Opinion of the Court.

The railroad, under such circumstances, in giving the invitation, must necessarily be presumed to have taken into view the state of mind and of conduct which would be engendered by the invitation, and the passenger, on the other hand, would have a right to presume that in giving the invitation the railroad itself had arranged for the operation of its trains with proper care. The doctrine finds a very clear expression in a passage in the opinion in the Terry case, already referred to, where it was said (p. 342):

"It may be assumed that a railroad corporation, in the exercise of ordinary care, so regulates the running of its trains that the road is free from interruption or obstruction where passenger trains stop at a station to receive and deliver passengers. Any other system would be dangerous to human life, and impose great risks upon those who might have occasion to travel on the railroad."

When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. Grand Trunk Railway v. Ives, 144 U. S. 408, 417; Baltimore & Ohio Railroad v. Griffith, 159 U. S. 603, 611; Texas & Pacific Railway v. Gentry, 163 U. S. 353, 368. A like doctrine was thus expressed by the Supreme Court of Pennsylvania in Pennsylvania Railroad Co. v. White, 88 Penn. St. 327, 333, a case in many respects analogous to the present one:

'Negligence has been defined to be 'the absence of care according to the circumstances,' and is always a question for the jury when there is reasonable doubt as to the facts, or as to the inferences to be drawn from them. When the measure of duty is ordinary and reasonable care, and the degree of care varies according to circumstances, the question of negligence is necessarily for the jury."

We think the case presented by the record is not one where the facts inferable from the evidence were such that all reasonable men would, of necessity, draw the same conclusion from them, and the question of negligence was not, therefore, one of law for the court.

Statement of the Case.

It is, therefore, ordered that the judgment be

Reversed, and the case remanded, with directions to grant a new trial, and for further proceedings in conformity to law.

MR. JUSTICE BREWER is of the opinion that the deceased was guilty of contributory negligence.

ST. ANTHONY FALLS WATER POWER COMPANY

v. ST. PAUL WATER COMMISSIONERS.

MINNEAPOLIS MILL COMPANY v. SAME.

Nos. 23, 24. Argued October 13, 14, 1897. Decided November 29, 1897.

The rights of riparian owners of land situated upon navigable rivers are to be measured by the rules and decisions of the courts of the State in which the land is situated, whether it be one of the original States or a State admitted after the adoption of the Constitution.

The Mississippi is a navigable river at all the points referred to in the records in these cases.

The grants made to the plaintiffs in error by the acts of February 26, 1856, and February 27, 1856, of the legislature of the Territory of Minnesota, to maintain dams and sluices in the Mississippi River, etc., etc., were subject at all times to the paramount right of the public to divert a portion of the waters for public uses, and to the rights in regard to navigation and commerce existing in the General Government, under the Constitution of the United States; and under those grants the plaintiffs in error took no contract rights which have been impaired in any degree by the acts of the legislature of Minnesota respecting the public waterworks of the city of St. Paul.

THESE actions were brought in a District Court of the State of Minnesota, by the respective plaintiffs in error against the defendant in error for the purpose of recovering damages for injury to their alleged rights as riparian owners and otherwise, at St. Anthony Falls on the Mississippi River, and also for a perpetual injunction enjoining the defendant in error from diverting the waters above so as to prevent them from flow

Statement of the Case.

ing in their natural course in the Mississippi River and down to the water power of the plaintiffs in error respectively.

The plaintiff in error, the St. Anthony Falls Water Power Company, was incorporated by an act of the Territory of Minnesota, approved on the 26th day of February, 1856, c. 137, p. 215. The first eight sections of the act relate to the incorporation of the company and to its internal affairs. The

ninth section reads as follows:

"SEC. 9. The said corporators are hereby authorized for the purpose of the improvement of the water power above and below the Falls of Saint Anthony, in the Mississippi River, to maintain the present dams and sluices, and construct and maintain dams, canals and water sluices, erect mills, buildings or other structures for the purpose of manufacturing in any of its branches, or improving any water power owned or possessed by said company, in such manner or to such extent as shall be authorized by the directors of said company, and may construct dams on the rapids above or below the Falls of Saint Anthony, with side dams, sluices and all other improvements in the Mississippi River, upon the property owned or to be owned by said corporators, which may be necessary for the full enjoyment of the powers herein granted: Provided, however, That said corporation shall give a free passage for all loose logs that are to be manufactured on Hennepin or Cataract Islands, or between them on the falls through any dam or dams they may erect, on the west side of Nicollet or Hennepin Islands, and the passage through the pond, above said dam, shall, when needed, be twenty feet wide: Provided, That nothing herein contained shall be so construed as to authorize said corporation to interfere with the rights of property of any other person or persons whatever."

