetual bar to defendants' parcel for which recovery sought. rights of action.

Those pleas were overruled as to all of the The Caddo district court, Watkins, J. tract except 35.18 acres, but the court susfound that, on the trial of the cause of tained plaintiff's plea of res judicata prediSmith v. Turner, in the circuit court, in cated on the judgment in State v. Smith, which case recovery of only 35.18 acres out and thus continued : of the tract of 178.80 acres, known as “This conclusion disposes of the conten"Silver Lake,” was sought, though title to tion that W. W. Smith bought the land in the entire tract was asserted on one side, question as swamp or overflowed land, since and denied on the other, the railroad com- the state, in the suit just referred to, dispany had offered to prove the value of the tinctly alleged that it was not so sold, and whole tract at $10,000, but that Smith had its position was sustained by the judgment objected on the ground that only the pos- therein rendered. But if it had been sold session of 35.18 acres was in issue, and the as land acquired under the acts of Congress circuit court had, therefore, declined to of 1849 and 1850 (9 Stat. at L. 352, chap. admit the evidence, and that, the case hav- 87, and 9 Stat. at L. 519, chap. 84), the ing gone to judgment, a writ of error from result would be the same, since it belonged the Supreme Court of the United States to that class of land which, under the act was dismissed on motion of defendants in of the general assembly, No. 247, p. 306, of error, because the possession of the 35.18 1855, could only have been sold after havacres was not worth over $2,000. 135 U. ing been surveyed; and one of the causes S. 195, 34 L. ed. 95, 10 Sup. Ct. Rep. 728. of action set up by the state in its suit

The district court held that as the same against Smith, and maintained by the judgparties, who now contended that the judgment therein rendered, was that it had not ment in Smith v. Turner constituted the been surveyed. thing adjudged as to the entire tract, had "Finally, it is argued that, under the acts successfully insisted in that case that noth- of Congress of 1849 and 1850, title in ing was therein in issue except the right of præsenti to all swamp and overflowed lands possession of 35.18 acres, the court was within its limits vested in the state of not required to adjudge that the legal ef- Louisiana without regard to selection or fect of that judgment extended to cover the approval; that the land in question was of entire tract. As to the judgment in favor that character; and that the state acquired of the state, in State v. Smith, the court it under those acts, and hence that the recapitulated the facts, finding that the re- United States could not have granted, and turn of the money paid by Smith to obtain the state (or railroad company) could not the patent was lawfully tendered December have acquired, it under the act of June 3, 3, 1857; the grounds on which the judg. 1856 (11 Stat. at L. 18, chap. 42). ment proceeded; that this judgment was “The acts of 1849 and 1850 were clearly rendered November 24, 1860, in favor of the not intended to operate against the will of state, canceling the Smith entry; that the state. On the contrary, they distinctly Smith prosecuted an appeal, which, after left it to the state to select, subject to the delay by reason of the Civil War, was dis-approval of the Secretary of the Interior, missed by the state supreme court, August the lands which it might consider within 11, 1869; and that because of defective the terms of the grant. certificates, the circuit court was led to be- “Whether the state might have selected lieve, in Smith v. Turner, that the case of the tract in question, and whether such State v. Smith had not been disposed of. selection might or would have been approved, The district court further found, for need, not be here considered. In point of reasons given, that the title of the railroad fact, not only was the selection not made company in and to the land was perfect. and the approval not given, but the grantor The court gave judgment in favor of the and the grantee concurred in the view that railroad company, and the case was carried the tract fell within the terms of the act to the supreme court of Louisiana. 112 La. of 1856, and was granted to and acquired by 51, 36 So. 223.

the state of Louisiana, as the trustee of the Dealing with defendants' pleas of res V., S. & P. R. R. Co., for the purpose of aidjudicata and estoppel, the supreme court ing in the construction of the railroad which held that the general rule that a judgment that company was to build."

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