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consideration, was of the opinion that the ore belonged to the vein. We see nothing to convince use that he was wrong. The position of the respondent is that the ore in controversy is a distinct bedded deposit. But, as the district judge remarks, similar deposits are found at many different horizons, connected with the fissure, and similar in composition to the ore in the fissure. The deposit in question was like the others. Whether we consider merely the [28] practical fact of the continuously occurring deposits along the course of the vein, or the theory of their origin which seems to us the most probable, we believe the district judge to have been right.

Decree of Circuit Court of Appeals

reversed.

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the exceptions filed by the state [29] of Mississippi to the report of the commissioners appointed by the decree in this cause on the 22d day of March, 1920 (252 U. S. 344, 64 L. ed. 605, 40 Sup. Ct. Rep. 353), to run, locate, and permanently mark the boundary line between the states of Arkansas and Mississippi; and the state of Mississippi, having filed certain exceptions to said report, which report is in the words and figures following, to wit:

To the Honorable Chief Justice and the Associate Justices of the Supreme Court of the United States:

We, Samuel S. Gannett, Washington, District of Columbia, Charles H. Miller, Little Rock, Arkansas, and Stevenson Archer, Jr., Greenville, Mississippi, commissioners appointed under the decree of the court, rendered March 22, 1920, "to run, locate, and designate the boundary line between said states along that portion of said river which ceased to be a part of the main navigable channel of said river as the result of said avulsion, in accordance with the above principles: Commencing at a point in said Mississippi river about 1 mile southwest from Friar point, Coahoma county, Mississippi, where the main navigable channel of said river, prior to said avulsion, turned and flowed in a southerly direction, and thence following along the middle of the former main channel of navigation by its several courses and windings to the end of said portion of said Mississippi river which ceased to be a part of the main channel of navigation of said river as the result

ORIGINAL SUIT in Equity between of said avulsion of 1848," have the hon

the states of Arkansas and Mississippi to determine the location of a boundary line. Such line established as delineated and set forth in the report of commissioners appointed to run such line, and upon the map accompanying such report.

Announced by Mr. Justice Day: The state of Arkansas, having moved the court to take up for consideration

Note. On judicial settlement of state boundaries-see note to Nebraska v. Iowa, 36 L. ed. U. S. 798.

On rivers and lakes as state boundary -see note to Buck v. Ellenbolt, 15 L.R.A. 187.

As to change of channel as change of state boundary-see note to State v. Bowen, 39 L.R.A. (N.S.) 200.

or to submit the following report, which report is accompanied by a map entitled:

Supreme Court of the United States. October Term, 1919. No. 7, Original. Map Showing Boundary Line between States of Arkansas and Mississippi below Friar Point, Mississippi.

On account of a continuous high stage in the Mississippi river it was impracticable to carry on any field work previous to August 1, 1920, but, in the meantime, the [30] record was read, local data and maps were examined, and preliminary investigations made in the field.

The commissioners met at Friar point Mississippi, August 4, 1920, and proceeded to view the ground and formulate a plan of procedure.

The determination of the boundary, radius similar to that of the original line proceeded upon the finding of the river in this vicinity, was, without law as laid down by the court; namely, doubt, formed by the main river, and that if the former channel of a river the great difference in the age of the separating two states ceases to be nav- timber on the west bank as compared igable by reason of an avulsion, it does with the age of that on the east bank not render inapplicable the rule which shows that the west bank of this fixes as the boundary line the middle of "slough" marked the most westerly limthe navigable channel rather than the it of the main river at the time of the middle line between the banks (Ar- avulsion. kansas v. Tennessee, 246 U. S. 158, § 4, 62 L. ed. 638, L.R.A.1918D, 258, 38 Sup. Ct. Rep. 301).

(c) The Mississippi land survey of 1835 shows that an island existed at that time near to the Mississippi shore or meander line; evidence on the ground to-day shows conclusively that this portion of the area is much older than is that part which lies farther to the west. "The conformation of the old bank lines is such that accretion to the Mississippi shore in this vicinity is a logical sequence.

After a study of all the evidence in the case and a careful examination of the physical facts on the ground at this time, the commissioners are unanimously of the opinion that "Horseshoe lake," or "Old river," or "Pecan lake," was, at the time the avulsion or cut-off took place, the main navigable channel of the Mississippi river, and therefore this portion of the boundary line should follow, in general, the deepest water in this lake.

We have therefore decided that this line, after leaving the northeast end of "Horseshoe lake," should gradually swing over towards the northwest, and follow the general line of the "slough," but in front, or east, of the same, a distance which is approximately equal to that which is ordinarily found between the main bank and the line of deepest water in the Mississippi river.

