Opinion of the Court.

been brought against many persons or against any one or more of them, and which is brought in a state court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants into the Circuit Court of the United States, even if they file separate answers and set up different defenses from the other defendants, and allege that they are not jointly liable with them, and that their own controversy with the plaintiff is a separate one; for, as this court has often said, 'A defendant has no right to say that an action shall be several which the plaintiff seeks to make joint. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to final decision in his own way. The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings.' Pirie v. Tvedt, 115 U. S. 41, 43; Sloane v. Anderson, 117 U. S. 275; Little v. Giles, 118 U. S. 596, 600, 601; Louisville & Nashville Railroad v. Wangelin, 132 U. S. 599; Torrence v. Shedd, 114 U. S. 527, 530; Connell v. Smiley, 156 U. S. 335, 340.”

In Railroad Company v. Wangelin it was said to be equally well settled "that in any case the question whether there is a separable controversy which will warrant a removal is to be determined by the condition of the record in the state court at the time of the filing of the petition for removal, independently of the allegations in that petition or in the affidavit of the petitioner unless the petitioner both alleges and proves that the defendants were wrongfully made joint defendants for the purpose of preventing a removal into the Federal court." In that case the declaration charged two corporations with having jointly trespassed on the plaintiff's land, and it was insisted that one of the corporations was not in existence at the time of the alleged trespass, but that was held to be a question on the merits.

And in Provident Savings Life Assurance Society v. Ford, 114 U. S. 635, it was held that the question of a colorable assignment was matter of defence and not ground for removal.

The contention of counsel is that this complaint charged neither direct nor concurrent nor concerted action on the part

Opinion of the Court.

of all the defendants, but counted merely on the negligence of the employés.

If the complaint should be so construed, the question would still remain whether the cause of action was not entire as the case stood, and the objection of the difference in the character of the liability matter of defense, which might force an election, or defeat the action as to one of the parties.

The cause of action manifestly comprised every fact which plaintiff was obliged to prove in order to obtain judgment, or, conversely, every fact which defendants would have the right to traverse. And on the principle of the identification of the master with the servant, it would seem that there was no fact which the company could traverse which its codefendants, being its employés, could not. At all events a judgment against all could not afterwards be attacked for the first time on this ground.

But does the complaint bear the construction the company puts upon it?

The pleader did not set forth, and, according to the decision of the Court of Appeals, this was not material, the specific acts of negligence complained of. It was stated that the negligence of the corporate defendant was done by and through its said servants and other of its servants then and there in its employment, and said negligence was the joint negligence of all the defendants." Assuming this averment to be inconsistent with a charge of direct action by the company, it may nevertheless be held to amount to a charge of concurrent action when coupled with the previous averment that Dixon was killed while crossing the track at a turnpike crossing by the negligence of the company and the other defendants in charge of the train. The negligence may have consisted in that the train was run at too great speed, and in that proper signals of its approach were not given; and if the speed was permitted by the company's rules, or not forbidden, though dangerous, the negligence in that particular and in the omission of signals would be concurrent. Other grounds of concurring negligence may be imagined. And where concurrent negligence is charged the controversy is not separable.

Opinion of the Court.

In Whitcomb v. Smithson, 175 U. S. 635, the action was brought in the state court against one railway company and the receivers of another to recover for personal injuries inflicted by concurrent negligence. The cause was removed to the Circuit Court and remanded because there was no separable controversy. At the close of the evidence on the subsequent trial the company moved that the jury be instructed to return a verdict in its favor, which was resisted by plaintiff, but granted by the court, and a verdict returned accordingly. The other defendants, the receivers, then applied for a removal, which was denied. We held the ruling in favor of the company was a ruling on the merits and not a ruling on the question of jurisdiction, and sustained the action of the state courts.

Chicago, Rock Island &c. Company v. Martin, 178 U. S. 245, is another case in which an action for concurrent negligence was held not to present a separable controversy.

