S. 387, 449, 464, 36 L. ed. 1018, 1041, 1046, 13 Sup. Ct. Rep. 110, 117, 122.

1873, repealing said act of April 16th, 1869, cree of the circuit court except as modified had the effect in law to withdraw from said in certain particulars, to be presently indirailroad company the grant to it, its succes-cated. Illinois C. R. Co. v. Îllinois, 146 U. sors and assigns, by the 3d section of said act of April 15th (16th), 1869, of 'all the right and title of the state of Illinois in and to the submerged lands constituting the bed of Lake Michigan and lying east of the tracks and breakwater of the Illinois Central Railroad Company for the distance of 1 mile, and between the south line of the pier extended eastwardly and a line ex tended eastward from the south line of lot 21, south of and near to the roundhouse and machine shops of said company, in the south division of said city of Chicago;' and to reinvest the state with such right and title as it had in and to said premises prior to the passage of said act of April 16th, 1869; and said repealing act had the further effect to withdraw from said company the additional power conferred upon it by said act of April 16th, 1869, to improve the harbor [87]of Chicago, and *to engage in the business of constructing and maintaining wharves, piers, and docks for the benefit of commerce and navigation generally, and not in the prosecution of its business as defined and limited by its original charter and the laws of the state, saving, however, to said company as unaffected by said repeal the right to hold and use as part of its way-ground or right of way, and not otherwise, the before mentioned part of the submerged lands east of its breakwater between Monroe and Washington streets extended eastwardly, which was reclaimed from the lake in 1873, presumably upon the faith of the act of 1869, and is marked on the Morehouse map with the words 'built 1873.'

"It is further ordered, adjudged, and decreed that the defendant, the Illinois Central Railroad Company, be, and it is hereby, perpetually enjoined and restrained from erecting structures in or filling with earth or other materials any portion of the bed of Lake Michigan as it now exists and as shown on said Morehouse map east or in front of said fractional sections 10 and 15, that is, east or in front of the grounds now occupied and used by it between Chicago river and the north line of Randolph street extended eastwardly, or east or in front of the grounds now occupied and used by it between the north line of Randolph and the center line of Sixteenth street, each extended eastwardly, except that said company may complete the slip or basin already commenced immediately north of Sixteenth street extended, with a wharf on each side of it not exceeding 100 feet in width each, where vessels coming into such slip or basin may load and unload, and upon which tracks of the company may be laid; and it is considered and ordered by the court that the Illinois Central Railroad Company and the city of Chicago each pay one half of the costs herein, and that execution issue therefor."

The railroad company not having obtained all it claimed, the cause was brought by it to this court, which affirmed the de

Referring to the 3d section of the act of the Illinois legislature of 1869 this court [88] said: "The section in question has two objects in view: one was to confirm certain alleged rights of the railroad company under the grant from the state in its charter and under and 'by virtue of its appropriation, occupancy, use, and control, and the riparian ownership incident thereto, in and to the lands submerged or otherwise lying east of a line parallel with and 400 feet east of the west line of Michigan avenue, in fractional sections 10 and 15. The other object was to grant to the railroad company submerged lands in the harbor. The confirmation made, whatever the operation claimed for it in other respects, cannot be invoked so as to extend the riparian right which the company possessed, from its ownership of lands in sections 10 and 15 on the shore of the lake. Whether the piers or docks constructed by it after the passage of the act of 1869 extended beyond the point of navigability in the waters of the lake must be the subject of judicial inquiry upon the execution of this decree in the court below. If it be ascertained upon such inquiry and determined that such piers and docks do not extend beyond the point of practical navigability, the claim of the railroad company to their title and possession will be confirmed; but if they, or either of them are found on such inquiry to extend beyond the point of such navigability, then the state will be entitled to a decree that they, or the one thus extended, be abated and removed to the extent shown, or for such other disposition of the extension as, upon the application of the state and the facts established, may be authorized by law."

