see.

Marked a rock there on North Carolina side N. C. 1821 and on the other side T. E. N. 1821-and runs with the line that J. McDowell, M. Matthews and D. Vance run in the year 1799, and runs with said line about 2 miles and a half to where they stopped." Then follow the courses and distances, with trees by name of kind and other physical objects.

These documents are variously interpreted by the experts of the parties. To detail and compare these interpretations and the arguments in support of them would be a tedious task and would have to be very extensive to adequately represent their strength. We have estimated them, but consider that general comment rather than specific review is sufficient. The documents undoubtedly have inaccuracies and fault may be found with them, but allowing for it they have a direction and concurrent strength which cannot be resisted when combined with other testimony, and demonstrate that the commissioners did not locate the dividing line on the Hangover ridge but located it along Slick Rock Creek to Fodder Stack. Their report agrees with such line and the local topography justified its selection. The dividing line as run by them, they reported, began at "a stone set upon the North side of the Cataloochee Turnpike road, running thence a southwesterly course to the Bald Rock on the summit of the Great Iron or Smoky Mountain and continuing southwesterly on the extreme height thereof to where it strikes Tennessee River and crossing Tennessee River at the distance of Sixty-five miles from the beginning." Thus far there is no dispute or uncertainty. "The summit" of the mountain and its "extreme height" should determine the locality of the line and the Tennessee River at a distance of sixty-five miles from the beginning. The next call has no such certain and conspicuous witness. The river is crossed, and thence the line runs "to the main ridge" and then along

the "extreme height" of it. The words of the call suppose an interval between the river and the “main ridge" whose extreme height thereafter is to be followed,-to be definite, a course up Slick Rock Creek to Fodder Stack. But granting that it could be literally satisfied without supposing such an interval, that is, connecting immediately with Hangover ridge, we must resort to the evidence to resolve the conflict of suppositions. We find the first established by the evidence which we have referred to and the marks on the trees. And these marks have of themselves great strength of proof, irresistible strength when combined with the other testimonies. They are the same in character as those on the undisputed part of the line, made, therefore, to define the continuity of the line, and the report explicitly states that the line was so defined in continuity-marked "in its whole length." We certainly cannot consider that a few trees-two or three only-identified as "State-line trees," marked on Hangover ridge satisfy this statement or determine that a line along that ridge was the ultimate one selected and the other but tentative, notwithstanding there were found on it from the river to Fodder Stack twenty-seven marked trees and from the latter point to the junction about as many more. Conjecture- against this we cannot indulge. Imagination is not proof, and, we repeat, whatever might be said of any particular piece of evidence standing by itself, their union and concurrence amount to demonstration. And, we repeat, it must have been supposed by the States when they constituted the commission that judgment would have to be exercised, and, when exercised, should be binding. The contention of North Carolina is, therefore, sustained by the proof as to Slick Rock basin.

But it is contended by Tennessee that if the commissioners located such line the location was a departure from the cession act and the act of Congress adopting it and that such line not having received the consent or sanction

of Congress is invalid and in conflict with Article I, § 10, Clause 3 of the Federal Constitution providing that "No State shall, without the consent of Congress,

enter into any agreement or compact with another State," etc. If the fact of such departure could be conceded the conclusion might be disputed. Virginia v. Tennessee, 148 U. S. 503. But the fact cannot be conceded. The cession act is very general and necessarily demanded definition to satisfy the requirements of a boundary line, a line not only necessary to mark private property but political jurisdiction. This was realized and commissioners were appointed to run and settle the line exactly. Their work as executed was confirmed by the States.

The considerations which determine decision upon the contentions of the States as to the Slick Rock basin apply to the Tellico territory. Indeed, they make more strongly against the Tennessee contention. Without the newly discovered evidence the judicial judgment was adverse to that contention. Stevenson v. Fain, supra. The judgment is fortified by the evidence in this case. The comments of the court in that case and the considerations which have been expressed in this are sufficient to disclose the grounds of deciding that North Carolina is also right in its contention as to the Tellico territory and in the relief sought by its bill.

A decree should be entered adjudging that the disputed part of the boundary line between the States of North Carolina and Tennessee which was run by the commissioners appointed by the respective States in 1821 and who made report thereof dated at Knoxville, Tennessee, August 31, 1821, descends from the extreme height of the mountain northeast of the Tennessee River, crosses the river at a distance of sixty-five miles from the beginning to a point on the southwest bank thereof just west of the mouth of the stream known as Slick Rock Creek, follows the creek a short distance to a ridge leading up

to the main ridge, follows said ridge up to the summit known as Big Fodderstack Mountain and follows the main ridge thence to the junction of the Big Fodderstack and Hangover leads, and thence follows the main ridge of the Unaka Mountain southwesterly, according to the plat exhibited with this opinion. And, further, that commissioners be appointed to permanently mark said line.

The cross bill of the State of Tennessee should be dismissed.

Counsel for the respective States are given forty days from the entry hereof to agree upon three commissioners and to present to the court for its approval a decree drawn according to the directions herein given, in default of which agreement and decree this court will appoint commissioners, and itself draw the decree in conformity herewith. Costs to be equally divided between the States.

MR. JUSTICE DAY took no part in the consideration and decision of this case.

LANE, SECRETARY OF THE INTERIOR, v. WATTS.

APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

No. 889. Petition for rehearing distributed to Justices October 12, 1914. Decided November 2, 1914.

Opinion in Lane v. Watts, 234 U. S. 525, explained and leave to file petition for rehearing denied.

Quare, whether the act of August 4, 1854, incorporating the territory acquired under the Gadsden Treaty with, and making it subject to, VOL. CCXXXV-2

Argument for Appellants.

235 U.S.

the laws of the Territory of New Mexico, made the provisions of § 8 of the act of July 22, 1854, applicable thereto. Statutory reservations of lands within territory acquired under treaty which are covered by claims of private parties may be subject to repeal; and so held as to reservations of Mexican lands under § 8 of the act of July 22, 1854. Lockhart v. Johnson, 181 U. S. 516. Quare, whether the act of June 21, 1860, did not repeal pro tanto the reservation provisions of § 8 of the act of July 22, 1854.

Where the lands involved have not been reserved, but are necessarily included within one or the other of two grants, they are not public lands nor subject to disposal by the Land Department.

The question of superior title of contesting claimants to lands within territory acquired under the Gadsden Treaty cannot be determined in an action between the Government and one of the claimants and to which the other claimant is not a party.

THE facts, which are the same as those involved in Lane v. Watts, 234 U. S. 525, are stated in the opinion.

Mr. Assistant Attorney General West and Mr. C. Edward Wright, for appellants in support of the petition:

The decision leaves open the question of the status of the conflicting Mexican grants-San Jose, Tumacacori, and Calabazas and yet affirms a decree which enjoins the appellants from further action in respect to the Ohm homestead entry and other entries which are within the boundaries of these Mexican grants. The point made by the appellants was that in no event could the appellees take the lands embraced by these grants because the same were reserved and not subject to appropriation at the time of selection of Baca Float No. 3. If this be so, the appellants ought not to be enjoined as to entries within said grants.

The court leaves the point undetermined and says that it is not now concerned with such question; that if a controversy should arise it will properly be adjudicated in the courts where the lands are located.

If these lands were reserved under § 8 of the act of June 22, 1854, 10 Stat. 308, and if the Land Department,