This Court will permit a petition for rehearing to be filed in
order to determine whether it ought to be entertained, and even if
the point raised as to expressions in the original opinion have a
basis, if the decision did not depend on that point, the petition
will be denied.
The Court recalls that part of the opinion heretofore delivered
in this case,
ante, pp.
229 U. S.
262-263, which holds that,
"By the acts of legislation mentioned, as construed by the
highest court of the State -- (a) the Act of 1850, adopting the
common law and thereby transferring to all riparian proprietors (or
confirming in them) the ownership of the nonnavigable streams and
their beds, and (b) the acts of February 24 and of March 11, 1891,
declaring in effect that the Klamath River is a nonnavigable stream
-- California has vested in the United States, as riparian owner,
the title to the bed of the Klamath, if in fact it be a navigable
river,"
and leaves that matter undecided.
As the conviction of the plaintiff in error can be sustained
without reference to the question of navigability of the Klamath
River, a petition for rehearing based on assertions of errors in
that respect in the opinion heretofore filed,
ante, p.
229 U. S. 243,
is denied.
The facts are stated in the opinion.
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.
Page 228 U. S. 709
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.
229 U. S. 243)
upon the California Acts of February 24, 1891, c. 14, and of March
11, 1891, c. 92 (Political Code, ยง 2349), and the decision of the
supreme court of that state in
Cardwell v. Sacramento
County, 79 Cal. 347, 349, 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 v. Elk River
Mill & Lumber Co., 107 Cal. 221, 224;
Forestier v.
Johnson, 164 Cal. 24, and
People v. Kerber, 152 Cal.
731), 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
Page 228 U. S. 710
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
Irrigation Co., 174 U. S.
698.
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 authoritative upon the question of
state policy, with the result of concluding, upon the whole matter,
that whether the river were or were not navigable in fact its bed
was to be deemed as included within the extension of the Hoopa
Valley Reservation.
But the record shows that, upon the trial, the plaintiff in
error did not request or suggest that the question of the
navigability of the river at the
locus in quo should be
considered as a question of fact, and disposed of accordingly. At
the close of the evidence for the government, counsel moved for a
dismissal of the action upon the ground that it had not been shown
that the alleged offense happened within the limits of the
Reservation. And at the close of all the evidence, the trial court
was requested to instruct the jury that the river was not within
the limits of the reservation, and that, if the alleged crime was
committed upon the river, the evidence had failed to establish the
jurisdiction of the court to try the defendant. This insistence was
repeated in different forms, but in each instance
Page 228 U. S. 711
the court was in effect requested to rule as a matter of law
that the Klamath River was not within the reservation. This
contention was as properly attributable to the theory that the
territorial limits as described in the Executive Order of President
Harrison, dated October 16, 1891, did not in terms include it, as
to the theory that the river was not navigable. It was upon the
former theory that plaintiff in error principally relied in this
Court. If the suggestion of excluding the river from the
Reservation on the ground that it was navigable was intended to be
made the subject of exception at the trial, this point should have
been clearly raised, and it was not. Moreover, even assuming that
the requests were intended to point to the question of
navigability, they, at best, called upon the court to decide that
question as a question of law, and not to determine it, or to have
the jury determine it, as a question of fact.
The state of the record therefore did not entitle the plaintiff
in error to call upon this Court to decide the merits of the
question of the navigability of the river and its effect upon the
jurisdiction of the circuit court over the homicide. In discussing
the merits, we assumed (in favor of plaintiff in error) that the
question was raised by the record. But since it is now suggested
that, in so doing, we have passed upon a question that was not
adequately argued, and which in its consequences involves important
interests other than those of the plaintiff in error, we prefer to
and do recall so much of the opinion as holds that
"by the Acts of legislation mentioned, as construed by the
highest court of the state -- (a) the Act of 1850, adopting the
common law, and thereby transferring to all riparian proprietors
(or confirming in them) the ownership of the nonnavigable streams
and their beds, and (b) the Acts of February 24 and of March 11,
1891, declaring in effect that the Klamath river is a nonnavigable
stream -- California has vested in the United States, as riparian
owner,
Page 228 U. S. 712
the title to the bed of the Klamath, if in fact it be a
navigable river."
That matter, therefore, we leave undecided.
But since, as already shown, the conviction of the plaintiff in
error may properly stand without regard to that question, we deem
that no useful purpose would be served by further oral
argument.
Rehearing denied.