356 (245 U. S. 352) MCGOWAN et al. v. COLUMBIA RIVER PACKERS' ASS'N et al. L. Ed. 969. Thereupon, in June, 1909, the plaintiff filed a petition that the suit be dismissed without prejudice for want of juris (Argued Nov. 22, 23, 1917. Decided Dec. 17, diction, since it turned out that the land 1917.) WATERS 1. STATES 12/3) - JURISDICTION Where, pending a suit in the Western District of Washington to compel the removal of certain obstructions placed by defendants on the bottom of the channel of the Columbia River in front of fishing sites on Sand Island leased by complainant from the government, the Supreme Court decided that Sand Island was in the State of Oregon, whereupon complainant sought to dismiss the suit, the court erred in retaining the case against plaintiff's will. Appeal from the United States Circuit Court of Appeals for the Ninth Circuit. Suit by the Columbia River Packers' Association and another against H. S. McGowan and others. From a decree of the Circuit Court of Appeals for the Ninth Circuit (219 Fed. 365, 134 C. C. A. 461), reversing a judgment for defendants, and dismissing the bill, defendants appeal. Affirmed. Messrs. Bert W. Henry and Franklin T. Griffith, both of Portland, Or., for appellants. Mr. G. C. Fulton, of Astoria, Or., for appel lees. *Mr. Justice HOLMES delivered the opin ion of the Court. This is a suit brought by the appellee, the Columbia River Packers' Association, as lessee from the United States of fishing sites and riparian rights on Sand Island in the Columbia River, to compel the appellants to remove certain obstructions placed by them upon the bottom of the channel of the river in front of the plaintiff's premises, and to refrain from longer maintaining them there. Upon a bond being given a restraining order was issued on July 7, 1908; answers and a cross-bill were filed in the following August, and a demurrer to the cross-bill was over concerned was not within the district for which the Court sat. The District Court dismissed the petition and retained jurisdiction of the cause on the ground that by the Act of Congress of March 2, 1853, c. 90, § 21, 10 Stat. 172, 179, organizing the Territory of Washington, and by the Act of February 14, 1859, c. 33, § 2, 11 Stat. 383, admitting Oregon into the Union, concurrent jurisdiction on this part of the river was reserved to Washington, when it subsequently became a State. The plaintiff then filed a supplemental bill in which again it prayed that the suit might be dismissed without prejudice if the court had no jurisdiction; the case proceeded to the taking of evidence and final hearing, the temporary injunction was dissolved, an injunction was issued against the plaintiff's interfering with the defendants' appliances, and a final decree for damages caused by the temporary injunction was entered in favor of the defendants. The plaintiff appealed to the Circuit Court of Appeals, and that court, being of opinion that the bill should have been dismissed on the plaintiff's petition, reversed the decree and ordered the bill to be dismissed. 219 Fed. 365, 134 C. C. A. 461. [1] The nuisance complained of consisted of set nets, each anchored by a stone weighing about three hundred pounds to which was attached a short cable which was clamped to a wire rope about twenty-five feet long, to which in its turn was attached a buoy of large timbers. The nets were placed between the line of extreme low tide and the channel of the river; they were alleged to interfere with the exercise of the plaintiffs' rights, and an abatement of the obstruction was prayed for in the bill. We agree with the Circuit, Court of Appeals that, assuming for the "purposes of decision that the State of Washington had concurrent jurisdiction "on the Columbia," in the words of the statute (Act 1859, c. 33, § 2), Nielsen v. Oregon, 212 U. S. 315, 319, 29 Sup. Ct. 383, 53 L. Ed. 528, the jurisdiction did not extend to the removal of such a nuisance as this. It did not reach the bed of the stream, and the officers of the State would have had no authority to intermeddle with the defendants' nets anchored to the bottom. See Wedding v. Meyler, 192 U. S. 573, 585, 24 Sup. Ct. 322, 48 L. Ed. 570, 66 L. R. A. 833. This was an important part of the relief that the plaintiff sought and when it found that it could not have it, it naturally endeavored to dismiss the bill. ruled on October 21 of the same year. The suit had been brought in the Western District of Washington upon the belief that Sand Island was in Washington and subject to the jurisdiction that that State exercised in fact. But on November 16, 1908, it was decided by this Court that the boundary between Oregon and Washington was the ship channel north [2] It ordinarily is the undisputed right of of Sand Island, and that Sand Island belong- a plaintiff to dismiss a bill before the final ed to the former State. Washington v."Ore- hearing. Carrington v. Holly, 1 Dickens, gon, 211 U. S. 127, 29 Sup. Ct. 47, 53 L. Ed. 280. Cummins V. Bennett, 8 Paige, 79. 