preme court refused, in its consideration of | could have made in "order to submit[707 the present case on appeal before it, to re- its rulings to revision would have been to view the evidence. This decision is a part the effect of what we have stated. It was of the record on the present appeal, and also not called on to reverse its decision that by is printed in 13 Ariz. 86, supra. correct local practice the merits were not before it in order to present the merits to this court. Therefore, unless its decision on the question of practice was wrong, its refusal to make the findings desired was right. But we rarely disturb local decisions on questions of local practice, and we see no reason to do so in this instance. Therefore, so far as all the assignments of error after the first two are concerned, the judgment must be affirmed. Armijo v. Armijo, 181 U. S. 558, 561, 45 L. ed. 1000, 1002, 21 Sup. Ct. Rep. 707.

The territorial supreme court having decided it would not review the evidence, by reason of the failure of appellants to present the evidence as prescribed by its rules, and this being a matter of practice, this honorable court will not review the same. Armijo v. Armijo, supra; Sweeney v. Lomme, 22 Wall. 208, 22 L. ed. 727.

The refusal of the trial court to allow appellant's motion to strike out a part of the complaint is not reversible error.

Nemaha County v. Frank, 120 U. S. 4146, 30 L. ed. 584-586, 7 Sup. Ct. Rep. 395.

Mr. Justice Holmes delivered the opinion of the court:

This was a suit to recover possession of land conveyed by the father of the appellants to them, pending a prior suit prosecuted by the appellee to quiet title in a tract of which this land was part. Richardson v. Ainsa, 218 U. S. 289, 54 L. ed. 1044, 31 Sup. Ct. Rep. 23. The plaintiff (appellee) got a judgment for possession and damages, and the defendant took the case to the supreme court of the territory.

The errors assigned before that court seem to have been, first, the refusal of the court below to strike out a paragraph of the complaint that set up the decree in the former suit, the defendant contending that it appeared on its face to have been entered by a court having no jurisdiction; second, the overruling of a general demurrer; and besides these two, the overruling of a motion for judgment in defendant's favor, and of another motion for a new trial and in arrest of judgment, and the admission of incompetent evidence. The court declined to review the assignments other than the first two, both because they were too general and because the abstract of record before the court did not contain the evidence, and therefore it would have been necessary to examine the original transcript of the reporter's notes, contrary to the rules and practice of the court. Accordingly when the appellant moved for findings of fact in the nature of a special verdict, the motion

We see no ground for the demurrer unless it was intended to raise the same question as the motion to strike out the averments touching the previous suit. The basis of this motion was that the jurisdiction of the court where that suit was pending was ended before judgment by § 10 of act 44, 20th Leg. Assembly, 1899. By that section all actions "now pending" in the district court of Pima county, where the property in controversy is situated in the new county of Santa Cruz, "shall be transferred to the proper courts of said county of Santa Cruz for trial;" and it is made the duty of the clerks of Pima county to transmit all papers, provided that it shall not be the clerk's duty to do so until his fees and compensation allowed by the act shall have been paid or tendered to him, and until all costs due to the clerk and sheriff have been paid. The court of Santa Cruz is to acquire jurisdiction upon receipt by its clerk of the papers in the actions transferred. It was held by the supreme court-and we should follow the decision even if it were less obviously correct (Gray v. Taylor, 227 U. 8. 51, 57, ante, 413, 416, 33 Sup. Ct. Rep. 199)-that the jurisdiction of the Pima court remained until the conditions of transfer were fulfilled, and that no facts were alleged in the complaint showing that to be the case. No ground appears for disturbing the judgment below. Judgment affirmed.

was denied, and the first contention of the JAMES DONNELLY, Plff. in Err.,[708

(See S. C. Reporter's ed. 708-712.) Evidence bility. 1. Federal courts cannot take judicial notice that a stream is navigable in fact because of an apparently irregular traffic

into a penal statute to make it specifio when, as expressed, it is general only."

in times of high water only, employing In- | words of limitation cannot be introduced dian canoes, dugouts, and at certain times small steamboats and gasolene launches,especially in the face of a declaration by the legislature that such stream is not navigable.

