the president upon surveys so returned, and no patent could issue on any survey not so returned. It cannot be conceived that congress, by the omission of the word 'general" before the words "land-office," intended to reverse this policy which it had persistingly adhered to through 15 different statutes and for nearly three generations, and thus to unsettle the titles to land in a large and densely peopled territory. Nor can we impute to congress the incongruity of using the words "landoffice," and the words "the office of the principal surveyor of said district," in contiguous sections of the same act, to mean the same thing. But all doubt, if any existed, of the true meaning of the words "land-office" in the section under consideration is removed by the fact that the section is plainly in substance and effect a re-enactment of the act of March 3, 1855, which provided in terms for the return of surveys to the general land-office. The plaintiff further insists that the first and second sections of the act of May 27, 1880, repeal by implication the third section of the act of March 23, 1804. There is no ground for such a contention. It is most unreasonable to suppose that congress intended, by doubtful inference, to repeal the salutary provision of section 4 of the act of 1804, which, in numerous enactments, it had cautiously preserved for a period of 76 years, and on which the titles to a vast domain rested. The object of the first and second sections of the act of May 27, 1880, was not to confer new rights, but to preserve rights already vested from impairment by any construction which might be placed on the act of February 18, 1871, by which the unsurveyed and unsold lands in the Virginia military district were ceded to the state of Ohio. But it is enough to say that there is no inconsistency between the two enactments, one of which is said to repeal the other. There can, therefore, be no repeal by implication. It follows that the plaintiff can derive no aid from any act of congress passed since the first day of January, 1852. On that day all interest and estate of the heirs of Archibald Gordon in the lands covered by his entry recorded on January 1, 1823, and his survey recorded on November 6, 1824, ceased and determined. The plaintiff, therefore, has failed to make good her averment that she has an equitable estate in fee-simple to the premises in controversy. She has therefore shown no right to the relief prayed by her bill. It is immaterial whether the patent of Gregg, under which the defendants claim, was valid or void. The plaintiff, having no title, can have no relief against them. The defendants, being in possession, are entitled to retain possession until ousted by one who has the title. The decree of the circuit court, by which the bill was dismissed, was therefore right, and is aflirmed. (113 U. S. 565) FUSSELL v. HUGHES and others.1 Appeal from the Circuit Court of the United States for the Northern District of Ohio.❤ The bill in this case was also filed November 20, 1879. It was based on the same alleged title as that in Fussell v. Gregg, ante, 631, and was brought for a part of the lands covered by the same entry and survey, and prayed for the same relief. The same defenses were pleaded. It follows, from what has been said in Fussell v. Gregg, supra, that this suit is not within the jurisdiction of a court of equity, and that the plaintiff has no right whatever to the lands to which she seeks to establish title, and of which sho prays to be put in possession. The decree of the circuit court by which the bill was dismissed was therefore right. Decree affirmed. 1 S. C. 8 Fed. Rep. 384. (113 U. S. 566) CITY OF ST. LOUIS v. MYERS. RIPARIAN RIGHTS-STATE OF MISSOURI-ACTS OF CONGRESS. The act of congress of June 12, 1866, c. 116, 9, (14 St. 63,) did not, any more than did the act admitting Missouri into the Union,-March 6, 1820, c. 22, (3 St. 545,)—. purport to authorize the city of St. Louis to impair the rights of other riparian proprietors by extending streets into the river. In Error to the Supreme Court of the State of Missouri. On motion to dismiss. Nathl. Myers, for the motion. Leverett Bell, in opposition. WAITE, C. J. The question on which this case turned below was whether Myers, the lessee of the property situated on the bank of the Mississippi river, within the city of St. Louis, which had been improved with a view to its use, and was used in connection with the navigation of the river, could maintain an action against the city for extending one of its streets into the river so as to divert the natural course of the water and destroy the water privileges which were appurtenant to the property. The supreme court of the state decided that he could; and to reverse that decision this writ of error was brought. We are unable to discover that any federal right was denied the city by the decision which has been rendered. The act of congress providing for the admission of Missouri into the Union,-March 6, 