the shareholders provided for by § 5151 ofler of the Currency made an order in which said Statutes may be enforced by any cred- he declared that he had made an assessment itor of such association, by bill in equity in and requisition upon the shareholders, “and the nature of a creditors' bill, brought by that he did thereby make demand upon each such creditor on behalf of himself and of and every share of the capital stock of the all other creditors of the association against said association," and directed the receiver the shareholders thereof," etc.; and we are to take proceedings by suit to enforce the cited to several cases holding that claims individual liability of the shareholders. against shareholders under similar statutes Having made this allegation himself, we do do not become barred until the expiration of not understand upon what theory the plainthe time at which the claims against the tiff now assumes that no demand was made. corporation also became barred. *In the view we take of the statute of limi-[77] tations, we have not thought it worth while to consider the points made by the defendant, that the action should have been at law, and that the bill is defective for the want of proper parties. There are several answers to this position. Section 5220, to which the 2d section of the act of June 30, 1876, is supplementary, contemplates only a voluntary liquidation, providing, as it does, that "any association may go into liquidation and be closed by the vote of its shareholders owning two thirds of its stock." Richmond v. Irons, 121 U. S. 27, 47, 30 L. ed. 864, 870, 7 Sup. Ct. Rep. 788, 797. Now, the Capital National Bank did not go into voluntary liquidation, but, as averred in the bill, "the Comptroller of the Currency of the United States became and was satisfied of the insolvency of the said Capital National Banking Association," and thereupon appointed a receiver. In other [76] words, the proceedings *were taken under § 5234 as supplemented by § 1 of the act of June 30, 1876, authorizing the Comptroller of the Currency to appoint a receiver when the association had refused to pay its circulating notes and is in default, or he is otherwise satisfied of its insolvency. But it is also sufficient to say of this that the action is not brought by the creditors under the 2d section of the act of June 30, 1876, but by the receiver under Rev. Stat. § 5234. In such cases no debt becomes due to the receiver as such until a deficiency has been ascertained and an assessment made, when the statute begins to run. Scovill v. Thayer, 105 U. S. 145, 26 L. ed. 968; Hawkins v. Glenn, 131 U. S. 319, 33 L. ed. 184, 9 Sup. Ct. Rep. 739. Upon the theory of the plaintiff, if the statute of limitations were pleaded, it would become necessary for the receiver to show that there were outstanding claims against the bank which were not barred by the statute, and therefore that the bill might be maintained. This would involve a departure from the whole theory of the bill in this case, which is based upon the allegation that the Comptroller of the Currency made an assessment upon the stockholders June 10, 1893, payable July 10, from which latter date plaintiff claimed interest. Defendant demurred to this upon the ground that the bill set forth a cause of action barred by the statute, and plaintiff went to a hearing upon this demurrer and was defeated. Obviously he cannot now set up a right to recover, if the creditors had brought a bill under another statute, to which no allusion is made in the bill in this case, and which provides for a wholly separate and independent remedy. T'here was no error in the decree of the court below, and it is therefore affirmed. PEOPLE OF THE STATE OF ILLINOIS ex rel. GEORGE HUNT, Attorney General, Appt., ILLINOIS CENTRAL RAILROAD COM. (See S. C. Reporter's ed. 77-99.) Appeal-conclusiveness of prior decision on second appeal-effect of decision on subsequent proceedings in lower court-piers erected by riparian proprietors-extension beyond point of practical navigabili ty-question of fact-concurrent findings. 1. Every matter embraced by a decree of a United States circuit court, and not left open by a decree of the United States Supreme Court afirming the former decree in all respects but one, and as to that one remanding the case for further investigation of the facts upon which it depended, is conclusively determined, as between the parties, by such affirmance, and is not subject to re-examination on a second appeal. 2. 