deed, viz., "the water power created by the | Mathew J. Mead and N. M. Edwards, ridums." parian owners, in 1880 for the sole purpose of a water power. The Kaukauna Water Power Company, principal defendant herein, is a riparian owner of part of this power, being the owner of three fourths of the residue after the separation therefrom of certain parcels leased to one of the original plaintiffs, the Union Pulp Company, and to one of the defendants. VIII. This court held in 142 U. S. 254, 269, 270, 35 L. ed. 1004, 1009, 1010 that it was necessary that there should be notice of taking while compensation could be had. The notice of taking held sufficient in that case only related to the withdrawing of water from the pond held by the government dam, and not to the use of the water on the various channels of the river below the dam. Speaking of this notice Justice Brown said: "Until this time there had been no active interference with any claim or riparian rights belonging to the water power company.' This notice did not in any way relate to the water power *here in contention, which is[188] that created by the fall of the river below the government dam. As to that water power there has been no notice of taking; on the contrary the canal company has recognized the riparian ownership by acting as a riparian owner itself, and by uniting as a riparian owner with other riparian owners in leases of power created by the Mead and Edwards dam, above referred to. All water powers reserved in the deed were granted to the canal company by the state, through state legislation, presenting only state questions, which we respectfully submit are not reviewable by this court upon this writ of error. V. If we may be permitted to do so we desire to suggest that the conclusion expressed in the following language of the opinion, viz.: "It is apparent from the conceded facts that the water power in question did not exist while the stream was in its natural condition," is not strictly accurate. While it its true that in the natural condition of the stream the water power in question (being that below the dam) did not exist in its most available form, yet that it did exist in its most essential and valuable feature as a property right, viz., in the natural fall of 42 feet from the head to the foot of the rapids, is too clear for controversy. Were it not for this natural fall there would be no water power; with it a power exists which can be fully developed for use at a small cost. It also exists in that part of the stream which the state supreme court found as a fact had never been navigable, and where the same court in A. C. Conn Co. v. Little Suamico Lumber Mfg. Co. 74 Wis. 652, and in State v. Carpenter, 68 Wis. 165, 60 Am. Rep. 848, recognizes the right of the riparian owner to place structures to make available the natural power, so long as such structures do not materially or unreasonably interfere with the public right. VI. We failed to make clear to the court another matter of fact. The court says: "It was found by the trial court that the Green Pay & Mississippi Canal Company has leased all of the water power created by the dam and canal, or arm of the dam, to be used over the water lots abutting on the canal." This is only true in the sense that the canal company had leased all of the water [187]power "which it could find customers for;" not that it had leased all the water power "created by the dam and canal." The canal company filed a schedule of its leases existing at the time of the trial of this cause. This schedule, the company's own statement, shows leases of water "to be used over the water lots abutting on the canal" of only 860 horse power out of the 2500 horse power reserved. It also shows leases from the pond at the middle power below the dam, whereon are the mills of the original plaintiffs and whereon the canal company is a riparian owner, of 900 horse power. On and prior to October 1, 1880, the canal company had leased only 230 horse power "to be used over the water lots abutting on the canal." VII. This court says: "It is apparent from the conceded facts that the water power in question did not exist while the stream was in its natural condition, nor was it created by the erection of a dam by private persons for that sole purpose." It should have been made to appear that a part of the water power involved in this contention is crested by a dam built by private persons, The compensation act of 1875 (18 Stat. at IX. The case of Kaukauna Water Power Co. v. Green Bay & M. Canal, 142 U. S. 254, 35 I.. ed. 1004, between some of the parties to this suit, and relating to water power and other rights on this river at Kaukauna, settles so many questions applicable to the case at bar that we take the liberty of making several quotations from the opinion in that case. At page 271, 35 L. ed. 1010, the court says: "It is the settled law of Wisconsin, announced in repeated decisions of its supreme court, that the ownership of riparian proprietors extends to the center or thread of the stream, subject, if such stream be navigable, to the right of the public to its use as a public highway for the passage of vessels. Jones v. Pettibone, 2 Wis. 308; Walker v. Shepardson, 2 Wis. 384, 60 Am. Dec. 423, 4 Wis. 486, 65 Am. Dec. 324; Norcross v. Griffiths, 65 Wis. 599, 56 Am. Rep. 642. In Janesville v. Carpenter, 77 Wis. 288, 8 L. R. A. 808; it is said of the riparian owner: 'He may construct docks, landing places, piers, and wharves out to navigable waters, if the river is navigable in fact; but if it is not so navigable he may construct anything he pleases to the thread of the stream, unless it injures some other riparian proprie tor, or those having the superior right to use the waters for hydraulic purposes. Subject to these restrictions, he has the right to use his land under water the same as above water. It is his private property un der the protection of the Constitution, and it cannot be taken or its value lessened or impaired, even for public use, "Without compensation" or "without due process of law," and it cannot be taken at all for anyone's private use.' With respect to such rights we have held that the law of the state, as declared by its supreme court, is controlling as a rule of property. Barney v. Keokuk. 