James Donnelly v. United States

• Decision Date: 09 June 1913
• Docket Number: No. 97,97
• Citation: 33 S.Ct. 1024,57 L.Ed. 1035,228 U.S. 708
• Parties: JAMES DONNELLY, Plff. in Err., v. UNITED STATES
• Court: U.S. Supreme Court

228 U.S. 708

33 S.Ct. 1024

57 L.Ed. 1035

JAMES DONNELLY, Plff. in Err.,

v UNITED STATES.

No. 97.

Submitted May 31, 1913.

Decided June 9, 1913.

Mr. John F. Quinn in support of petition.

Mr. Justice Pitney delivered the opinion 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.

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., 57 L. ed. ——, 33 Sup. Ct. Rep. 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, 164 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.

The judgment affirming the conviction of the plaintiff in error can be sustained, 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 river's mouth, but the locus in quo is approximately 25 miles from the mouth, and 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 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. 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 and March 11th, 1891, and the decision in 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...