The modifications in the original decree of 1888 which this court directed to be made are distinctly shown by the following extract from our opinion:

"It follows from the views expressed, and it is so declared and adjudged, that the state of Illinois is the owner in fee of the submerged lands constituting the bed of Lake Michigan, which the 3d section of the act of April 16th, 1869, purported to grant to the Illinois Central Railroad Company, and that the act of April 15th, 1873, repealing the same, is valid and effective for the purpose of restoring to the state the same control, dominion, and ownership of said [89] lands that it had prior to the passage of the act of April 16th, 1869.

"But the decree below, as it respects the pier commenced in 1872, and the piers completed in 1880 and 1881, marked 1, 2, and 3, near Chicago river, and the pier and docks between and in front of Twelfth and Sixteenth streets, is modified so as to direct the court below to order such investigation to be made as may enable it to determine whether those piers erected by the company, by virtue of its riparian proprietorship of

lots formerly constituting part of section | This question was fully discussed at the bar.
10, extend into the lake beyond the point of It is not in our opinion difficult of solution.
practical navigability, having reference to We have seen that by the original decree
the manner in which commerce in vessels is of the circuit court rendered September 24th,
conducted on the lake; and if it be deter- 1888, the railroad company was adjudged
mined upon such investigation that said to be the owner in fee of the particular
piers, or any of them, do not extend beyond structures in question, namely, the piers
such point, then that the title and posses- marked 1, 2, and 3 on the Morehouse map,
sion of the railroad company to such piers as well the piers and docks between and in
shall be affirmed by the court; but if it be front of Twelfth and Sixteenth streets, and
ascertained and determined that such piers, were entitled to use and control them in its
or any of them, do extend beyond such navi- business. This court held that view to be
gable point, then the said court shall direct correct, provided the structures did not "ex-
the said pier or piers, to the excess ascer- tend into the lake beyond the point of prac
tained, to be abated and removed, or that tical navigability, having reference to the
other proceedings relating thereto be taken manner in which commerce in vessels is con-
on the application of the state as may be ducted on the lake." If, upon investigation,
authorized by law; and also to order that it was found that the structures referred
similar proceedings be taken to ascertain to did in fact extend beyond that point, then
and determine whether or not the pier and the circuit court was directed to make such
dock constructed by the railroad company decree as would effect their removal "to the
in front of the shore between Twelfth and excess ascertained;" and if the contrary was
Sixteenth streets extend beyond the point of found to be the case, then a decree was to
navigability, and to affirm the title and pos- be entered recognizing the right of the rail-
session of the company if they do not ex-road company in respect of the structures in
tend beyond such point, and, if they do ex-
tend beyond such point, to order the abate-
ment and removal of the excess, or that oth-
er proceedings relating thereto be taken on
application of the state as may be author-
ized by law. Except as modified in the
particulars mentioned, the decree in each of
the three cases on appeal must be affirmed,
with costs against the railroad company;
and it is so ordered." Illinois Central R.
Co. v. Illinois, 146 U. S. 387, 449, 464, 36
L. ed. 1018, 1041, 1046, 13 Sup. Ct. Rep.
110, 117, 122.

The mandate of this court embodied the
above extract from its opinion, and upon
the return of the causes to the circuit court
the parties took additional proof on the sin-
gle matter so reserved for investigation.
[90] *Upon final hearing in the circuit court,
May, 1896, a decree was entered by which it
was found and adjudged "that the said piers
and docks referred to in the aforesaid judg-
ment and mandate of the Supreme Court
and there described as piers marked 1, 2,
and 3, near Chicago river, and the piers
and docks constructed by the said railroad
company in front of the shore between
Twelfth and Sixteenth streets, all in the
city of Chicago, in the state of Illinois, do
not extend, nor does either of them extend,
into the lake beyond the point of practical
navigability, having reference to the man-
ner in which commerce in vessels is con-
ducted on the lake. It is therefore ordered,
adjudged, and decreed that the title and
possession of the said Illinois Central Rail-
road Company to the said piers, and each
of them and every part thereof, be, and the
same is hereby, affirmed."

That decree was affirmed by the circuit
court of appeals (34 C. C. A. 138, 91 Fed.
955), and the case is here upon appeal by
the state of Illinois. No appeal was taken
by the United States or by the city of Chi-
cago.