3. In determining whether piers erected in Lake Michigan by a railroad company by vir tue of its riparian proprietorship extended Into the lake beyond the point of practical navigability, having reference to the manner in which commerce in vessels is conducted on the lake, the circuit court to which the cause has been remanded for further investigation of the facts on which this question depends is not confined to the consideration of the size and capacity of vessels habitually employed on the lake at the commencement of the litigation or at the date of its original decree. Plers, docks, and wharves erected in Lake Michigan by a railroad company by virtue of its riparian proprietorship cannot be said to extend into the lake beyond the point of practical navigability, having reference to the manner in which commerce in vessels is conducted on that lake, where such structures extend no farther into the lake than is necessary to accommodate a great number of vessels of moderate capacity, and the aver Plaintiff's final contention, that no cause age depth of water at the outer line of the of action arises until a demand has been NOTE.-On the conclusiveness of prior deci made, is also fully met by the allegation of sions on subsequent appeals-see note to Has the bill that on June 10, 1893, the Comptrol-tings v. Foxworthy (Neb.) 34 L. R. A. 321. structures is insufficient for the accommoda- | Factory, 15 How. 451, 14 L. ed. 768; Sizer tion of a vast amount of commerce carried on in vessels on the lake. The facts are stated in the opinion. Mr. John H. Hamline argued the cause, and, with Messrs. Edward C. Akin, Frank H. Scott, and Frank E. Lord, filed a brief for appellant: The opinion forms a part of the mandate and this court may construe its own mandate. Re Sanford Fork & Tool Co. 160 U. S. 256, 40 L. ed. 414, 16 Sup. Ct. Rep. 291. The lower court should have looked into the opinion in construing the mandate. Ibid. It erred in construing the inquiry to relate to the date of the final decree, rather than to the time the bill was filed or the structures built. Docks built pendente lite are at builders' risk. Miller v. New York, 109 U. S. 392, 27 L. ed. 971, 3 Sup. Ct. Rep. 228. Twenty feet was declared to be beyond the line of practical navigability at Detroit, though the Michigan courts recognize the right of riparian owners to dock out in Detroit river. Grand Trunk R. Co. v. Backus, 46 Fed. 215. v. Many, 16 How. 98, 14 L. ed. 861; Peck v. Sanderson, 18 How. 42, 15 L. ed. 262; Roberts v. Cooper, 20 How. 467, 15 L. ed. 969; Whyte v. Gibbes, 20 How. 541, 15 L. ed. 1016; Ex parte Dubuque & P. R. Co. 1 Wall. 69, sub nom. Dubuque & P. R. Co. v. Litchfield, 17 L. ed. 514; Noonan v. Bradley, 12 Wall. 121, 20 L. ed. 279; Tyler v. Magwire, 17 Wall. 253, 21 L. ed. 576; Wayne County v. Kennicott, 94 U. S. 498, 24 L. ed. 260; The Lady Pike, 96 U. S. 461, sub nom. Pearce v. Germania Ins. Co. 24 L. ed. 672; Stewart v. Salamon, 97 U. S. 361, 24 L. ed. 1044; Clark v. Keith, 106 U. S. 464, 27 L. ed. 302, 1 Sup. Ct. Rep. 568; Chaffin v. Taylor, 116 U. S. 567, 29 L. ed. 727, 6 Sup. Ct. Rep. 518; Re Washington & G. R. Co. 140 U. S. 91, 35 L. ed. 339, 11 Sup. Ct. Rep. 673; Northern P. R. Co v. Ellis, 144 U. S. 458, 36 L. ed. 500, 12 Sup. Ct. Rep. 740; Gaines v. Rugg, 148 U. S. 228, sub nom. Gaines v. Caldwell, 37 L. ed. 432, 13 Sup. Ct. Rep. 611; Re Sanford Fork & Tool Co. 160 U. S. 247, 40 L. ed. 414, 16 Sup. Ct. Rep. 291; Great Western Teleg. Co. v. Burnham, 162 U. S 339, 40 L. ed. 991, 16 Sup. Ct. Rep. 850; Re Potts, 166 U. S. . 263, 41 L. ed. 994, 17 Sup. Ct. Rep. 520; Thompson v. Maxwell Land Grant & R. Co. 168 U. S. 451, 42 L. ed. 539, 18 Sup. Ct. Rep. 121. To serve a useful purpose, a wharf must reach water of sufficient depth to float vessels when laden. They must of necessity occupy a part of the stream (or lake) over which a vessel could float if they were not there. Atlee v. Northwestern Union Packet Oo. 21 Wall. 393, 22 L. ed. 620. The concurrent decisions of two courts. upon a question of fact will not be disturbed unless it is manifest that some serious or important mistake has been made in the consideration of the evidence. The burden is al ways on the appellant to show the error and the proof of error must be plain and palpable. The Carib Prince, 170 U. S. 655, sub nom. Wuppermann v. The Carib Prince, 42 L. ed. 1181, 18 Sup. Ct. Rep. 753; Stuart v. Hayden, 169 U. S. 1, 42 L. ed. 639, 18 Sup. Ct. Rep. 274; Baker v. Cummings, 169 U. S. 189, 42 L. ed. 711, 18 Sup. Ct. Rep. 767; Compania De Navigacion La Flecha v. Brauer, 168 U. S. 104, 42 L. ed. 398, 18 Sup. Ct. Rep. 12; Dravo v. Fabel, 132 U. S. 487, Whatever was presented and decided on 53 L. ed. 421, 10 Sup. Ct. 170; The Richthe former appeal in this case has become res mond, 103 U. S. 540, sub nom. The Sabine v. judicata, and the same matter between the The Richmond, 26 L. ed. 313; The Marcellus, same parties cannot be reopened and subse-1 Black, 414, sub nom. Baxter v. Camp, 17 quently considered. L. ed. 217; Morewood v. Enequist, 23 How. 491, 16 L. ed. 516. Messrs. Benjamin F. Ayer and John N. Jewett argued the cause, and, with Mr. J. M. Dickinson, filed a brief for appellee: Sibbald v. United States, 12 Pet. 488, 9 L. ed. 1167; Roberts v. Cooper, 20 How. 467, 15 L. ed. 969; Himely v. Rose, 5 Cranch, 313, 3 L. ed. 111; Skillern v. May, 6 Cranch, 267, 3 L. ed. 220; Martin v. Hunter, 1 Wheat. 