assume, as no doubt the Governor of Missouri assumed, that the State demanding the arrest and delivery of the accused had no other object in view than to enforce its laws, and that it would, by its constituted tribunals, officers and representatives, see to it not only that he was legally tried, without any reference to his race, but would be adequately protected while in the State's custody against the illegal action of those who might interfere to prevent the regular and orderly administration of justice.

We perceive no error of law in the record and the judgment of the Circuit Court must be affirmed.

It is so ordered.

1

MCGILVRA AND BRESSLER, v. ROSS, STATE LAND COMMISSIONER OF THE STATE OF WASHINGTON.

APPEAL FROM THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 328. Argued October 19, 20, 1909.-Decided November 15, 1909.

While the construction of the act of Congress under which a patent issued and what rights passed under the patent present Federal questions which give the Circuit Court jurisdiction of the case as one arising under the laws of the United States, if prior decisions have so defined such rights that they are removed from controversy, jurisdiction does not exist in the absence of diverse citizenship. The decision in Shively v. Bowlby, 152 U. S. 1, which determined the relative rights of a patentee of the United States and one holding under a conveyance from the State of land below high watermark applies equally to lands bordering on navigable waters, whether tidal or inland, and the test of navigability is one of fact. Each State has full jurisdiction over the lands within its borders including the beds of streams and other waters, Kansas v. Colorado, 206 U. S. 46, 93, subject to the rights granted by the Constitution to the United States.

1 In the Circuit Court separate cases were instituted by McGilvra and Bressler, respectively.

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Statement of the Case.

Where the Circuit Court is without jurisdiction because the Federal questions presented by the bill are no longer open to discussion it should dismiss the bill and not decide it on the merits in order that the plaintiff's rights, if any, may be litigated in the state courts. 164 Fed. Rep. 604, affirmed as to lack of jurisdiction and case remanded for dismissal.

THESE cases were consolidated in the Circuit Court. The appellants were complainants in the suits respectively, and asserted title by virtue of patents from the United States to lands bordering on and touching Lakes Washington and Union in the State of Washington to the lands below the high-water mark of said lakes respectively, against a title claimed by the State. The appellee, James P. Agnew, is the auditor of the county of King, and the other appellees constitute the board of land commissioners of the State.

The fundamental question presented is whether rights below high-water mark passed to the patentees as appurtenant to the uplands conveyed to them or whether they vested in the State upon its admission into the Union and are subject to the control of the State.

The patent in the McGilvra case was issued in 1866, under the act of Congress of April 24, 1820, entitled "An act making further provisions for the sale of public lands;" that in the Bressler case was issued under the provisions of the act of Congress of September 27, 1850, entitled "An act to create the office of surveyor of the public lands in Oregon, and to provide for the survey and to make donations to the settlers of the said public land." It is alleged that the lakes are respectively non-tidal bodies of water, situated wholly within the county of King, Lake Washington being about twenty miles in length, with an average breadth of three miles, and Lake Union being about three miles in length, with an average breadth of one mile; and that neither lake has an outlet, navigable for boats, scows or lighters, and at all times has been confined to the conveyance of passengers or freight to and from different points upon said lake; and that neither lake is now or ever has been

susceptible of navigation, so far as the carrying of passengers or freight is concerned, to points upon the lake from different counties of the State, to and from other States, or to and from foreign nations, and that the same can never be used unless it be by a very extensive system of canals or dredging of the outlet thereof.

It is alleged that the height of the waters of Lake Washington is dependent upon the amount of rainfall, and that the rise and fall of the water "covers and uncovers many hundreds of thousands of square feet of land" in the patented tracts, exceeding the value of $40,000. As to Lake Union, it is alleged that, by a dam constructed about fifty years ago, its waters were raised and are maintained about seven feet higher than their natural level. And further, that a ditch has been excavated, crossing a narrow neck of land which separates Lake Union from Lake Washington, through which the waters of the latter flow into Lake Union and keep its waters at practically the same level.