In Powers v. Chesapeake & Ohio Railway Company, supra, where the company and its employés had been jointly sued as in the case at bar, the case had been remanded on removal for want of separable controversy. Plaintiff subsequently discontinued the action as to all the defendants except the company, and the company again made application to remove. This was

denied by the state court but granted by the Circuit Court, and the judgment of the latter was affirmed by this court, the question of separable controversy being necessarily not passed on here. 169 U. S. 92.

Plymouth Gold Mining Company v. Amador & Sacramento Canal Company, 118 U. S. 264, and Connell v. Utica &c. Railroad Co., 13 Fed. Rep. 241, are more in point on the precise question sought to be raised, and in the latter case Mr. Justice Blatchford expressed the opinion that it was proper for the Federal courts to follow the decisions of the state courts that a cause of action was entire.

Our conclusion is that it cannot properly be held that it appeared on the face of this pleading, as matter of law, that the cause of action was not entire, or that a separable controversy was presented.

Judgment affirmed.

Statement of the Case.

MR. JUSTICE HARLAN and MR. JUSTICE WHITE dissented.

MR. JUSTICE MCKENNA, not having heard the argument, took no part in the disposition of the case.

SCRANTON v. WHEELER.

ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN.

No. 9. Argued October 16, 1899.-Decided November 12, 1900.

The prohibition in the Constitution of the United States of the taking of private property for public use without just compensation has no application to the case of an owner of land bordering on a public navigable river, whose access from his land to navigability is permanently lost by reason of the construction, under authority of Congress, of a pier resting on submerged lands away from, but in front of his upland, and which pier was erected by the United States, not with any intent to impair the right of riparian owners, but for the purpose only of improving the navigation of such river.

It was not intended, by that provision in the Constitution, that the paramount authority of Congress to improve the navigation of the public waters of the United States should be crippled by compelling the Government to make compensation for an injury to a riparian owner's right of access to navigability that might incidentally result from an improvement ordered by Congress.

The state courts of Michigan having recognized this action as a proper one under the laws of that State for the relief sought by the plaintiff, this court has jurisdiction to consider the questions of a Federal nature decided herein.

THIS writ of error brings up for review a final judgment of the Supreme Court of Michigan holding that the United States is not required to compensate an owner of land fronting on a public navigable river when his right of access from the shore to the navigable part of such river is permanently obstructed by a pier erected in the river under the authority of Congress for the purpose only of improving navigation.

Omitting any reference to immaterial matters, the case as made by the pleadings and evidence is as follows:

Statement of the Case.

By an act of Congress approved September 26, 1850, c. 71, providing for the examination and settlement of claims for land at the Sault Ste. Marie in Michigan, the local register and receiver of the land office were authorized to report upon claims to lots at that place under instructions to be given by the Commissioner of the General Land Office. 9 Stat. 469.

In conformity with proceedings under that act the heirs of Franklin Newcomb and Samuel Peck were confirmed in their claim jointly to premises known as Private Land Claim No. 3, and a patent was issued to them by the United States on the 6th day of October, 1874. The premises were at the west or upper end of the St. Mary's Falls Ship Canal, and one of the boundaries, as shown by the field notes, was "along the right bank of the Ste. Marie River." By mesne conveyances from the heirs of Franklin Newcomb the plaintiff, Scranton, became the owner of an undivided half of the land in question.

By an act approved August 26, 1852, c. 92, Congress granted to the State of Michigan the right to locate a canal through the public lands in that State known as the military reservation at the Falls of St. Mary's River, and four hundred feet of land in width extending along the line of the canal was granted for the construction and convenience of the canal and the appurtenances thereto, the use being vested in the State for such purposes and no other. The act provided that the canal should be located on the line of the survey made for that purpose or on such other route between the waters above and below the Falls as might be selected with the approval of the Secretary of War. In aid of the construction and completion of the canal Congress also granted to the State seven hundred and fifty thousand acres of public lands, and it was provided that the canal should be and remain a public highway for the use of the United States, free from toll or other charge upon the vessels of the Government engaged in the public service or upon vessels employed in the transportation of property or troops of the United States.

10 Stat. 35.

The construction of the canal was begun by Michigan in 1853 and completed in 1855. It was owned and operated by the State until the year 1881, when it was transferred to the United