304, 4 L. ed. 97; Browder v. M'Arthur, 7 Wheat. 58, 5 L. ed. 397; The Santa Maria, 10 Wheat. 431, 6 L. ed. 359; West v. Brashear, 14 Pet. 51, 10 L. ed. 350; Washington Bridge Co. v. Stewart, 3 How. 413, 11 L. ed. 658; Chaires v. United States, 3 How. 611, 11 L. ed. 749; Corning v. Troy Iron & Nail *Mr. Justice Harlan delivered the opin-[78] ion of the court: This case has been heretofore in this court. Illinois C. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018, 13 Sup. Ct. Rep. 110. The decree then under review was affirmed in all respects except one, and as to that one the cause was remanded for further investigation of the facts upon which it depended. The case involved the asserted ownership by the Illinois Central Railroad Company | scribed in the act of 1969,† *and the right—[83] of certain piers, docks, and wharves con- subject to the paramount authority of the structed by it on the lake front of the city of Chicago, east of Michigan avenue. The state contended that the structures in question were erected, without authority of law, on lands belonging to it, and that the decree now before us was erroneous in not so declaring. The railroad company contended that the mandate of this court on the former appeal left open for consideration by the circuit court only one question, namely, whether those structures extended beyond the point of practical navigability, having reference to the manner in which commerce in vessels is conducted on Lake Michigan; and that that issue of fact having been found in its favor, the circuit court could not properly have passed any other decree than one confirming the company's title to such structures. The history of the litigation relating to this property is fully disclosed in Illinois O. R. Co. v. Illinois, above cited. But it will be appropriate and will contribute to a clear understanding of the present appeal if the essential facts be restated in this opinion. In the year 1883 an information was filed in the circuit court of Cook county, Illinois, by the People of that state against the Illi. nois Central Railroad Company, the city of Chicago, and the United States of America. That case was removed into the circuit court of the United States for the northern district of Illinois, and a motion to remand it to the state court was overruled. 16 Fed. 881. In the same case the city of Chicago filed a cross bill against the state and its codefendants. At the same time there was pending in the circuit court of the United States for the same district an information [79] in equity filed by the government against the Illinois Central Railroad Company, the Michigan Central Railroad Company, the Chicago, Burlington, & Quincy Railroad Company, the Baltimore & Ohio Railroad Company, and the city of Chicago. United States in respect to the regulation of commerce between the states-to fill the bed of the lake, for the purposes of its business, east of and adjoining the premises between the river and the north line of Randolph street, and also north of the south line of lot 21; and also the right, by constructing and maintaining wharves, docks, piers, etc., to improve the shore of the lake for the purposes of its business and for the promotion generally of commerce and navi "An act in relation to a portion of the submerged lands and Lake Park grounds, lying on the eastern frontage of the city of Chicago. and adjacent to the shore of Lake Michigan, on Passed over veto, April 16, 1869." The 3d section of that act reads: "§ 3. The right of the Illinois Central Rail road Company under the grant from the state in its charter, which said grant constitutes a part of the consideration for which the said company pays to the state at least 7 per cent of its gross earnings, and under and by virtue of its appropriation, occupancy, use, and control, and the riparian ownership incident to control, in and to the lands, submerged or othsuch grant, appropriation, occupancy, use, and erwise, lying east of the