The Minneapolis Mill Company was also incorporated by an act of the legislature of the Territory of Minnesota, approved February 27, 1856, c. 145, p. 236, the ninth, eleventh and twelfth sections of which read as follows:

"SEC. 9. The said corporators are hereby authorized, for the purpose of the improvement of the water power above and

Statement of the Case.

below the Falls of St. Anthony in the Mississippi River, to maintain the present dams and sluices, and to construct dams, canals and water sluices, erect mills, buildings or other structures for the purpose of manufacturing in any of its branches, or improving any water power owned or possessed by said company, in such manner and to such extent as shall be authorized by the directors of said company, and may construct dams on the rapids above or below the Falls of St. Anthony, with side dams, sluices and all other improvements in the Mississippi River which may be necessary for the full employment of the powers therein granted."

"SEC. 11. This act shall take effect and be in force from and after its passage, and may be amended by any subsequent legislative assembly, in any manner not destroying or impairing the vested rights of said corporators: Provided, That nothing herein contained shall be so construed as to authorize said corporation to interfere with the rights or property of any other person or persons whatever.

"SEC. 12. Provided further, That nothing contained in the act entitled an act to incorporate the St. Anthony Falls Water Power Company shall be so construed as to allow the said St. Anthony Falls Water Power Company to maintain or construct dams or sluices extending beyond the centre of the channel of the Mississippi River from the western bank of Hennepin Island, and said St. Anthony Falls Water Power Company are hereby restricted in the exercise of powers and privileges granted by the ninth section of said act to the space between the western bank of said island and the centre of said river: Provided, The said dam shall always be provided with suitable slides and sluices, so as to admit the passage of logs and timber down the Mississippi River, and that any future legislature may amend or modify this act or the act to which this section is amendatory: And provided further, That the Minneapolis Mill Company shall be restricted in its operations to the centre of the main channel of the Mississippi River and to the property belonging to said company.'

By the second section of the act of Congress, approved February 26, 1857, 11 Stat. 166, c. 60, authorizing the people

Statement of the Case.

of the Territory of Minnesota to form a State constitution, etc., it was enacted: "That the said State of Minnesota shall have concurrent jurisdiction on the Mississippi and all other rivers and waters bordering on the said State of Minnesota, so far as the same shall form a common boundary to said State and any other State or States now or hereafter to be formed or bounded by the same; and said river and waters, and the navigable waters leading into the same, shall be common highways, and forever free, as well to the inhabitants of said State as to all other citizens of the United States, without any tax, duty, impost, or toll, therefor."

Section two, article two, of the constitution of Minnesota has the same provision for the jurisdiction of the State over the Mississippi and other rivers and waters bordering on the State as is provided for in section two of the above act of Congress.

The complaints in the two cases are substantially similar, the two companies owning on different sides of the Mississippi River at about the same point, and the complaint in the case of the Minneapolis Mill Company contained the following among other allegations: It alleged the incorporation of the plaintiff in error, under the acts above mentioned, and also the incorporation of the defendant pursuant to an act of the legislature of the State of Minnesota, approved February 10, 1881, which has been amended by various acts supplemental thereto.

Plaintiff further alleged that pursuant to the provisions of its charter it acquired large tracts of land bordering upon the Mississippi River, and on the southwesterly bank thereof, lying within the present limits of the city of Minneapolis and county of Hennepin, and that by reason of the fall in said river at that point, which amounts to some seventy feet in the course of a thousand feet, there was created a natural water power of great extent and value; that the plaintiff, pursuant to the provisions of its charter and in accordance with the natural right inherent in the ownership of lands abutting upon the waters of said river, constructed dams and water sluices at great expense, for the purpose of making the water power