94 U. S. 324, 24 L. ed. 224; Parker v. Bird, 137 U. S. 661, 34 L. ed. 819; Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428." As to the water power that can be appropriated as an incident to the improvement, the court says, at page 275, 35 L. ed. 1011: "The true distinction seems to be between cases where the dam is erected for the express or apparent purpose of obtaining a water power to lease to private individuals, or where in building a dam for public improvement a wholly unnecessary excess of water is created, and cases where the surplus is a mere incident to the public improvement and a reasonable provision for eecuring an adequate supply of water at all times for such improvement." Again, at page 276, 35 L. ed. 1012: "So far, however, as land was actually taken for the purpose of this improvement, either for the dam itself or for the en:bankment, or for the overflow, or so far as water was diverted from its natural course, or from the uses to which the riparian owner would otherwise have been entitled to devote it, such owner is undoubtedly entitled to compensation." These quotations clearly define and settle many of the rights of defendants in error in the case at bar. Let us apply the law thus settled to some of the established facts in this case. (1) The state supreme court found as a fact that the river between the dam and slack water below is rapids and has never been navigable. As to this part of the river the rights of riparian owners to the use of the water for hydraulic purposes, and to erect structures in the bed of the stream to develop such uses, is fully recognized by the above decision. *X. This decision goes very far towards The decision may also work a public ca- We most respectfully submit this petition to this Honorable Court, and ask it to grant a rehearing herein, and certify that in our judgments the grounds assigned therefor are meritorious and well founded in law and fact. (3) The taking by the state of the 12600 horse power found by the state supreme court to exist upon the rapids below the dam would seem to be for private purposes only, and not as an incident to the public improvement, and to be thoroughly demned by the decision which we have just quoted. John T. Fish, *Mr. Justice Shiras delivered the opinion[189] of the court: This is a petition by the defendants in error for a rehearing of the case of Green Bay & Mississippi Canal Company v. Patten Paper Company and others, decided at the present term, and reported in 172 U. S. 58 [ante, 364]. The reasons set forth in the petition and accompanying brief seem to go upon a misapprehension of the scope and meaning of the decision of this court. Thus, it is made matter of complaint that (2) The state supreme court found as this court did not deal with questions confacts that the ordinary flow of the river is cerning the division of the waters of Fox 300,000 cubic feet a minute, and that a flow river after they had spent the force or head of only a thousand cubic feet a minute is given them by the dam and canal, and had required for the use of the canal for the passed into a non-navigable portion of the purposes of navigation during the season of stream below the improvement; and it is sugnavigation. The diversion of the remain-gested that we overlooked the fact that a priing 299,000 cubic feet of flow of water per vate dam had been constructed between isminute from the riparian owners below the lands Three and Four. dam for hydraulic power would seem to be But those are questions to which the jufor the express or apparent purpose of ob- risdiction of this court does not extend, and[190] taining water power to lease to private in- hence could not be considered by us. dividuals, and not as an incident to the pub-purport of our decision was to preserve to lic improvement below the dam, viz., the the Green Bay & Mississippi Canal Company canal. the use of the surplus waters created by the dam and canal. After such waters had flowed over the dam and through the sluices, and had found their way into the unimproved bed of the stream, the rights and disputes of the riparian owners must be detercon-mined by the state courts. The Again, apprehensions are expressed lest the decision in the present case may be con strued so as to injure parties using water powers at other places in the river, and who are not represented in the present contro to the jurisdiction because the petition con- versy. We are not ready to presume that the authorities of the United States will either permit or make changes in the places where the By the eleventh section of the judiciary act surplus waters are to be used by the Green of 1789, it was expressly provided that the Bay & Mississippi Canal Company, so as to circuit courts could not take cognizance of deprive other parties of the water powers a suit to recover the contents of any promisthey have been using for so many years, un-sory note or other chose in action in favor of less such changes are found to be necessary an assignee, unless a suit might have been and proper in the regulation and delivery of prosecuted in such court to recover the said the surplus waters created by the public im- contents if no assignment had been, except in provement. But such questions are not now cases of foreign bills of exchange. The act before us. of March 3, 1875 (18 Stat. at L. 470, chap. While the courts of the state may legiti- 137), provided: "Nor shall any circuit or mately take cognizance of controversies be- district court have cognizance of any suit tween