said line, running parallel with and 400 feet east of the west line of Michigan avenue, in fractional sections 10 and 15, township and range as aforesaid, is hereby state of Illinois in and to the submerged lande confirmed; and all the right and title of the constituting the bed of Lake Michigan, and ly Ing east of the tracks and breakwater of the IIlinois Central Railroad Company, for the distance of 1 mile, and between the south line of extended eastward from the south line of lot the south pier extended eastwardly and a line 21, south of and near to the roundhouse and machine shops of said company, in the south division of the said city of Chicago, are hereby granted in fee to the said Illinois Central Railsuccessors and assigns: road Company, its Provided, however, that the fee to said lands shall be held by said company in perpetuity, and that the said company shall not have power to grant, sell, or convey the fee to the same; and that all gross receipts from use, profits, leases, or otherwise of said lands, or the improvements thereon, or that may hereafter be made thereon, shall form a part of the gross proceeds, receipts, and income of the said Illinois Central Railroad Company, upon which said company shall forever pay into the state treasury, semiannually, the percentum provided for in its charter, in accordance with the requirements of said charter and Provided, also, that nothing herein contained shall authorize obstructions to the Chicago harbor, or impair the public right of navigation; nor shall this act be construed to exempt the Illinois Central Railroad Company, its lessees or assigns, from any act of the general assembly which may be hereafter passed regulating the rates of wharf*The questions involved in the above suits age and dockage to be charged in said harbor: are indicated by the following extract from and Provided, further, that any of the lands the opinion of the circuit court at the orig- hereby granted to the Illinois Central Railroad inal hearing: "The state, in the original may hereafter be, on the same, which shall hereCompany, and the improvements now, or which suit, asks a decree establishing and confirm- after be leased by said Illinois Central RailIng her title to the bed of Lake Michigan, road Company to any person or corporation, or and her sole and exclusive right to develop which may hereafter be occupied by any person the harbor of Chicago by the construction or corporation other than said Illinois Central Railroad Company, shall not, during the conof docks, wharves, etc., as against the claim tinuance of such leasehold estate or of such by the railroad company that it has an ab-occupancy, be exempt from municipal or other solute title to said submerged lands, de- taxation." At the hearing of those causes in the circuit court certain maps were used; one be ing known as the map of "Fort Dearborn addition to Chicago" made by direction of the Secretary of War, under the authority of an act of Congress approved March 3d, 1819; the other being known as the Morehouse map. Both maps were made part of the opinion of this court in Illinois C. R. Co. v. Illinois, and for convenience are here reproduced [See opposite page.] RIVE 7867 [81] [80] gation. The state insisting that the com- | fractional section 15 addition was recorded, pany has, without right, erected, and pro- of the lands in that addition north of block poses to continue to erect, wharves, piers, 23. It asks a decree declaring that it is the etc., upon the domain of the state, asks that owner in fee, and of the riparian rights such unlawful structures be directed to be thereunto appertaining, of all said lands, removed, and the company enjoined from and has, under existing legislation, the excluconstructing others. The city, by its cross sive right to develop the harbor of Chicago bill, insists that since June 7th, 1839, when by the construction of docks, wharves, and the map of Fort Dearborn addition was relevees, and to dispose of the same, by lease corded, it has had the control and use for or otherwise, as authorized by law; and public purposes of that part of section 10 that the railroad company be enjoined from which lies east of Michigan avenue and be- interfering with its said rights and ownertween Randolph street and fractional sec. ship. The relief sought by the United tion 15; and that, as successor of the town States is a decree declaring the ultimate of Chicago, it has had possession and con- title and property in the 'Public Ground' trol since June 13th, 1836, when the map of shown on the plat of the Fort Dearborn U.S. GOVERNMENT BREAKWATER. BREANWATER AS WAS