1820, c. 22, (3 St. 545,)—and which declares that the Mississippi river shall be "a common highway, and forever free," has been referred to in the argument here, but the rights of riparian owners are nowhere mentioned in that act. They are left to be settled according to the principles of state law. Certainly there is nothing in the provisions of the act from which a right can be claimed by the city of St. Louis, even though it be the owner of the bed of the river, to change the course of the water as it flows to the injury of those who own lands on the banks. This act was not mentioned in the pleadings, and, so far as we can discover, it was not alluded to in the opinions of either of the courts below, except for the purpose of showing that the Mississippi river was in law a navigable stream. By an act passed June 12, 1866, c. 116, § 9, (14 St. 63,) congress relinquished to the city of St. Louis all the right, title, and interest of the United States "in and to all wharves, streets, lanes, avenues, alleys, and of the other public thoroughfares" within the corporate limits; but this did not, any more than the act providing for the admission of Missouri into the Union, purport to authorize the city to impair the rights of other riparian proprietors by extending streets into the river, and neither in the court below nor here has there been any provision referred to which it is claimed has that effect. The case of Railway Co. v. Renwick, 102 U. S. 182, was entirely different from this. There the question was whether the owner of a saw-mill on the bank of the Mississippi river, who had improved his property by erecting piers and cribs in the river under the authority of a statute of Iowa, but without complying with the provisions of section 5254 of the Revised Statutes of the United States, could claim compensation from the railroad company for taking his property in the river for the construction of its road. The company claimed that, as congress, in the exercise of its jurisdiction over the navigable waters of the United States, had prescribed certain conditions on which the owner of saw-mills on the Mississippi river might erect piers and cribs in front of their property, the statute of Iowa, under which Renwick had made his improvements, was void. This we held presented a federal question and gave us jurisdiction; but nothing of that kind appears in this record. On the whole we are satisfied that no case has been made for our jurisdiction, and the motion to dismiss is consequently granted. 899. (113 U. S. 594) AYERS and another v. WATSON. 1. REMOVAL OF CAUSE--JURISDICTION-OBJECTION BY REMOVING PARTY. Upon the removal of a cause from a state to a federal court, objection to the jurisdiction of the latter court cannot be raised by the party at whose instance the removal was effected. 2. SAME-FILING OF PETition Therefor-Time ALLOWED. The act of 1866, as codified in Rev. St. ? 639, cl. 2, allows the petition for removal to be filed "at any time before the trial or final hearing of the cause." This language applies to the last and final hearing. A mistrial by disagreement of jury does not take away the right of removal. 8. DISPUTED Boundary-SURVEYOR'S FIELD-NOTES-MONUMENTS-JURY. If a surveyor's field-notes call for "two hackberry trees" as landmarks or monuments, and years afterwards two such trees are discovered at the distance named in the field-notes, and bearing traces of the marks surveyors are accustomed to make, it is for the jury to determine, from all the circumstances, whether the trees so discovered are the identical ones intended by the surveyor as landmarks. INSTRUCTIONS OF COURT-LACK OF DISTINCTNESS OF CHARGE AS TO IMPORTANT POINT. Upon examination of instructions of court below, held, that there was error in not putting it to the jury with sufficient distinctness that the course and distance of the first two lines of the survey must govern, if the evidence was not sufficient to fix the location of the northern line by identifying the two hackberry trees with those called for in the field-notes for the north-east corner of the survey, or by some other marks or monuments. In Error to the Circuit Court of the United States for the Western District of Texas. son. W. W. Boyce, for plaintiff in error. L. W. Goodrich, for defendant in error. *BRADLEY, J. This was an action of trespass to try title of certain land in Bell county, Texas, originally brought in the district court of said county by Watson, the defendant in error, against the plaintiffs in error and one AnderThe land claimed was described in the petition as a tract lying in said* county of Bell, about 15 miles north-east by north from the three forks of Little river, stating the boundaries. The defendants excepted to the petition for insufficiency of law, and also pleaded not guilty. One of them, Frank Ayers, pleaded specially that he was owner in fee-simple of a tract of 11 leagues, granted by the government of Coahuila and Texas to Maximo Moreno, in the