In view of these facts, what matters are open for consideration on this appeal?

question to be such as were declared by the
original decree of the circuit court.
*As already shown, the circuit court found,[91]
upon full inquiry, that the structures did
not extend beyond the point of practical
navigability, having reference to the man-
ner in which commerce was conducted on
the lake; and in conformity with the man-
date a decree was entered confirming the
title of the railroad company.

In Sibbald v. United States, 12 Pet. 488,
492, 9 L. ed. 1167, this court said: "A
final decree in chancery is as conclusive as
a judgment at law. 1 Wheat. 355, 4 L. ed.
110; 6 Wheat. 113, 116, 5 L. ed. 219, 220.
Both are conclusive on the rights of the
parties thereby adjudicated. No principle
is better settled, or of more universal ap-
plication, than that no court can reverse or
annul its own final decrees or judgments,
for errors of fact or law, after the term in
which they have been rendered, unless for
clerical mistakes (3 Wheat. 591, 4 L. ed.
467; 3 Pet. 431, 7 L. ed. 731); or to rein-
state a cause dismissed by mistake (12
Wheat. 10, 6 L. ed. 534); from which it
follows that no change or modification can
be made which may substantially vary or
affect it in any material thing.
Whatever was before the court, and is dis-
posed of, is considered as finally settled.
The inferior court is bound by the decree
as the law of the case, and must carry it
into execution, according to the mandate.
They cannot vary it, or examine it for any
other purpose than execution, or give any
other or further relief, or review it upon
any matter decided on appeal for error ap-
parent, or intermeddle with it, further than
to settle so much as has been remanded.
After a mandate, no rehearing will
be granted,
and on a subsequent
appeal nothing is brought up but the pro-
ceeding subsequent to the mandate. 5
Cranch, 316, 3 L. ed. 112; 7 Wheat. 58, 59,
5 L. ed. 397; 10 Wheat. 443, 6 L. ed. 362."

In Roberts v. Cooper, 20 How. 467, 481,

184

circuit court, and therefore on this appeal
we can only inquire as to the soundness or
unsoundness of its conclusion upon the sole
question reserved for investigation. We
therefore do not stop to consider, as the ap-
pellant insists we should do, whether this
court erred in any particular in its opin-[93]
ion or judgment on the former appeal, in
respect of any matter then determined.
Every matter embraced by the original de
cree of the circuit court, and not left open
by the decree of this court, was conclusively
determined, as between the parties, by our
former decree, and is not subject to re-ex-
amination on this appeal.

We come, then, to consider the merits of the case as involved in the only question now before us, namely, whether the structures referred to extend beyond the point of practical navigability, having reference to the manner in which commerce in vessels is conducted on the lake.

15 L. ed. 969, 973, the court said: "On the last trial the circuit court was requested to give instructions to the jury contrary to the principles established by this court on the first trial, and nearly all the exceptions now urged against the charge are founded on such refusal. But we cannot be compelled on a second writ of error in the same case to review our own decision on the first. It has been settled by the decisions of this court, that after a case has been brought here and decided, and a mandate issued to [92]the court *below, if a second writ of error is sued out it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the court on the first writ of error can be reheard or examined upon the second. To allow a second writ of error or appeal to a court of last resort on the same questions which were open to dispute on the first would lead to endless litigation. In chancery a bill of review is sometimes Judge Showalter in the circuit court allowed on petition to the court; but there found that the facts relating to the struc would be no end to a suit if every obstinate tures north of Randolph street and those litigant could, by repeated appeals, compel between Twelfth and Sixteenth streets fully a court to listen to criticisms on their opin-protected the railroad company under the ions, or speculate of chances from changes rule prescribed by the mandate of this court. in its members. We can now no- Referring to vessels of the largest class contice, therefore, only such errors as are al-tinuously used in lake navigation, he said: leged to have occurred in the decisions of "Such vessels, when ladened, require from questions which were peculiar to the second 16 to 20 feet of water in which to float. A trial." To the same effect are numerous vessel drawing more than 12 feet, as I find cases, some of which are cited in the mar- from the evidence in the case, would hardly gin.t reach the structure here in question in the ordinary stages of water, and in the lowest water vessels requiring more than 10 feet could not reach or land at these docks. Without being specific as to the exact depth of the water, I find that the two piers and docks between Twelfth and Sixteenth streets of practical navigability, having reference do not extend into the lake beyond the point

It is clear, under the adjudged cases, that upon the return of this cause to the circuit court nothing was before that court except to inquire whether the structures erected by the railroad company, and specifically described in the opinion and mandate of this court, extended into the lake beyond the point of practical navigability, having reference to the manner in which commerce in vessels to the manner in which commerce in vessels was conducted on the lake. That matter, is conducted on the lakes, and I make the and nothing more, has been or could have same finding as to the piers and docks north been determined by the final decree of the of Randolph street.