118; Id., 214 U. S. 205, 29 Sup. Ct. 631, 53 | Kempton v. Burgess, 136 Mass. 192. The dis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes In Error to the United States Circuit Court of Appeals for the Ninth Circuit. cussions have been directed more to the question of costs. When a bill was filed under a mistake common to both parties and in other Action by Frank R. Stewart against the like cases the plaintiff was allowed to dis- Southern Pacific Company. A judgment for miss his bill without costs. Lister v. Leath- plaintiff was affirmed by the Circuit Court of er, 1 DeG. & J. 361, 368 (1859). Broughton Appeals for the Ninth Circuit (233 Fed. 956, v. Lashmar, 5 My. & Cr. 136, 144 (1840). | 147 C. C. A. 630), and defendant brings error. Here the decision of this Court put the plain- On motion to dismiss. Writ of error distiff in an unexpected position. The question before the District Court was not whether the bill ought to be retained for a decree in personam if the plaintiff so desired, or even one of costs, but whether it should be retain ed against the plaintiff's will for a trial that (245 U. S. 359) SOUTHERN PAC. CO. v. STEWART. (Submitted Nov. 5, 1917. Decided Dec. 17, 1917.) 1. COURTS (No. 348.) missed. Messrs. Henley C. Booth and William F. Herrin, both of San Francisco, Cal., for plaintiff in error. Mr. Thomas Armstrong, Jr., of Phoenix, Ariz., for defendant in error. Mr. Justice DAY delivered the opinion of the Court. Frank R. Stewart began this action against the Southern Pacific Company, a common carrier, in the superior court of Arizona for the county of Maricopa. In his complaint he set out that he delivered certain cattle to the Southern Pacific Company to be carried from San Luis Obispo, California, to Phoenix, Arizona, in consideration of the freight to be paid to the company as measured by the rate applicable to the shipment and carriage of live stock in carload lots from the point of shipment to the point of destination as the 382(2)-CIRCUIT COURT OF APPEALS-FINALITY OF DETERMINATION. same was published and on file with the InJudicial Code (Act March 3, 1911, c. 231) terstate Commerce Commission. The com28. 36 Stat. 1094, as amended by Act Jan. plaint alleged that in consideration of the 20, 1914, c. 11, 38 Stat. 278 (Comp. St. 1916, § freight charges the company undertook to 1010), specifies the suits which may be removed from a state court to the United States Dis- deliver the cattle in good condition at Phoe trict Court. Section 29 (Comp. St. 1916, § nix, Arizona, and set forth that the cattle 1011) requires the application for removal to were handled and transported in such a negbe made by a petition filed in the state court. ligent and careless manner that five of them Section 128 (section 1120) makes judgments of the Circuit Court of Appeals final in cases in died in Yuma, Arizona, a station on the line which the jurisdiction depends entirely upon of the company; that the remainder were dediverse citizenship, and section 241 (section livered to the plaintiff at Phoenix, Arizona, 1218) authorizes a review by the Supreme Court in cases not made final. Held that, in such injured condition that six more of though an action to recover damages to an in- them died, and eighty-seven of them were terstate shipment of live stock might have been seriously injured, and depreciated in value removed from the state court on the ground that it arose under the laws of the United States, as a result of negligent handling and transwhere the petition for removal specified di-portation of the cattle as set forth in the comversity of citizenship as the sole ground for re- plaint. moval, the judgment of the Circuit Court of Appeals was final. ULARITY OF COURSE OF BUSINESS. Under the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [Comp. St. 1916, §§ 8604a, 8604aa]), to Interstate Commerce Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386. requiring carriers receiving property for interstate transportation to issue a receipt or bill of lading, and making the carrier liable to the lawful holder thereof for any loss, damage, or injury to the property, the presumption is that such bill of lading or receipt was issued, though there is no specific allegation to 3. REMOVAL OF CAUSES 81-TIME FOR FILING PETITION. this effect. It is essential to the removal of a cause that the petition provided for by the statute be filed with the state court within the time fixed by statute, unless the time be in some manner waived. The Chief Justice dissenting. The company upon petition and bond duly filed removed the case to the United States District Court for the District of Arizona, the same was tried in the District Court, and resulted in a verdict and judgment against the company, which was affirmed by the United States Circuit Court of Appeals for the Ninth Circuit; a writ of error brings the case here. The case is before us on motion to dismiss on the ground that the judgment of the Circuit Court of Appeals is final. The judgment of the Circuit Court of Appeals is final,, among other cases, in those in which the jurisdiction, meaning that of the District Court, is dependent entirely upon the opposite parties to the suit or controversy being citizens of different states. Judicial Code, § 128, 36 Stat. 1157. