Opinion of the Court.

of 1789 are not material here. Serè v. Pitot, was decided in 1810; has been cited many times; frequently, with approval, on analogous points, Smith v. Railroad Company, 99 U. S. 398; Corbin v. County of Black Hawk, 105 U. S. 659; Mexi can National Railroad v. Davidson, 157 U. S. 201; though criticised in Bushnell v. Kennedy, 9 Wall. 387, has never been overruled, and is decisive of the present case.

The title to Carr's estate passed on his death to his heirs. (Rev. Civil Code La., Arts. 940 et seq.) These warrants were sold at a judicial sale under authority of an order of the probate court of the parish, having the administration of the estate, by the sheriff of that parish. Glass became the purchaser, and the adjudication made and recorded by the sheriff gave him title. Rev. Civil Code, Arts. 2622, 2623. And, moreover, the Code provided that: "All the warranties to which private sales are subject exist against the heir in judicial sales of the property of successions." Art. 2624; Deloach v. Elder, 14. La. Ann. 662. The title thus obtained did not devolve on Glass in the same manner as the law devolves title by its own operation on an executor, an administrator, an heir, a universal legatee or a receiver, but was transferred by the sale and the adjudication. The purchaser at sales on judgment and execution similarly obtains title through the act of the executive officer.

Conceding that proceedings in settlement of estates in probate courts are in themselves proceedings in rem, yet the title to property ordered to be sold in such proceedings is not transferred by the mere order of sale, but by the sale taking place as prescribed. Its validity depends on the jurisdiction of the probate court; its transfer is accomplished in the designated way through the designated instrumentality.

In our opinion Glass came within the restriction of the statute, and the Circuit Court correctly held that jurisdiction could not be sustained. Judgment affirmed.

Opinion of the Court.

UNITED STATES v. BELLINGHAM BAY BOOM

COMPANY.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH

CIRCUIT.

No. 21. Submitted December 15, 1899. Decided January 29, 1900.

The power of Congress to pass laws for the navigation of public rivers, and to prevent any and all obstructions therein, cannot be questioned. When the Attorney General acts under the authority conferred by the river and harbor act of September 19, 1890, c. 907, he has the right to call upon the court, upon proper proofs being made, to enjoin the continuance of any obstruction not authorized by statute, and the court has jurisdiction, and it is its duty to decide whether the existing obstruction is or is not affirmatively authorized by law.

In such inquiry the court is bound to decide whether the boom, as existing, is authorized by any law of the State, when such law is claimed to be a justification for its creation or continuance.

There is no doubt that the boom in question in this case violates the statute under which it was built, because it does not allow free passage between the boom and the opposite shore for boats or vessels as provided for in the state law.

THE case is stated in the opinion.

Mr. Solicitor General for the United States.

No appearance for the Bellingham Bay Boom Company. MR. JUSTICE PECKHAM delivered the opinion of the court.

This suit was commenced in the Circuit Court of the United States for the State of Washington, Northern Division. The Government brought it under the direction of the Attorney General, to obtain an injunction enjoining the defendant from further continuing a certain boom which it had constructed across the Nooksack River in that State, and to obtain the removal of the same as an obstruction to the navigation of that river.

The defendant is a corporation organized under the laws of the State of Washington, and in its answer it denied that the boom was an obstruction to the navigation of the river, and

Opinion of the Court.

alleged that it was duly authorized to construct and maintain it by virtue of an act of the legislature of the State, and that it had completed the structure prior to the enactment of the Federal river and harbor bill on the 19th of September, in the year 1890.

The authority under which this suit was commenced is the river and harbor act of 1890, approved September 19 of that year, 26 Stat. 426, 454, c. 907, the tenth section of which reads as follows:

"SEC. 10. That the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction, is hereby prohibited. The continuance of any such obstruction, except bridges, piers, docks and wharves, and similar structures erected for business purposes, whether heretofore or hereafter created, shall constitute an offence, and each week's continuance of any such obstruction shall be deemed a separate offence. Every person and every corporation which shall be guilty of creating or continuing any such unlawful obstruction in this act mentioned, or who shall violate the provisions of the last four preceding sections of this act, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court, the creating or continuing of any unlawful obstruction in this act mentioned may be prevented and such obstruction may be caused to be removed by the injunction of any Circuit Court exercising jurisdiction in any district in which such obstruction may be threatened or may exist; and proper proceedings in equity to this end may be instituted under the direction of the Attorney General of the United States."