[For other cases, see Evidence, I. d, in Digest Sup. Ct. 1908.1

Appeal opinion.

rehearing - error in original

2. The error, if any, on the part of the Federal Supreme Court in holding, when affirming a conviction in a Federal circuit court for the murder of an Indian at or near the edge of the Klamath river within the extension of the Hoopa Valley Indian Reservation, that title to the bed of such river was vested in the United States as riparian owner on a non-navigable stream by Cal. Acts of April 13, 1850, February 24, 1891, and March 11, 1891, does not require the granting of a petition for a rehearing, where the state of the record did not entitle the plaintiff in error to call upon the Supreme Court to decide the merits of the question of the navigability of the river, and its effect upon the jurisdiction of the

circuit court over the homicide.

[For other cases, see Appeal and Error, X., in Digest Sup. Ct. 1908.f

[No. 97.]

United States v. Ju Toy, 198 U. S. 253, 49 L. ed. 1040, 25 Sup. Ct. Rep. 648; United States v. Reese, 92 U. S. 218, 23 L. ed. 565; Trade-Mark Cases, 100 U. S. 82, 98, 99, 25 L. ed. 550, 553, 554; Allen v. Louisiana, 103 U. S. 80, 84, 26 L. ed. 318, 319; United States v. Harris, 106 U. S. 629, 641, 642, 27 L. ed. 290, 294, 295, 1 Sup. St. Rep. 601; Poindexter v. Greenhow, 114 U. S. 270, 302, 29 L. ed. 185, 197, 5 Sup. Ct. Rep. 903, 962; Baldwin v. Franks, 120 U. S. 678, 685, 689, 30 L. ed. 766, 768, 769, 7 Sup. Ct. Rep. 656, 763; Smiley v. Kansas, 196 U. S. 447, 455, 49 L. ed. 546, 550, 25 Sup. Ct. Rep. 289; Illinois C. R. Co. v. McKendree, 203 U. S. 514, 51 L. ed. 298, 27 Sup. Ct. Rep. 153; Chicago, M. & St. P. R. Co. v. Westby, 102 C. C. A. 65, 178 Fed. 632; Brooks v. Southern P. Co. 148 Fed. 995; Howard v. Illinois C. R. Co. 148 Fed. 1003; McCabe v. Atchison, T. & S. F. R. Co. 109 C. C. A. 110, 186 Fed. 987; Cella Commission Co. v. Bohlinger, 8 L.R.A. (N.S.) 537, 78 C. C. A. 467, 147 Fed. 425; Karem v. United States, 61 L.R.A. 437, 57 C. C. A. 486, 121 Fed. 260.

The decision to the effect that it is the

Submitted May 31, 1913. Decided June 9, law of the state of California that no rivers

ON

1913.

N PETITION for rehearing of an affirm ance of a conviction in the Circuit Court of the United States for the Northern District of California for the murder of an Indian within the extension of the Hoopa Valley Indian Reservation. Denied.

See ante, 820.

in California are navigable except those enumerated in the act of March 11, 1891, chap. 92 (Political Code, § 2349), of said state, and that the riparian owner takes to the center of stream on all rivers not enumerated in said act, thereby giving the United States title to the bed of said Klamath river, is erroneous for three reasons, to wit:

(a) That it is contrary to the rules laid down by the supreme court of California, in the cases of People ex rel. Ricks Water v. Elk River Mill & Lumber Co. 107 Cal. 224, 48 Am. St. Rep. 125, 40 Pac. 531, and Forestier v. Johnson, 164 Cal. 24, 127 Pac. 156, which rules are that the state legis lature cannot make a stream navigable by merely enacting a law declaring it to be such; and that the question of navigabil. always remains "open as a question of fact" in California.