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 362 have been removed to the federal court because of the federal nature of the cause of action upon which it was brought, it was nev The removal to the District Court of the United States was made upon a petition which set forth as a ground for removal the diversity of citizenship of the parties; no oth-ertheless within the jurisdiction of the state er ground for removal was in any manner alleged in the petition. [1] A suit is removable from a state court to the United States District Court when it arises under the Constitution or laws of the United States, or treaties made under their authority, of which the District Courts of the United States are given original jurisdiction; any other suit of a civil nature at law or in equity, of which the District Courts of the United States are given jurisdiction may be removed into the District Court of the United States by the defendant, or defendants, be ing nonresidents of the state. Judicial Code, § 28. ex By the amendment of January 20, 1914, 38 Stat. 278, it is provided that no suit brought in any state court of competent jurisdiction against a railroad company, or other common carrier, to recover damages for delay, loss of, or injury to property received for transportation by such common carrier, under section 20 (which includes the Carmack Amendment) of the act to regulate interstate commerce as amended, shall be removed to any court of the United States where the amount in controversy does not exceed, clusive of interest and costs, the sum or value of $3,000. In this case the plaintiff sought to recover more than $3,000, and in view of the allegations of the complaint it may be conceded that the action being for loss or injury to cattle shipped in interstate commerce for transportation by a common carrier this suit is one which arose under a law of the United States, and might have been removed to a federal court on that*ground. See Northern Pacific R. Co. v. Wall, 241 U. S. 87, 36 Sup. Ct. 493, 60 L. Ed. 905; Georgia, F. & A. R. Co. v. Blish Mill Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948; Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U. S. 319, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265; St. Louis Iron Mt. & Southern R. R. Co. v. Starbird, Adm'r, 243 U. S. 592, 595, 596, 597, 37 Sup. Ct. 462, 61 L. Ed. 917. [2] The Carmack Amendment requires the carrier receiving property for transportation between points in different states to issue a receipt or bill of lading therefor and makes the carrier liable to the lawful holder thereof for any loss, damage or injury to such property. While there is no specific allegation in the complaint that such bill of lading or receipt was issued, as the law makes it the duty of the carrier to issue the same the presumption is that such duty was complied with. Cincinnati, N. O. & T. P. R. Co. v. Rankin, supra, 241 U. S. 319, 327, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265; N. Y. Central, etc., R. R. v. Beaham, 242 U. S. 148, 151, 37 Sup. Ct. 43, 61 L. Ed. 210. While it thus appears that the suit might court, and that court might have proceeded to final judgment had not the defendant seen fit to remove the suit to the federal court. Congress has not only provided for classes of cases wherein removal may be effected from the state to the federal courts, but has provided process by which such removals may be effected. Section 29 of the Judicial Code provides that the party desiring to remove the suit from the state court to the United States District Court may apply for removal by petition duly verified in the suit in the state court, at the time, or at any time before the defendant is required by the laws of the state or the rules of the court to answer or plead to the declaration of the plaintiff. Provision is also made for the filing of a bond requiring that the defendant shall enter in the District Court of the United States within thirty days of filing such petition a certified copy of the record in the suit, and for paying costs in the event that the United States District Court holds that such suit was improperly removed; it is then made the duty of the state court to accept the petition and bond and proceed no further in the suit. [3] It is essential to the removal of a cause that the petition, provided for by the statute, be filed with the state court within the time fixed by statute, unless the time be in some manner waived. Martin's Adm'r v. B. & O. Railroad Co., 151 U. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 311. True, there are cases in which it has been held that a removal may be accomplished after the time to answer or appear has expired, when the complainant changes the cause of action by amendment so as to make a case removable, which was not so before, as in Powers v. Chesapeake & Ohio R. R. Co., 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673. Amendments have been permitted so as to make the allegations of the removal petition more accurate and certain when the amendment is intended to set forth in proper form the ground of removal already imperfectly stated. See Kinney v. Columbia Savings, etc., Ass'n, 191 U. S. 78, 24 Sup. Ct. 30, 48 L. Ed. 103, and the review of previous cases in this court contained in the opinion in that case. The petition for removal in this instance made no reference to any ground of removal because of a cause of action arising upon a federal statute. The petition which required the state court to give up its own jurisdiction, and transfer the cause to the federal court, was based solely upon the allegation of diversity of citizenship. We are thus presented with the question whether a case removed solely upon the ground of diversity of citizenship, although the complaint contained a cause of action 364 arising under a federal statute, after judg-leged, to the use of the defendant. The case ment in the Circuit Court of Appeals, may be was removed from the state court upon a brought by a writ of error to this court. petition alleging that the controversy in the Cases not made final in the United States suit was wholly between citizens of different Circuit Court of Appeals may be brought to states. A trial was had resulting in a verdict? this court when the matter in controversy ex- in favor of the plaintiff, this judgment was ceeds $1,000 besides costs. Judicial Code, reversed by the Circuit Court of Appeals for § 241. As the amount in controversy herein the Third Circuit, and a writ of error was exceeds $1,000 the jurisdiction of this court allowed to this court. The writ of error was depends upon whether the jurisdiction of the dismissed as being within the rule which District Court, to which the cause was re- made the judgments of the Circuit Courts of moved, depended entirely upon the opposite Appeal final when the jurisdiction of the trial parties being citizens of different states. The court depended entirely upon diversity of jurisdiction referred to, it has come to be set- citizenship. Mr. Chief Justice Fuller, speaktled, means the jurisdiction of the United ing for the court, in the course of the opinStates District Court as originally invoked. | ion reached the conclusion that the case was Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, 22 Sup. Ct. 452, 46 L. Ed. 546, and previous cases in this court cited in the opinion of Mr. Chief Justice Fuller, who spoke for the court in that case. In McFadden v. United States, 213 U. S. 288, 29 Sup. Ct. 490, 53 L. Ed. 801, the subject was examined under sections 5 and 6 of the Court of Appeals Act now incorporated into the Judicial Code in sections 128 and 241. Mr. Justice Moody, who spoke for the court in that case, pointed out that finality of not to be treated as one commenced in the federal court by consent of the defendant under section 23 of the Bankruptcy Act (Comp. St. 1916, § 9607). In concluding the discussion of the subject, the Chief Justice said: "Plaintiff brought his action in the state court, and its removal on the ground of diverse it had been commenced there on that ground of citizenship placed it in the Circuit Court as if jurisdiction, and not as if it had been commenc ed there by consent of defendant under section 23 of the Bankruptcy Act. The right to removal is absolute, and cannot be trammeled by such a consequence." cases in the Circuit Court of Appeals as govIt may be conceded, for the sake of the arerned by section 6, was determined, not by gument, that the grounds of removal might the nature of the case nor by the questions of have been amended by including in the petilaw raised, but by the sources of jurisdiction tion the federal ground of action set up in of the trial court; whether its jurisdiction the complaint, but no attempt at amendment rested upon the character of the parties or was made, and the removal to the District the nature of the case, and he quoted with Court of the United States was upon a peapproval the language of Mr. Chief Justice tition resting solely on the ground of diverse Fuller in Huguley Mfg. Co. v. Galeton Cotton citizenship. We are of opinion that it folMills, supra, wherein it was said the juris-lows that the jurisdiction of the federal court diction referred to is the jurisdiction of the was invoked solely on that ground and that Circuit Court "as originally invoked." This principle was applied in Spencer v. Duplan Silk Company, 191 U. S. 526, 24 Sup. Ct. 174, 48 L. Ed. 287, in which a suit was