the riparian owners, concerning the founded on contract in favor of an assignee, use and apportionment of the waters flowing unless a suit might have been prosecuted in in the non-navigable parts of the stream, such court to recover thereon if no assignthey cannot interfere, by mandatory injunc- ment had been made, except in cases of promtion or otherwise, with the control of the sur-issory notes negotiable by the law merchant plus water power incidentally created by the and bills of exchange." The restriction was dam and canal now owned and operated by thus removed as to "promissory notes negotiable by the law merchant," and jurisdiction in such suits made to depend on the citizenship of the parties as in other cases. Tredway v. Sanger, 107 U. S. 323 [27: 582]. the United States. The petition for a rehearing is denied. [191] CITY OF NEW ORLEANS, Piff. in Err., v. MARY QUINLAN. By the first section of the act of March 3, 1887 (24 Stat. at L. 552, chap. 373), as corrected by the act of August 13, 1888 (25 Stat. at L. 433, chap. 866), the provision was made to read as follows: "Nor shall any circuit or district court have cognizance of (See S. C. Reporter's ed. 191-193.) Federal courts. Certificates of indebtedness, when suable in any suit, except upon foreign bills of ex- Certificates of Indebtedness made by a city and payable to bearer, being made by a corpora- [No. 343.] Submitted December 19, 1898. Decided Feb- under the law merchant, but that was imma- These certificates were payable to bearer and made by a corporation; they were transferable by delivery; they were not negotiable I States The facts are stated in the opinion. In Newgass v. New Orleans, 33 Fed. Rep. ror. Mr. Charles Louque for defendant in er- 196, District Judge Billings construed the provision thus: "The circuit court shall have no jurisdiction over suits for the recovery of the contents of promissory notes or other choses in action brought in favor of assignees or transferees except over-First, suits upon foreign bills of exchange; second, suits that might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made; third, suits upon choses in action payable to bearer and made by a corporation." This decision [191] *Mr. Chief Justice Fuller delivered the opinion of the court: This was an action brought in the circuit court of the United States for the eastern district of Louisiana by Mary Quinlan, a citizen of the state of New York, against the city of New Orleans, to recover on a number of certificates owned by her, made by the city, and payable to bearer. Defendant excepted er to the bearer. Thompson v. Perrine, 106 U. 1. An assignment of error which relates solely to the validity of a provision in a state Judgment imposing a personal liability against a nonresident of the state over whom the court had acquired no jurisdiction, for the deficiency arising on the tax sale of property, does not raise a Federal question as to the validity of the assessment upon the property. where hidden in the record a question which, If raised, would be of a Federal nature, where that question was not raised in or decided by 2. It is not enough that there may be some the state court. 8. A state statute authorizing an assessment to be levied upon property for a local improvement, and imposing upon che lotowner, who is a nonresident of the state, a personal llability to pay such assessment, is a statute which the state has no power to enact, as to enforce such personal liability would be a taking of property without due process of law and a violation of the Federal Constitution. 4. By resorting to the state court to obtain relief from such assessment and from such personal liability, such nonresident does not thereby consent or render himself liable to a Judgment against him providing for any personal liability. tractor's lien on plaintiff's property. Re- 'N ERROR to the Supreme Court of the that court affirming the judgment of the District Court of Polk County, which dismissed with costs an action brought by C. P. Dewey, a nonresident of the state, to set aside certain assessments upon his property for the paving of a street, and to enjoin proceedings for the sale, and to procure a judgment that there was no personal liability, but upheld and foreclosed a con *Statement by Mr. Justice Peckham: excess of the assessment above the amount The petition alleged that the petitioner | Various other facts were set up touching the invalidity of the assessment upon the lots, but no allegation was made attacking its validity by reason of any violation of the Federal Constitution. Under stipulation of the parties various allegations of fraud upon the part of the members of the common council, which had been included in the petition, were withdrawn, and the allegations of the petition as thus amended were not denied. The contractor who did the work of paving the street was made a party to this proceeding, and he set up a counterclaim asking that the certificates given him by the city in payment for his services, and which by statute were made a lien upon the lots abutting upon the street, might be foreclosed and the lots sold, and a personal judgment pursuant to the same statute rendered against the plaintiff in error. [No. 122.] By stipulation certain motions which were made to strike out allegations in the petition were treated as demurrers to the petition, and the case was thus placed at issue. Upon the trial the district court of Polk Argued January 11, 12, 1899. Decided Feb county gave judgment dismissing the petiruary 27, 1899. tion, with costs, and in favor of the contractor on his counterclaim, foreclosing the lien of the latter, and ordering the sale of "The court erred in holding and deciding that plaintiff was personally liable to said Des Moines Brick Manufacturing Company | tution as amounting to a' taking of property without due process of law. for so much of said special