OUTER HARBOR MOREHOUSE MAP. US, GOVERNMENT BREAKWATER DOCK LINE AS ESTABLISHED BY US ENGINEERS. LAKE MICHICAN and piers 1, 2, and 3, lying east of pier C last mentioned, and represented upon said map to have been built as follows: Pier 1 in 1872 and 1873, pier 2 in 1881, and pier 3 in 1880, and is also entitled to the use, for the purposes of its business, of the slips marked on said Morehouse map. addition, south of Randolph street, and also in the open space shown on the plat of fractional section 15 addition, to be in the Unit[84]ed *States, with the right of supervision and control over the harbor and navigable waters aforesaid; that the railroad companies and the city be enjoined from exercising any right, power, or control over said grounds, or over the waters or shores of the lake; that the Illinois Central Railroad Company be restrained from making or constructing any piers, wharves, or docks, and from driving piles, building walls, or filling with earth or other materials in the said lake, or from using any made-ground, or any piers, wharves, or other constructions made or built by or for it in or about the outer harbor, to the east of the 200-feet strip of its way-ground, or from taking or exacting any toll for such use; and that the Illinois Central Railroad Company be required to abate and remove all obstructions placed by it in said outer harbor, and to quit possession of all lands, waters, and made-ground taken and held by it without right as afore-structed by the said Illinois Central Railsaid. The state, the city, and the general government all unite in contending that the lake front act of 1869 is inoperative and void." 33 Fed. 730, 750. "That said company is likewise the owner in fee of all the wharves, piers, and other works made and constructed by it in the city of Chicago, east of its main tracks, between the north line of block 23, in fractional section 15 addition to Chicago, and the center line of Sixteenth street extended, including the pier or line of piling represented upon the said Morehouse map to have been built in 1870, and the station grounds lying west of the said pier and contiguous thereto; also of the wharf or pier projecting into the lake from the grounds last mentioned, and represented upon the said Morchouse map to have been built in 1885; which said wharves, piers, and other works so constructed and so far as con road Company, as aforesaid, are lawful structures and not encroachments upon the domain of the state of Illinois or upon the public right of navigation, or upon the property interests or estate of the said city of Chicago." A final decree was rendered in the circuit court on the 24th day of September, 1888. By that decree it was adjudged that the fee "And the court doth further find and deof certain streets, avenues, and grounds was clare, and it is hereby adjudged and decreed, in the city of Chicago in trust for public that the 3d section of the act of the general use; and that the city of Chicago, as ripa-assembly of the state of Illinois, passed over rian owner of such grounds on the east or lake front of said city, between the north line of Randolph street and the north line of block 23, each of the lines being produced to Lake Michigan, and in virtue of authority to that end conferred by its charter, had, among other powers, the power to establish, construct, erect, and keep in re pair on the lake front, east of such premises, within the lines given, and in such manner as would be consistent with law, public landing places, wharves, docks, and levees, subject, however, in the execution of that power, to the authority of the state by legislation to prescribe the lines beyond which piers, docks, wharves, and other structures, other than those erected by the general government, might not be extended into the waters of the harbor that were navigable in fact, and to such supervision and control as the United States might rightly exercise in and over such harbor, and subject also [85]to the enjoyment by the Illinois Central Railroad Company of the rights then to be defined and described. It was further adjudged: "That the Illinois Central Railroad Company is the owner in fee of all the wharves, piers, and other structures erected by it in the city of Chicago, east of Michigan avc nuc, south of Chicago river, and north of the north line of Randolph street, extended eastwardly as shown upon said Morehouse map, including the station grounds lying west of the slip C, the pier marked C, lying east of slip C, and represented upon the Morehouse map to have been built in 1867, the governor's veto April 16, 1869, enti- 184 |