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Opinion of the Court.

tions 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 seventy-six 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 be tween 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


Fussell v. Hughes, 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 case No. 147, and was

Opinion of the Court.

brought for a part of the lands covered by the same entry and survey, and prayed for the same relief. The same defences were pleaded. It follows, from what has been said in the above case, 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 she prays to be put in possession. The decree of the Circuit Court by which the bill was dismissed was, therefore, right.

Decree affirmed.



Submitted November 4, 1884.- Decided March 2, 1885.

The act of March 6, 1820, 3 Stat. 545, admitting Missouri into the Union left

the rights of riparian owners on the Mississippi River to be settled accord.

ing to the principles of State law. The act of June 12, 1866, § 9, 14 Stat. 63, relinquishing to the city of St. Louis

the rights of the United States in wharves and thoroughfares, did not authorize the city to impair the rights of other riparian proprietors by extend

ing streets into the river. This case presents no Federal question to give jurisdiction to the court, and is

distinguished from Railway Co. v. Renwick, 102 U. S. 180.

This was a motion to dismiss for want of a Federal question to give jurisdiction.

Mr. Nathaniel Myers for the motion.

Mr. Leverett Bell opposing.

Mr. CHIEF JUSTICE WAITE delivered the opinion of the court.

The question on which this case turned below was whether Myers, the lessee of 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

Opinion of the Court.

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 re verse 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, Act of March 6, 1820, ch. 22, 3 Stat. 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, ch. 116 $ 9, 14 Stat. 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 thorough fares" 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. 180, 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 $ 5254 Rev. Stat., could claim

Statement of Facts,

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, bad prescribed certain conditions on which the owners of saw-mills on the Mississippi River might erect piers and cribs in front of their prop erty, 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 granted.

BROWN, Administratrix, v. UNITED STATES.


Argued January 18, 1885. -Decided March 2, 1885.

In case of ambiguity in a statute, contemporaneous and uniform executive

construction is regarded as decisive. The provisions of the act of August 3, 1861, ch. 42, § 23, 12 Stat. 291, relating

to the retirement of officers of the navy, having been uniformly held, by the officers charged with their execution, to be applicable to warrant officers, are

now held to be so applicable. The act of July 15, 1870, 16 Stat. 321, did not abolish the furlough pay list ;

and an order after the passage of that act retiring a naval officer on furlough

pay was made in pursuance of law. The administrator of a retired naval officer cannot, in order to recover from the

United States an increase in the compensation of his intestate, take advantage of an alleged defect in the proceedings by which he was retired, and

which he acquiesced in without objection during his lifetime. $ 1588 Rev. Stat. does not apply to officers retired on furlough pay. Officers of the navy on the retired list are not entitled to longevity pay.

Thornley v. United States, ante, 310, affirmed.

James Brown, the intestate of the appellant, was a boatswain in the United States navy. The petition in this case was filed against the United States by the administratrix of his estate in

Opinion of the Court,

the Court of Claims to recover a balance of pay which she alleged was due to Brown at his death. The Court of Claims found the following facts: Brown, the decedent, was appointed, a boatswain in the navy of the United States, January 4, 1862. On October 22, 1872, the Naval Retiring Board, before which he had been ordered by the Secretary of the Navy under the provisions of $ 23 of the act of August 3, 1861, 12 Stat. 291, reported that he was incapacitated from performing the duties of his office, and that there was no evidence that such incapacity was the result of any incident of the service. He was accordingly, upon the day last mentioned, by order of the President, retired on furlough pay. From October 22, 1872, to June 30, 1875, Brown received pay at the rate of $900 per annum, and from July 1, 1875, to June 6, 1879, at the rate of $500 per annum. On the day last named he died.

The court further found that the acts of August 3, 1861, 12 Stat. 28,7, and of December 21, 1861, 12 Stat. 329, were soon after their enactment construed by the President and Navy Department to include warrant officers, and under that construction it had been the uniform practice of the President to place warrant officers on the retired list, and large numbers of these officers had been so retired. No protest or objection was made by Brown during his lifetime either to his retirement or rate of pay. The accounting officers of the treasury had uniformly held that longevity pay to retired officers was not authorized by $ 1593 of the Revised Statutes.

From these findings of fact the Court of Claims deduced, as a conclusion of law, that Brown was legally placed on the retired list, and had received the full amount of pay allowed him by law, and was not entitled to recover, and entered judgment dismissing the petition. The appeal of the petitioner brings that judgment under review.

Mr. John Paul Jones and Mr. Robert B. Lines for appellant. Mr. Solicitor-General for appellee.

MR. JUSTICE Woods delivered the opinion of the court. He recited the facts in the foregoing language, and continued :

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