brought by a trustee in bankruptcy in a state court against the Silk Company to recover in trover for certain lumber the property of the bankrupt wrongfully converted, it was al fact determines the right to a review in this court of the judgment of the United States Circuit Court of Appeals against the contention of the plaintiff in error. It follows that the writ of error must be dismissed. Dismissed. The CHIEF JUSTICE dissents. MEMORANDUM DECISIONS DISPOSED OF AT OCTOBER TERM, 1917 No. 83. MENASHA WOODEN WARE No. 753. John A. JESSON et al., petitionCOMPANY, plaintiff in error, v. MINNEAP-ers, v. F. G. NOYES, as Receiver of the WashOLIS, ST. PAUL & SAULT STE. MARIE ington-Alaska Bank. Dec. 10, 1917. For RAILWAY. Dec. 10, 1917. In error to the opinion below, see 245 Fed. 46. Messrs. W. H. Circuit Court of Winnebago County, State of Metson, Curtis Hillyer, and Metson, Drew & Wisconsin. For opinion below, see 159 Wis. Mackenzie, all of San Francisco, Cal., for peti130, 150 N. W. 411, L. R. A. 1915F, 732. tioners. Mr. Orion L. Rider, of Vinita, Okl., for Messrs. A. E. Thompson and J. C. Thompson, respondent. Petition for a writ of certiorari to both of Oshkosh, Wis., for plaintiff in error. the United States Circuit Court of Appeals for Messrs. William A. Hayes, of Milwaukee, Wis., the Ninth Circuit denied. and Alfred H. Bright, of Minneapolis, Minn., for defendant in error. PER CURIAM. Judgment affirmed with costs upon the authority of Armour Packing Company v. United States, 209 U. S. 56, 80, et seq., 28 Sup. Ct. 428, 52 L. Ed. 681; L. & N. R. Co. v. Mottley, 219 U. S. 467, 31 Sup. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671; Portland Railway, etc., Co. v. Railroad Commission of Oregon, 229 U. S. 397, 412, 413, 33 Sup. Ct. 820, 57 L. Ed. 1248; New York Central & Hudson River R. Co. v. Gray, 239 U. S. 583, 36 Sup. Ct. 176, 60 L. Ed. 451. No. 88. George W. EGAN, plaintiff in error, For No. 762. James B. SIMPSON, indicted as James B. Miller, petitioner, v. The UNITED STATES of America. Dec. 10, 1917. opinion below, see 245 Fed. 278. Mr. George H. Eichelberger, of Cleveland, Ohio (Messrs. Mathews, Orgill & Maschke, of Cleveland, Ohio, of counsel), for petitioner. Mr. John W. Davis, Sol. Gen., of Washington, D. C., for the United States. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied. tiff in error, v. SOUTHERN EXPRESS COM- PANY. Dec. 17, 1917. In error to the Supreme v. Charles S. McDONALD. Dec. 10, 1917. See, also, 36 S. D. 92, 153 N. W. 915. Mr. George W. Egan, of Sioux Falls, S. D., in pro. ion below, see 170 N. C. 286, 87 S. E. 136. per. Messrs. Charles O. Bailey and John H. Voorhees, both of Sioux Falls, S. D., for defend-Messrs. Lawrence Maxwell and Joseph S. Grayant in error. The provisions of rule 10 having been now complied with by the plaintiff in error, the motion to dismiss for failure to print the record is denied. The motion to continue to the next term is also denied, and the case assigned for hearing on Monday, January 28th next. No. 163. John E. ROLLER, plaintiff in error, v. Charles CATLETT, trustee. Dec. 10, 1917. In error to the Supreme Court of Appeals of the State of Virginia. For opinion below, see 118 Va. 185, 86 S. E. 909. Mr. John E. Roller, of Harrisonburg, Va., for plaintiff in error. Mr. Rudolph Bumgardner, of Staunton, Va., for defendant in error. PER CURIAM. Dismissed for want of jurisdiction upon the authority of Deming v. Carlisle Packing Co., 226 U. S. 102, 105, 33 Sup. Ct. 80, 57 L. Ed. 140; Consolidated Turnpike v. Norfolk, etc., Railway Co., 228 U. S. 596, 600, 33 Sup. Ct. 605, 57 L. Ed. 982; Stewart v. Kansas City, Kansas, 239 U. S. 14, 36 Sup. Ct. 15, 60 L. Ed. 120. No. 507. Elina SKARDERUD, plaintiff in error, v. The TAX COMMISSION OF STATE OF NORTH DAKOTA. Dec. 10, 1917. In error to the Supreme Court of the State of North Dakota. For opinion below, see Moody v. Hagen, 36 N. D. 471, 162 N. W. 704. Mr. Edward Engerud, of Fargo, N. D., for plaintiff in error. PER CURIAM. Judgment affirmed with costs upon the authority of Duus v. Brown, 245 U. S. 176, 38 Sup. Ct. 111, 62 L. Ed., this day decided. don, both of Cincinnati, Ohio, for plaintiff in error. Mr. Alexander B. Andres, Jr., for defendant in error. Dismissed with costs per stipulation. No. 601. MIDLAND VALLEY RAILROAD COMPANY, plaintiff in error, v. Mrs. Maude GRIFFITH, administratrix, etc. Dec. 17, 1917. In error to the Supreme Court of the State of Kansas. For opinion below, see 166 Pac. 467. Mr. L. T. Michener, of Washington, D. C., for plaintiff in error. PER CURIAM. Dismissed for want of jurisdiction with 5 per cent. damages upon the authority of section 237, Judicial Code, as amended by the act of Congress of September 6, 1916, ch. 448, 39 Stat. 726 (Comp. St. 1916, § 1214); 37 Sup. Ct. 402, 652, 61 L. Ed. 1378, 1369. Pe Prairie Oil & Gas Co. v. Carter, 244 U. S. 646, tition for a writ of certiorari denied October 15, 1917, 245 U. S. 653, 38 Sup. Ct. 12, 62 L. Ed. |