tax or assessment as could not or would not be realized by a sale of the sixty lots in question on special execution, and in ordering and adjudging that a general execution should issue against plaintiff and in favor of said Des Moines Brick Manufacturing Company for the balance of such tax or assessment; and, further, that as plaintiff was at all times a nonresident of the state of Iowa, and had no personal notice or knowledge of the assessment proceedings, that the imposition of a personal liability against him in excess of the value of all the lots was not due process of law, and was in contravention of the provisions on that subject of the Fourteenth Amendment to the Constitution of the United States, as well as in contravention of the provisions of the Constitution of the state of Iowa on the same subject." The supreme court affirmed the judgment of the district court, and plaintiff brought the case here by writ of error. This is a very different question from that embraced in the assignment of errors and argued in the supreme court of the state. It is objected on the part of the defendant in error that, as this is a review of a judg ment of a state court, this second question cannot be raised here, because it was not raised in the courts below and was not decided by either of them. Reference to the opinion of the supreme court of the state shows that it was not therein discussed or decided. If the question were only an enlargement of the one mentioned in the assignment of errors, or if it were so connected with *it in substance as[198] to form but another ground or reason for alleging the invalidity of the personal judgment, we should have no hesitation in holding the assignment sufficient to permit the question to be now raised and argued. Parties are not confined here to the same arguments which were advanced in the courts below upon a Federal question there discussed. Having, however, raised only one Federal question in the court below, can a er-party come into this court from a state court and argue the question thus raised, and also another not connected with it, and which was not raised in any of the courts below, and does not necessarily arise on the record, although an inspection of the record shows the existence of facts upon which the question might have been raised? The two questions, the one as to the invalidity of the personal judgment, and the other as to the invalidity of the assessment upon the lots, are not in anywise necessarily connected, any more than that they both arise out of the proceedings in paving the street and in levying the assessment. The assessment upon the lots might be valid, while the provision for a personal judgment might be void, each depending upon different principles; and the question as to the invalidity of the personal judgment night, as in this case, be raised and argued without in any manner touching the question as to the invalidity of the assessment upon the lots. Messrs. Andrew E. Harvey and Amasa Cobb for plaintiff in error. Mr. N. T. Guernsey for defendant in ror. 006] *Mr. Justice Peckham, after stating the facts, delivered the opinion of the court: The only one of the assignments of error made in the state supreme court, which has reference to any Federal question, is the one set forth in the statement of facts, and it will be seen that such assignment relates solely to the validity of the provision for the personal liability imposed upon plaintiff in error by the judgment of the district court. [107]* None of the other assignments of error involves any Federal question. In the brief for plaintiff in error in this court it is said that the "counsel for plain tiff in error in the state court seem to have relied upon one single proposition only as involving a Federal question, to wit: As plaintiff was at all times a nonresident of the state of Iowa, and had no personal notice or knowledge of the assessment proceedings, the imposition of the personal liability against him in excess of the value of all the lots was not due process of law, and was in contravention of the provisions upon that subject of the Fourteenth Amendment of the Constitution of the United States." The counsel, however, does not confine himself in this court solely to a discussion of the Federal question which was contained in the assignment of error above set forth, and which was argued in the court below, regarding the validity of a personal judgment; but counsel claims the further right to attack the validity of the assessment upon the lots themselves, because, as he asserts, it was laid without regard to any question of benefits, and that it exceeds the actual value of the property assessed, and that, even if permitted by the statute of Iowa, such an assessment constitutes a taking, under the guise of taxation, of private property for public use without just compensation, and is therefore void under the Federal Consti In Oxley Stave Company v. Butler County, 166 U. S. 648 [41: 1149], it was held that the Federal question must be specially taken or claimed in the state court; that the party must have the intent to invoke, for the protection of his rights, the Constitution or some statute or treaty of the United States, and that such intention must be declared in some unmistakable manner, and unless he do so this court is without jurisdiction to re-examine the final judgment of the state court upon that matter. See also Levy v. Superior Court of San Francisco, 167 U. S. 175 [42: 126]; Kipley v. Illinois, 170 U. S. 182 [42: 998]. In other words the court must be able to see clearly from the whole record that a provision of the Constitution or act of Congress is relied upon by the party who brings the writ of error, and that the right thus claimed by him was denied. Bridge Proprietors v. Hoboken Land & Improv.[199] Company, 1 Wall. 116, 143 [17: 571, 576]. In the case at bar no claim was made in the |