Leaving the west or lower end of Horseshoe lake, the boundary line as determined by your commissioners follows, in general, the course of the present "channel" or well-defined chute which runs in a northeasterly direction to the Mississippi river, because the After reaching a point which is oppoevidence on the ground (namely, well- site the upper end of this "slough," we defined high banks on both sides for must, in order to reach the present rivpractically the entire distance, both of er, cross over, for a distance of approxwhich are covered with timber of about imately a mile, land that has evidently the same age; its location west of the been formed by the process of [32] acmeander line of 1833 near the "Horse-cretion since the time of the avulsion, and shoe lake," where caving would be ex- hence the boundary line should be pected, and its location east of the brought east, as soon as is practicable. meander line of 1833 at a point farther north, where accretion would be expected) clearly indicates that this was the last channel actually navigated by the steamboats that entered the "Horseshoe lake" several years after the avulsion or cut-off of 1848.

[31] In arriving at the proper location for the line between the northeast end of "Horseshoe lake" and the Mississippi river at a point about 1 mile southwest from Friar point, we considered the following facts and conditions:

(a) The Arkansas shore, being in a concave bend, would naturally undergo some caving or recession during the thirty-two years between the date of the original land survey (1816) and the date of the cut-off (1848).

(b) The "slough" immediately east of the field in sections 10 and 15, township 4 south, range 4 east, being totally devoid of short and irregular bends, and following a generally uniform curve of

to a point about midway between the old original meander lines, and thence along this mid-line to the Mississippi river.

Commencing at a point in said Mississippi river, approximate latitude 34° 22′ 18′′, longitude 90° 39′ 19′′, about 1 mile west from Friar point, we herewith specifically describe the boundary line as follows:

S. 30° W. 6,831 feet, or 103.50 chains, to monument (1).

S. 0° W. 2,587 feet, or 39.20 chains, to monument (2).

S. 23° E. 5,035 feet, or 76.29 chains, to monument (3).

S. 11° E. 4,927 feet, or 74.65 chains.
S. 25° W. 2,805 feet, or 42.50 chains.
S. 701° W. 2,607 feet, or 39.50 chains.
N. 881° W. 2,290 feet, or 34.70 chains.
N. 681° W. 2,607 feet, or 39.50 chains.
N. 51° W. 1,571 feet, or 23.80 chains.
No. 34° W. 1,733 feet, or 26.25 chains.
No. 4° W. 2,676 feet, or 40.55 chains.

256

N. 124° E. 3,383 feet, or 51.25 chains. | river or Horseshoe lake or state line N. 31° E. 3,317 feet, or 50.25 chains. bears N. 40° W. 1,353 feet.

N. 221° E. 2,864 feet, or 43.40 chains. N. 15° E. 5,148 feet, or 78.00 chains, to a point in the Mississippi river, approximate latitude 34° 22′ 04′′, longitude 90° 40′ 35′′.

Monuments.

Monuments have been set as follows:

State line monument No. 1. Situated in southeast quarter of sec. 10, T. 4 S., R. 4 E., 600 feet east of west bank of slough, and on north side of road through timber-reinforced concrete post 12 inches square, 36 inches high, set on a concrete Lase 24 by 24 by 24 inches.

Monument marked on west side ARK, on east side MISS, on north side 1920, on south side No. 1.

[33] State line monument No. 2. Situated 2,587 feet due south of state line mon. No. 1, and is in the N. E. sec. 15, T. 4 S., R. 4 E. A reinforced concrete post 12 inches square, 36 inches high, set on a concrete base 24 by 24 by 24 inches.

The monument is marked on west side ARK, on east side MISS, on north side 1920, on south side No. 2.

State line monument No. 3. Situated 5,035 feet S. 23° E. from monument No. 2, and 2,375 feet west of a point 100 feet south of levee mile post 72-73. It is in north part of sec. 23, T. 4 S., R. 4 E., a few feet south of line of sec. 14, T. 4 S., R. 4 E. It is a reinforced concrete post 12 inches square, 36 inches high, set on a concrete base 24 by 24 by 24 inches.

This monument is marked on west side ARK, on east side MISS, on north side 1920, on south side No. 3.

Witness trees: Cottonwood, 24 inches diameter, bears N. 56° E. 47 feet distant; hackberry, 3 inches diameter, bears N. 46° E. 6 feet distant. Overcup oak, 10 inches diameter, bears N. 65° W. 38.5 feet distant.

Reference point No. 1.

1,025 feet north of corner of secs. 7 and 18, T. 28 N., R. 4 W., and secs. 12 and 13, T. 28 N., R. 5 W.