Martin v. Hunter, 1 Wheat. 304, 355, 4 L. ed. 97, 110; Browder v. M'Arthur, 7 Wheat. 58, 5 L. ed. 397; Washington Bridge Co. v. Stewart, 3 How. 413, 425, 11 L. ed. 658, 664;

Chaires v. United States, 3 How. 611, 620, 11 L. ed. 749, 753; Corning v. Troy Iron & Nail Factory, 15 How. 451, 466, 14 L. ed. 768, 774; Peck v. Sanderson, 18 How. 42, 15 L. ed. 262; Whyte v. Gibbes, 20 How. 541, 15 L. ed. 1016; Ea parte Dubuque & P. R. Co. 1 Wall. 69, 73, sub nom. Dubuque & P. R. Co. v. Litchfield, 17 L. ed. 514, 515; Noonan v. Bradley, 12 Wall. 121, 129, 20 L. ed. 279, 281; Wayne County v. Kennicott, 94 U. S. 498, 24 L. ed. 260; Stewart v. Salamon, 97 U. S. 361, 24 L. ed. 1044; Brooks v. Burlington & S. W. R. Co. 102 U. S. 107, 26 L. ed. 91: Northern P. R. Co. v. Ellis, 144 U. S. 458, 464, 36 L. ed. 504, 506, 12 Sup. Ct. Rep. 724; Gaines v. Rugg, 148 U. S. 228, 241, sub nom. Gaines v. Caldwell, 37 L. ed. 432,

436, 13 Sup. Ct. Rep. 611; Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 683, 691, 39 L. ed. 859, 863, 15 Sup. Ct. Rep. 733; New Orleans v. Citizens' Bank, 167 U. S. 371, 396, 42 L. ed. 202, 210, 17 Sup. Ct. Rep. 905; Re Sanford Fork & Tool Co. 160 U. S. 247, 40 L. ed. 414, 16 Sup. Ct. Rep. 291.

In the circuit court of appeals, Judge Jenkins, speaking for the court, said: "The right [of the riparian owner] is a relative right, having relation, in the language of the Supreme Court in this cause, 'to the manner in which commerce in vessels is conducted on the lake.' To serve any useful purpose these piers must reach water of sufficient depth to float vessels when laden, and alongside of which vessels can be brought to be conveniently loaded or unloaded. A sufficient depth of water to float vessels such as navigate the waters of the lake is essential. and it is a necessary incident of the riparian [94] right that the pier shall penetrate the water to a distance from the shore necessary to reach water which shall float vessels, the largest as well as the smallest, that are engaged in the commerce of the lakes. Atlee

Y. 151.

v. Northwestern U. Packet Co. 21 Wall. 393, 22 L. ed. 620; Langdon v. New York, 93 N. We must have regard to the object for which this right is conferred. It is to reach out to accommodate the vessels that plow the waters of the lake. It is

river over the La Salle and Washingtongan as it then existed and was shown on streets tunnels was about 16 feet and 8 the Morehouse map east or in front of the inches, a greater depth than exists at the fractional sections 10 and 15, that is, "east outer edge of the piers, docks, and wharves or in front of the grounds now [at the date in question, except that at the mouth of the of the original decree] occupied and used by Chicago river, against the ends of some of it between Chicago river and the north line the company's structures, there is a depth of Randolph street extended eastwardly, or [97]of 18 to 20 feet, obtained *by dredging. The east or in front of the grounds now [then] average depth of water at the outer line of occupied and used by it between the north the structures in question does not exceed line of Randolph and the center line of Six12 or 13 feet at the utmost, which is insuf- teenth_street, each extended eastwardly, exficient for the accommodation of a vast cept that said company may complete the amount of commerce carried on in vessels slip or basin already commenced immediateon the lake. An examination of the evily north of Sixteenth street extended, with dence will disclose this fact beyond all serious controversy.