The facts are stated in the opinion. Mr. John F. Quinn in support of the petition. Mr. L. F. Puter was on the brief: The decision of the court to the effect that a murder, by a white citizen, of an Indian on an Indian reservation within the limits of a state, is punishable under §§ 2145 and 5339 of the Revised Statutes, U. S. Comp. Stat. 1901, p. 3627, is erroneous in that it is contrary to the long-established rule of this honorable court for interpreting Fed-ity eral statutes, to wit,-"Where the language of an act is general, and broad enough to include wrongful acts without and within the constitutional power of Congress, the unconstitutional parts cannot be rejected and the constitutional parts retained in order to give effect to the statute; that

NOTE-As to what waters are navigable -see note to Willow River Club v. Wade,

42 L.R.A. 305.

On judicial notice see note to Olive v. State, 4 LRA 33.

See also Southern R. Co. v. Ferguson, 105 Tenn. 552, 80 Am. St. Rep. 908, 59 8. W. 343; Little Rock, M. R. & T. T. Co. v. Brooks, 39 Ark. 403, 43 Am. Rep. 277; Mar tin v. Bliss, 5 Blackf. 35, 32 Am. Des. 52.

(b) That it is contrary to the rule laid down in People ex rel. Harbor Comrs. v. Kerber, 152 Cal. 731, 125 Am. St. Rep. 93, 93 Pac. 878, in which the same court declared that where the public use is abandoned, such as the use of navigable waters

as a public highway, the title to the prop-river's mouth, but the locus in quo is aperty is not lost to the state, but the state proximately 25 miles from the mouth, and holds the same as a proprietor, even though it no longer holds the same as a public agent or sovereign in charge of a public

use.

See also Chicago, B. & Q. R. Co. v. Porter, 72 Iowa, 426, 34 N. W. 288; Serrin v. Grefe, 67 Iowa, 196, 25 N. W. 227; Steele v. Sanchez, 72 Iowa, 65, 2 Am. St. Rep. 233, 33 N. W. 367; Wood v. Chicago, R. I. & P. R. Co. 60 Iowa, 456, 15 N. W. 285.

(c) That it is contrary to the Constitution of the state of California, directly applied in People ex rel. Harbor Comrs. v. Kerber, supra, which provides that no gift of any state property can be made by the legislature, which would result if, by repealing an act declaring a stream navigable, the riparian owners would be given the title to the bed of the stream, which before belonged to the state.

quite beyond any possible influence of the tide. As the opinion points out, there was evidence tending to show that the stream is navigable in fact at certain seasons from Requa (near its mouth), up to and above the locus in quo. But the evidence was by no means conclusive. It showed an apparently irregular traffic, in times of high water only, employing Indian canoes, "dug-outs," and at certain times small steamboats and gasolene launches. In this state of the evidence, the trial court could not, nor can *we, take judicial notice of the stream [710 as being navigable in fact; especially in the face of a declaration by the legislature of the state that it is not navigable. United States v. Rio Grande Dam & Irrig. Co. 174 U. S. 690, 698, 43 L. ed. 1136, 1139, 19 Sup. Ct. Rep. 770.

Upon the argument, the government cited and relied upon the acts of February 24th Mr. Justice Pitney delivered the opinion and March 11th, 1891, and the decision in of the court:

A petition for rehearing is presented, which we permit to be filed in order to determine whether it ought to be entertained. 709] *The petition raises several points, only one of which is deemed worthy of mention; and that is the insistence that the court, in basing its decision herein (228 U. S. 243, 262, etc., ante, 820, 828, 33 Sup. Ct. Ren. 449) upon the California acts of February 24, 1891, chap. 14, and of March 11, 1891, chap. 92 (Political Code, § 2349), and the decision of the supreme court of that state in Cardwell v. Sacramento County, 79 Cal. 347, 349, 21 Pac. 763, to the effect that the enumeration of the navigable rivers of the state, as made by the legislature, is exclusive, and that no other rivers are navigable under the laws of California, overlooked the effect of the decisions of the supreme court of California in other cases (People ex rel. Ricks Water Co. v. Elk River Mill & Lumber Co. 107 Cal. 221, 224, 48 Am. St. Rep. 125, 40 Pac. 531; Forestier v. Johnson, 64 Cal. 24, 127 Pac. 156; and People ex rel. Harbor Comrs. v. Kerber, 152 Cal. 731, 125 Am. St. Rep. 93, 93 Pac. 878), and that our decision respecting the navigability of the Klamath river and state ownership of the bed thereof is so serious in its ulterior consequences that it ought not to be adhered to without further argument.

Cardwell v. Sacramento County, as showing that the state had abandoned any claim it might have had to the bed of the stream, and surrendered such rights to the riparian proprietors,—in this case to the United States, for the benefit of the Indians. Counsel for plaintiff in error did not in his brief (nor, so far as we recall, in the oral argument) make any reply to this contention, nor challenge the authority of Cardwell v. Sacramento County, or the effect of that decision upon the matter in controversy. Being unable to find that the case had been overruled or questioned, we accepted it as authoritative upon the question of state policy, with the result of concluding, upon the whole matter, that whether the river were or were not navigable in fact, its bed was to be deemed as included within the extension of the Hoopa Valley Reservation.

But the record shows that upon the trial, the plaintiff in error did not request or suggest that the question of the navigability of the river at the locus in quo should be considered as a question of fact, and disposed of accordingly. At the close of the evidence for the government, counsel moved for a dismissal of the action upon the ground that it had not been shown that the alleged offense happened within the limits of the Reservation. And at the close of all the evidence the trial court was requested to instruct the jury that the river was not

The judgment affirming the conviction of! the plaintiff in error can be sustained, within the limits of the Reservation, and however, without regard to the question thus raised. It is conceded that whether the Klamath is navigable at the place where the homicide occurred is a question of fact. Of course the tide ebbs and flows at the

that if the alleged crime was committed upon the river, the evidence had failed to establish the jurisdiction of the court to try the defendant. This insistence was repeated in different forms, but in each in

711]stance the court was in effect re-ing the merits we assumed (in favor of quested to rule as a matter of law that the Klamath river was not within the reservation. This contention was as properly attributable to the theory that the territorial limits as described in the Executive order of President Harrison, dated October 16, 1891, did not in terms include it, as to the theory that the river was not navigable. It was upon the former theory that plaintiff in error principally relied in this court. If the suggestion of excluding the river from the Reservation on the ground that it was navigable was intended to be made the subject of exception at the trial, this point should have been clearly raised; and it was not. Moreover, even assuming that the requests were intended to point to the question of navigability, they at best called upon the court to decide that question as a question of law, and not to determine it, or to have the jury determine it, as a question of fact.

The state of the record, therefore, did not entitle the plaintiff in error to call upon this court to decide the merits of the question of the navigability of the river and its effect upon the jurisdiction of the circuit court over the homicide. In discuss1088

plaintiff in error) that the question was raised by the record. But since it is now suggested that in so doing we have passed upon a question that was not adequately argued, and which in its consequences involves important interests, other than those of the plaintiff in error, we prefer to and do recall so much of the opinion as holds that "by the acts of legislation mentioned, as construed by the highest court of the state,- (a) the act of 1850, adopting the common law, and thereby transferring to all riparian proprietors (or confirming in them) the ownership of the non-navigable streams and their beds; and (b) the acts of February 24 and of March 11, 1891, declaring in effect that the Klamath river is a non-navigable stream,-California has vested in the United States, as riparian owner, *the title to the bed of the [712 Klamath, if in fact it be a navigable river." That matter, therefore, we leave undecided.

But since, as already shown, the conviction of the plaintiff in error may properly stand without regard to that question, we deem that no useful purpose would be served by further oral argument. Rehearing denied.

228 U. S.