Reinforced concrete post 12 inches square, 36 inches high, set on concrete base 24 by 24 by 24 inches.

Monument is marked on north side REF. PT. No. 1, on south side 1920.

From this monument middle of Old

Reference point No. 2.

At corner between secs. 10 and 11, T. 28 N., R. 5 W.

Reinforced concrete post 12 inches square, 36 inches high, set on concrete base 24 by 24 inches.

Monument marked on north side REF. PT. No. 2, on south side 1920.

Witness trees: Cottonwood, 14 inch diameter, N. 42° [34] E. 78.6 feet; cottonwood, 24 inch diameter, S. 66° W. 33.1 feet.

From this monument middle of Old river or Horseshoe lake or state line bears N. 67°E. 1,353 feet.

Reference point No. 3.

At corner of secs. 2, 3, 34, and 35, tps. 28 and 29 N., R. 5 W.

Iron post 6 feet long, 2 inches in diameter, set 3 feet in ground.

Witness trees: A sycamore 18 inches diameter bears N. 23° W. 18.3 feet distant; a boxelder 12 inches diameter bears S. 83° W. 23.3 feet distant.

From this reference point or monument the state line or middle of channel or Horseshoe lake is 808 feet due east.

We return herewith a financial statement showing in detail the money actually expended by the commissioners for running, locating, and designating the boundary line under the decree in this case, including the per diem compensation of the commissioners. Respectfully submitted,

Samuel S. Gannett,
Chas. H. Miller,
Stevenson Archer, Jr.,
Commissioners.

The cause coming on to be heard upon said motion of the state of Arkansas, and exceptions of the state of Mississippi, it is ordered, adjudged, and decreed that the exceptions filed on behalf of the state of Mississippi be and the same are hereby overruled, and said report is in all respects confirmed.

It is further ordered, adjudged, and decreed that the line as delineated and set forth in said report, and upon the map accompanying the same, which line has been marked by permanent monuments, as stated in said [35] report, be and the same is hereby established, declared, and decreed to be the true boundary line between the states of Arkansas and Mississippi, and said map is directed to be filed as a part of this decree.

Certiorari to District of Columbia court of appeals

ance.

inadvertent allow

2. An inadvertent allowance of a writ of certiorari to the court of appeals of the District of Columbia does not establish the jurisdiction of the Federal Supreme Court. [For other cases, see Certiorari, III. in Digest

And it appearing that the expenses and compensation of the commissioners, attendant upon the discharge of their duties, amount to $6,116.45, it is ordered that the same be allowed and approved as a part of the costs of this suit, to be borne equally by the parties. And it appearing further from the report that the state of Arkansas has paid said sum, it is hereby ordered that it be credited to the state of Arkansas in the set- Argued January 14, 1921. Decided April tlement of the costs of this suit between the states of Arkansas and Mississippi.

Sup. Ct. 1918 Supp.]

[Nos. 139 and 113.]

11, 1921.

It is further ordered that the clerk of APPEAL from, and ON PETITION

this court do transmit to the respective governors of the states of Arkansas and Mississippi copies of this decree, duly authenticated, and under the seal of this court, omitting from said copies the map filed with the report.

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Note. On appellate jurisdiction of Federal Supreme Court over District of Columbia courts-see note to United States ex rel. Taylor v. Taft, 51 L. ed. U. S. 269.

On certiorari in United States courts see note to Clark v. Hackett, 17 L. ed. U. S. 69.

As to what judgments or decrees are final for purposes of review-see notes to Gibbons v. Ogden, 5 L. ed. U. S. 302; Schlosser v. Hemphill, 49 L. ed. U. S. 1001, and Detroit & M. R. Co. v. Michigan R. Commission, 60 L. ed. U. S. 802.

for Certiorari to, the Court of Appeals of the District of Columbia to review a decree which, on an appeal from the Commissioner of Patents, reversed the latter's decision not to cancel certain certificates of registration of a trademark. Appeal dismissed, and petition for certiorari denied.

See same case below, 48 App. D. C.

437.

The facts are stated in the opinion.

Mr. Lawrence Maxwell argued the cause, and, with Mr. John E. Cross, filed a brief for the Baldwin Company.

Mr. Samuel S. Watson argued the cause and filed a brief for the R. S. Howard Company.

Mr. Justice Day delivered the opinion of the court:

No. 139 is here upon an appeal from a decision of the court of appeals of the District of Columbia, reversing the decision of the Commissioner of Patents.

No. 113 is an application for a writ of certiorari to review the same decision of the court of appeals of the District of Columbia. The case is reported in 48 App. D. C. 437.