We are therefore of opinion that there was no error in holding that, in view of the manner in which commerce was conducted on the lake during the period of the investigation below, such structures did not extend into the water beyond the point of practical navigability. Regard being had to the weight of the proof, the same conclusion would be reached if we looked at the capacity of the vessels used on the lake at the time of the original decree in the circuit

court.

Confirmation of these views will be found in the testimony of many witnesses whose opinions are entitled to respect. Captain Marshall of the Engineer Corps of the United States Army, having accurate knowledge of the harbor of Chicago and of its needs, was asked the question: "Having refer ence to the manner in which commerce in vessels is now conducted on the lakes at the port of Chicago, what, in your opinion, is the reasonable and necessary depth of water in a slip or dock for the accommodation of that commerce?" His answer was: "At present no vessel with a deeper draft than about 16 feet can carry on commerce in the Chicago river, so that I should think that a foot deeper than that-17 feet-would be a proper depth to accommodate the largest as well as the smallest vessels that come to Chicago now." He was also asked: "If you were to construct a pier or wharf in the

Baid outer harbor for the accommodation of vessels engaged in lake commerce, or were to advise in relation thereto, what would be the depth of the water you would consider it necessary to reach in order that such pier

or dock should be available for the uses intended?" He replied: "17 feet at present, and ultimately they should construct their docks with 20 feet of water. Piling and bulkheads so as to stand dredging to 20 feet." Many other witnesses testified substantially to the same effect.

[98] *It does not follow from what has been

a wharf on each side not exceeding 100 feet in width each, where vessels coming into such slip or basin may load or unload, and upon which tracks of the company may be laid." These restrictions imposed by the original decree were confirmed by the former decree of this court, leaving open only the question whether the structures complained of, and as then constructed and maintained, extended into the lake beyond the point of practical navigability. So that the railroad company cannot acquire by the present decision any authority to further extend its structures into the lake. It must

stand upon the original decree of the circuit court in respect of its rights.

We may add that, the circuit court and the circuit court of appeals having concurred in finding that the structures in question did not extend into the lake beyond the point of practical navigability,-which is largely, if not entirely, a question of fact,the decree should not be disturbed unless it was clearly in conflict with the evidence. Compania de Navigacion la Flecha Brauer, 168 U. S. 104, 123, 42 L. ed. 398, 406, 18 Sup. Ct. Rep. 12; Stuart v. Hayden, 169 U. S. 1, 14, 42 L. ed. 639, 643, 18 Sup. Ct. Rep. 274; Baker v. Cummings, 169 U. S. 189, 198, 42 L. ed. 711, 716, 18 Sup. Ct. Rep. 767; The Carib Prince, 170 U. S. 655, sub L. ed. 1181, 18 Sup. Ct. Rep. 753. nom. Wupperman v. The Carib Prince, 42

V.

which the State complains must be affirmed.
*For the reasons stated, the decree of [99]

It is so ordered.

The CHIEF JUSTICE, having been of counsel for the city of Chicago in the earlier stages of this litigation, took no part in the

consideration or decision of this case.

WILLIAM H. BRAINARD, Edward Albert
Brainard, and Eva Hanmore, Appts.,

v.

LEFFERT L. BUCK and James Coleman. (See S. C. Reporter's ed. 99–111.) Pleading-amendment changing cause of ao tion-conclusiveness of concurrent findings-resulting trust-laches.

said that the railroad company can. of right,
further extend into the lake either the
structures in question or new structures.
While sustaining the title and possession
of the railroad company in respect to piers
and docks, so far as then constructed, the
original decree of 1888 perpetually enjoined
the railroad company from erecting struc-1.
tures in or filling with earth or other mate-
rials any portion of the bed of Lake Michi- v.

An amendment to a bill in equity does not NOTE.-On resulting trusts-see notes to Fink Umscheid (Kan.) 2 L. R. A. 146; Hinton v.