year 1833, describing its metes and bounds; and he alleged that the land described in the plaintiff's petition, and claimed by him under some pretended patent from the state of Texas to the heirs of one W. W. Daws, deceased, was embraced within the boundaries of said 11-league grant, which was an elder and superior title. Anderson pleaded separately that he was occupying the Moreno grant as tenant of Ayers; and especially that 100 acres, including improvements, where he resided, (describing its situation,) was held by him under said Moreno title; that he had been in possession of said land for more than 12 months before the institution of this suit, adversely and in good faith; and he claimed the value of his improvements if the court should hold the plaintiff entitled to recover. The plaintiff's original petition was filed in August, 1877, and the amended petition and pleas were filed in April, 1879. The cause was first tried in April, 1879, and again in April, 1880, and on both occasions the juries disagreed. Ayers then presented a petition for the removal of the cause to the circuit court of the United States, alleging that he was a citizen of the state of Mississippi, and that the plaintiff was a citizen of Texas, and that there could be a final determination of the controversy, so far as he was concerned. without the presence of the other defendants as parties in the cause. The court granted the petition, and the cause was removed, no objection to the removal being made either then or in the circuit court afterwards. But after the issuing of the present writ of error from this court, the plaintiffs in erV.5s-41 ror, at the instance of one of whom (Frank Ayers) the cause was removed, assigned for error, among other things, that the circuit court erred in taking jurisdiction of the cause. In view of the position of the party who raises the objection, we certainly should not feel disposed to reverse the judgment on the ground of the removal of the cause, unless it was clear that the circuit court had no jurisdiction whatever to hear and determine it. The only rea sons assigned before us for the want of jurisdiction are-First, that it did not appear that the matter in dispute exceeded, exclusive of costs, the value of $500; secondly, that the application for removal was too late. The first reason has no foundation in fact. The plaintiff's petition demanded the recovery of the land and $500 damages. This was certainly a demand for more than $500, unless it can be supposed that the land itself was worth nothing at all, which will hardly be presumed. The second reason is more serious. The application for removal was beyond question too late according to the act of 1875, though not so under the act of 1866 as codified in Rev. St. § 639, cl. 2, which allows the petition for removal to be filed "at any time before the trial or final hearing of the cause." This language has been held to apply to the last and final hearing. A mistrial by disagreement of the jury did not take away the right of removal. See Insurance Co. v. Dunn, 19 Wall. 214; Stevenson v. Williams, Id. 572; Vannevar v. Bryant, 21 Wall. 41; Railroad Co. v. McKinley, 99 U. S. 147. But we have held that this clause of section 639 was superseded and repealed by the act of 1875. Hyde v. Ruble, 104 U. S. 407, 410; King v. Cornell, 106 U. S. 395: S. C. 1 Sup. CT. REP. 312; Holland v. Chambers, 110 U. S. 59; S. C. 3 SUP. CT. REP. 427. We are compelled, therefore, to examine the effect of the act of 1875 upon the jurisdiction of the court when the application is made at a later period of time than is allowed by that act. By section 2 of the act of 1875 any suit of a civil nature, at law or in equity, brought in a state court, where the matter in dispute exceeds the value of $500, and arising under the constitution or laws of the United States, or in which the United States is plaintiff, or in which there is a controversy between citizens of different states, or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens or subjects, either party may remove said suit into the circuit court of the United States for the proper district, and when in any such suit there is a controversy wholly between citizens of different states, which can be fully determined as .between them, one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit to the circuit court of the United States for the proper district. This is the fundamental section, based on the constitutional grant of judicial power. The succeeding sections relate to the forms of proceeding to effect the desired removal. By section 3 it is provided that a petition must be filed in the state court before or at the term at which the cause can be first tried, and before the trial thereof, for the removal of the suit into the circuit court, and with such petition a bond, with condition, as prescribed in the act. The second section defines the cases in which a removal may be made; the third prescribes the mode of obtaining it, and the time within which it should be applied for. In the nature of things, the second section is jurisdictional, and the third is but modal and formal. The conditions of the second section are indispensable, and must be shown by the record; the directions of the third, though obligatory, may, to a certain extent, be waived. Diverse state citizenship of the parties, or some other jurisdictional fact prescribed by the second section, is absolutely essential, and cannot be waived, and the want of it will be error at any stage of the cause, even though assigned by the party at whose instance it was committed. Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379; S. C. 4 Sup. CT. REP. 510. Application in due time, and the proffer of a 269. 869. proper bond, as required in the third section, are also essential if insisted on, but, according to the ordinary principles which govern such cases, may be waived, either expressly or by implication. We see no reason, for example, why the other party may not waive the required bond, or any informalities in it, or informalities in the petition, provided it states the jurisdictional facts; and if these are not properly stated, there is no good reason why an amendment should not be allowed, so that they may be properly stated. So, as it seems to us, there is no good reason why the other party may not also waive the objection as to the time within which the application for removal is made. It does not belong to the essence of the thing; it is not, in its nature, a jurisdictional matter, but a mere rule of limitation. In some of the older cases the word "jurisdiction" is often used somewhat loosely, and no doubt cases may be found in which this matter of time is spoken of as affecting the jurisdiction of the court. We do not so regard it. And since the removal was effected at the instance of the party who now makes the objection, we think that he is estopped. In Railroad Co. v. Koontz, 104 U. S. 17, we held that where the state court disregarded a petition for removal properly made, and the plaintiff continued to prosecute the suit therein, he would be deemed to have waived any objection to the delay of the defendant in entering the cause in the circuit court of the United States until the decision of the state court is reversed. We do not think that this assignment of error is well taken. The case, on its merits, depends upon the correctness of the instructions given to the jury. By agreement of the parties, the patents or grants under which they respectively claimed, as set forth in the petition and answer, and their deraignment of title under the same, were admitted on the trial, and the controversy was reduced to the simple question of locating the surveys on the ground. The tract claimed by the plaintiff, Watson, was one-third of a league, patented to the heirs of Walter W. Daws, and its position was well ascertained and defined; and the question was whether it was or was not embraced in the older survey of the 11-league grant, owned by the defendant Ayers, which was described in the field-notes of the grant as follows, viz.: "Situated on the left margin of the river San Andres, below the point where the creek called Lampassas enters said river on its opposite margin, and having the lines, limits, boundaries, and landmarks following, to-wit: Beginning the survey at a pecan (nogal) fronting the mouth of the aforesaid creek, which pecan serves as a landmark for the first corner, and from which 14 varas to the north 59 deg. west there is a hackberry 24 in. dia., and 15 varas to the south 34 deg. west there is an elm 12 in. dia., a line was run to the north 22 deg. east 22,960 varas, and planted a stake in the prairie for the second corner. Thence another line was run to the south 70 deg. east, at 8,000 varas crossed a branch of the creek called Cow creek, at 10,600 varas crossed the principal branch of said creek, and at 12,580 varas two small hackberries serve as landmark for the third corner. Thence another line was run to the south 20 deg. west, and at 3,520 varas crossed the said Cow creek, and at 26,400 varas to a tree (palo) on the aforesaid margin of the river San Andres, which tree is called in English box-elder,' from which 7 varas to the south 28 deg. west there is a cotton-wood with two trunks, and 16 varas to the south 11 deg. east there is an elm 15 in. dia. Thence following up the river by its meanders to the beginning point, and comprising a plane area of eleven leagues of land or 275 millions of square varas." This tract extended backward from the river, in a northerly direction, from 12 to 14 miles, and, as that was about the distance from the river of the tract claimed by the plaintiff, the question was whether it embraced the latter. If it did, being held by an elder title, the defendant would be entitled to the verdict; if not, the plaintiff would be entitled to it. Under the concessions made by the parties the burden of proof was devolved upon the defendant to show |