The Commissioner of Patents refused to cancel the certificates of registration of a trademark consisting of the word "Howard," registered by the Baldwin Company, October 17, 1905, and made a like ruling refusing to cancel the certificate of registration of the word "Howard," with the initials "V. G. P. Co.," arranged in monogram, registered March 8, 1898, which marks were registered as trademarks for pianos. appeals were heard together in the district court of appeals upon the appeal of the Howard Company.

The

Proceedings were brought in the Patent Office by the Howard Company against the Baldwin Company to [37] cancel the certificates of registration. It appears that a suit was begun in the dis

trict court of the United States for the | Commissioner to the court of appeals of southern district of New York by the the District was under § 9 of the act, Baldwin Company against the Howard which provides: Company while the cancelation proceedings were pending, which resulted in a decree in favor of the Baldwin Company, restraining the Howard Company from making or selling pianos bearing the word "Howard," but permitting it to use the marks "R. S. Howard Company" and "Robert S. Howard Company." 233 Fed. 439. This decree was affirmed by the circuit court of appeals for the second circuit. 151 C. C. A. 230,

238 Fed. 154.

The Baldwin Company filed in the Patent Office a certified copy of the record in the Federal courts in New York, and in the Patent Office the Examiner of Interferences and the Commissioner of Patents, on appeal to him, held that the adjudication in the New York courts was a bar to the claim of the R. S. Howard Company to cancel the certificates of registration of the trademark "Howard," and dismissed the petition of the Howard Company; thereupon, appeal was taken from the decision of the Commissioner to the court of appeals of the District. That court reversed the decision of the Commissioner of Patents, and directed the clerk to certify its decision as required by law.

The application in the Patent Office to cancel the trademarks was under § 13 of the Trademark Act of February 20, 1905 (33 Stat. at L. 728, chap. 592, Comp. Stat. § 9498, 9 Fed. Stat. Anno. 2d ed. p. 779), which provides:

"Sec. 9. That if an applicant for registration of a trademark, or a party to an interference as to a trademark, or a party who has filed opposition to the registration of a trademark, or party to an application for the cancelation of the registration of a trademark, is dissatisfied with the decision of the Commissioner of Patents, he may appeal to the court of appeals of the District of Columbia, on complying with the conditions required in case of an appeal from the decision of the Commissioner by an applicant for patent, or a party to an interference as to an invention, and the same rules of practice and procedure shall govern in every stage of such proceedings, as far as the same may be applicable."

A motion is made to dismiss the appeal. No specific provision is made for an appeal from the decision of the District of Columbia court of appeals, reviewing the decision of the Commissioner of Patents, but the decision is to be certified to the Commissioner to govern further proceedings in the case. Rev. Stat. § 4914, Comp. Stat. § 9459, 7 Fed. Stat. Anno. 2d ed. p. 202.

If the decision of the court of appeals of the District of Columbia is not final, then the motion to dismiss the appeal should be sustained, and we have no authority to grant a writ of certiorari. Judicial Code, §§ 250, 251.

The nature of proceedings of the character now under consideration was considered in Frasch v. Moore, 211 U. S. 1, 53 L. ed. 65, 29 Sup. Ct. Rep. 6, in which the opinion of Chief Justice Alvey, speaking [39] for the court of appeals of the District of Columbia in Rousseau v. Brown, 21 App. D. C. 73, 80, explaining the nature of this statutory proceeding, and affirming that it did not authorize a judgment, but only the return by the court of appeals of a certificate to the Commissioner of Patents, to be there entered of record to govern further proceedings in the case, was fully approved.

"Sec. 13. That whenever any person shall deem himself injured by the registration of a trademark in the Patent Office he may at any time apply to the Commissioner of Patents to cancel the registration thereof. The Commissioner shall refer such application to the Examiner in Charge of Interferences, who is empowered to hear and determine this question and who shall give notice thereof to the registrant. If it appear after a hearing before the [38] Examiner that the registrant was not entitled to the use of the mark at the date of his application for registration thereof, or that the mark is not used by the registrant, or has been abandoned, and the Examiner shall so decide, the Commissioner shall cancel the registra tion. Appeal may be taken to the Commissioner in person from the decision of Examiner of Interferences." The appeal from the decision of the trict of Columbia, an appeal and writ

In E. C. Atkins & Co. v. Moore, 212 U. S. 285, 53 L. ed. 515, 29 Sup. Ct. Rep. 390, application for registration of a trademark was refused by the Examiner, which action was approved by the Commissioner, and affirmed on appeal by the court of appeals of the Dis

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