On the trial it appeared that the Nooksack River is a navigable stream having its source in Whatcom County, State of Washington, and runs through Whatcom County to Bellingham Bay, emptying into that bay, and thence into the Pacific Ocean. The waters of the river lie wholly within Whatcom County, and they are navigable from its mouth for a distance

Opinion of the Court.

of several miles towards its source by light water craft. The boom in question, built by the defendant company at a point just above where the river empties into the bay, is frequently an obstruction to the navigation of the river by steamboats and other craft, as the boom crosses the channel of the river and entirely fills it, excepting that there is what is termed a "trip," which may be opened and vessels pass through the same on their way up and down the river. This "trip" is, however, frequently so choked and blocked up by logs and drift wood coming down the river as to render it impossible to open it.

The defendant during the continuance of the boom has from time to time expended moneys for the improvement of the navigation of the river by removing brush, trees and drift from the mouth thereof, and it has removed trees, snags and drift from the channel for a distance of from fifteen to twenty miles from the mouth of the river. Navigation for boats and water craft has thereby been considerably facilitated, but at the same time the obstruction to the navigation of the river by reason of the existence of the boom is material and at times total. The river is used for navigation by steamboats and small craft for a distance of some miles from its mouth. One of the chief purposes for which the river is used is as an outlet for floating saw logs and timber products to the mills and to market.

The Circuit Court was of opinion that as the chief value of the Nooksack River as a highway is for the floating of saw logs, that persons and corporations having to use it for that purpose have rights equal to the rights of others to use the river for a highway for boats and vessels, and that a boom at the mouth of the river being necessary for gathering and holding logs is to be regarded as an aid to the use of the river for a lawful purpose and entitled to protection, the same as a wharf or pier constructed at a place for the convenience of vessels; that the boom was constructed under the authority of the state legislature, and it was for that reason excepted from the provisions of the tenth section of the act of Congress. The court therefore dismissed the bill. 72 Fed. Rep. 585.

Opinion of the Court.

The Government appealed to the Circuit Court of Appeals for the Ninth Circuit, and that court held that as at the time of the building of the boom there was no act of Congress on the subject, and a state statute authorized the building, it was affirmatively authorized by law within the meaning of the tenth section of the act of Congress. It also held that whether or not the boom was constructed in strict accordance with the terms and provisions of the state statute could not be considered, as that was a question to be determined by the state and not by the Federal court. On these grounds. it affirmed the judgment. 48 U. S. App. 443.

It is evident that the first sentence of the tenth section of the Federal act refers to an obstruction created after the passage of the act. The obstruction prohibited is one that is "not affirmatively authorized by law," and the section then provides that "the continuance of any such obstruction, whether heretofore or hereafter created, shall constitute an offence," and authority is given to the Attorney General to cause a suit of this character to be commenced.

At the time when the boom was constructed, Congress had not by any legislation asserted its authority over nor taken into its own jurisdiction the subject of obstructions to the navigation of this river. The appropriations made by Congress in different years since 1884, for improvements in the Nooksack, among other rivers in the Territory of Washington, did not constitute such an assumption of jurisdiction over the navigation of the Nooksack River as to prevent the State from legislating upon the subject. Willamette Iron Bridge Company v. Hatch, 125 U. S. 1. As Congress had not assumed such jurisdiction either at the time of the passage of the act by the legislature of Washington permitting the construction of a boom by the defendant, nor at the time of its actual construction, then, if it were constructed in a manner conformable to the state statute, it was affirmatively authorized by law at the time of the passage of the act of Congress. It is contended by the Government that this term refers to a law of Congress and does not include any law of a state legislature. We do not so construe section 10.