It is further alleged that by virtue of the patents and the acts of Congress under which they were issued there became vested in the patentees and their successors the ownership of those portions of the lakes immediately in front of the tracts patented "out into" the "deep waters" of the lakes, subject only to the supervision in their use of the same to the extent that they be so used by the proprietor thereof; that said proprietor should not and did not interfere with the rights of other riparian owners, and the rights of the public in navigating the waters of said lake. And that they became and are vested from the dates of the several patents with the exclusive right and privilege to make such fills in shallow water, and to erect such piers, docks and warehouses as might be convenient and necessary to aid and facilitate the navigation upon the waters of the lakes, and that said rights were so vested, "limited only by the rights of supervision in the Government; that said rights be exercised in such a manner that there should be no interference with the rights of other riparian owners, or with

the rights of the public to freely navigate upon the navigable waters of said lake," and that these rights were conveyed by the patents many years before the admission of Washington into the Union.

It is alleged that the State was admitted into the Union, November 11, 1889, and that Article XVII of the constitution of the State reads as follows:

“The State of Washington asserts its ownership to the beds and shores of all navigable waters in the State up to and including the line of ordinary high tide in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes: provided, that this section shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the State."

That by virtue of this provision the State claims the ownership in fee of all the waters and lands under the waters of the lakes up to and including the line of ordinary high water, and by reason of such claim of ownership the legislature passed Senate Bill No. 101, which was approved by the governor February 4, 1907, and took effect immediately upon its passage. The act was entitled "An act to provide for the establishment of harbor lines, survey, platting and appraisal of shore lands of the first class of Lakes Washington and Union, in King County, Washington, the sale and disposition of said shore lands, the creation of the Alaska-Yukon-Pacific Exposition Fund, and declaring an emergency."

It is also alleged that it is provided in said act that "the board of state land commissioners of the State of Washington, acting as a board of harbor line commission or other proper official capacity as now authorized by law, shall, as soon as possible after the passage of this act, and not later than July 1, 1907, establish harbor lines in Lakes Washington and Union, situated in King County, Washington, in front of the city of Seattle, ; and to survey, plat, examine and appraise such shore lands of the first class within or in front of the

Statement of the Case.

215 U. S.

After the establish

limits of the said city of Seattle ment of said harbor lines and the survey, platting, examination and appraisal, as aforesaid, a copy of the plat and record thereof, as required by existing law, shall be deposited with the county auditor of King County, Washington, and another copy shall be delivered to the commissioner of public lands of this State, and the same shall be filed and safely kept as required by law."

It is further alleged that the board has proceeded to survey the lands belonging to the appellants respectively, and has included therein those portions which lie between the line of ordinary high water and the line of low water out into the lakes to a point where the depth is thirty feet, and that the plat thereof covers the property of the appellees.

It is alleged that John J. McGilvra, the original patentee in the McGilvra case, "did erect and construct out into the waters of Lake Washington a wharf in front of a portion" of the patented lands, which was erected and maintained at great expense to facilitate the commerce of the lake, and which was for many years the only wharf within the limits of Seattle. It is alleged that the wharf is still owned by the appellants in the case, and still used for the purpose above mentioned, and is, with the privilege connected therewith and appurtenant thereto, of greater value than $10,000.

It is also alleged in the Bressler case that the owners of the lands alleged therein to have been patented constructed a dock or wharf into the waters of Lake Union, for a landing place for passengers and freight, and it was and is used for that purpose, and that the appellant Bressler has, since his ownership of the property, further improved the same, by covering nearly all of it with buildings, which have long been occupied by his tenants for the purpose of trade and manufacture, and the value of the wharf and buildings exceeds $12,000, and the value of the property $75,000.

It is alleged, in both cases, that by the constitutional provision above mentioned the State "seeks to confiscate without