where the party having the legal title has, during the required period of twenty-one years, been in notorious and adverse possession, paying the taxes and exercising all the usual rights of ownership, and his title has, for the whole period, been on record in the proper office. On this point, therefore, we think the charge was correct and unexceptionable.

takes the profits, and claims the whole exclu- | guished. This rule is especially applicable sively for twenty-one years, the jury ought to presume an ouster, though none be proved, Frederick v. Gray, 10 Serg. & R. 182; Calhoun v. Cook, 9 Pa., 226; Culler v. Motzer, 13 Serg. & R., 356; Lodge v. Patterson, 3 Watts, 77.” "The jury are, therefore, instructed that if they find from the evidence that the defendants entered upon the property in 1846, by themselves or their tenants, claiming it as their own exclusively, receiving its profits, and that they have maintained notorious, adverse, exclusive, hostile and uninterrupted possession of the entire tract ever since, the verdict should be for the defendants."

4. The court also charged the jury that the plaintiff, claiming as he does as heir of his father, stands in no better situation than his father would stand in were he living and had this action been brought by him.

To each proposition of this charge in favor of the defendants the plaintiff excepted; and the question here is, whether it contained any error prejudicial to him. After giving due attention to the laws and judicial decisions of Pennsylvania, we are satisfied that the charge was as favorable to the plaintiff as could be asked. Each of its positions seems to be abundantly sustained by authority. A leading case on the first point is Strimpfler v. Roberts, 18 Pa., 283, which adopts the general rule, that a resulting trust, resting in parol, is to be regarded as extinguished after the lapse of twenty-one years. This case has frequently been affirmed by subsequent cases cited in the defendants' brief. In Fox v. Lyon, 33 Pa., 474, it is said: "In Strimpfler v. Roberts, it was decided, on great consideration, and re-affirmed in Brock v. Savage, 31 Pa., 410, that where a warrant is issued to one person, and the purchase money is paid by another, and the patent is afterwards taken out by the nominal warrantee, the right

We are also of opinion that the Statute of 1856 and the general Statute of Limitations were applicable to the case upon the facts as submitted to the jury. As these points are fully explained in the charge itself, we deem it unnecessary to discuss them.

The fourth point needs no remark.
The judgment of the Circuit Court is affirmed.

of him who paid the purchase money is gone, BILL in equity

The case is stated by the court.

Messrs. I. C. Sloan and J. B. Beck, for complainant.

unless he takes possession of the land, or brings ejectment to recover it, within twenty-one years from the date of the warrant; and after that lapse of time he cannot recover, no matter how The appropriation of $100,000 made by Act clearly he may be able to prove that the legal of Congress Mar. 3, 1873, ch. 233, to be exowner was, in the beginning, a trustee for pended under the direction of the Secretary of him." And this decision was followed in the War, and the appropriation of $10,000 by Act said case of Fox v. Lyon. It was also followed of Congress June 23, 1874, ch. 457, are in no and re-affirmed in the subsequent cases of Hal-sense a congressional declaration of the necessey v. Tate, 52 Pa, 311, and in Lingenfelter v.sity or propriety of the Duluth Canal as an Richey, 62 Pa., 123. In the latter case, it was improvement of the harbor of Duluth. claimed that a deed absolute on its face was, Those Acts, at most, vest a discretionary nevertheless, in trust. The court, following and power in the Secretary of War for the expendrelying on the cases of Strimpfler v. Roberts, and iture of money appropriated, and as appears other cases to the same effect, with reference to from the testimony in this case, the War Dethe parties claiming the benefit of the said trust, partment has steadily refused to approve or said: "As they claimed title to the land against adopt the Duluth Canal as a government work; the express language of the deed, they were but has steadily and constantly insisted that, bound to show, by clear and satisfactory evi- unless the dike should be reconstructed, the dence, that there was a resulting trust in favor canal would prove destructive of the natural of Sparks, and that he had taken such posses entry which had been improved at large exsion of the land, or exercised such exclusive pense by the government. acts of ownership over it, within twenty-one years from the time the trust arose, as would prevent its extinguishment."

It is, therefore, an undoubted rule of law in Pennsylvania, that a resulting trust in land, if not sought to be enforced for a period of twentyone years, and is not re-affirmed or continued, will, under ordinary circumstances, be extin

The canal was constructed as a private enterprise, receiving no aid in its construction from the government, and it would be a perversion of the intention of Congress to give to those appropriations the effect of legalizing the canal and making it a part of the government work.

But to place the congressional intention

tion by this court as the plaintiff has prayed for. It is to be observed, as preliminary to an examination of the Acts of the General Government in the special matter before us, that the whole system of river and lake and harbor improvements, whether on the sea-coast or on the lakes or the great navigable rivers of the interior, has for years been mainly under the control of that government, and that, whenever it has taken charge of the matter, its right to an exclusive control has not been denied. The operations of the government in this regard have been conducted by the Bureau of Engineering, as part of the War Department, to which Congress has confided the execution of its wishes in all these matters. That department has mapped out in suitable geographical divisions the work thus imposed upon it, and placed these under the control of officers who are in charge of them. These are again subdivided, so that while the lake system, or, at all events, the western lake system, is in the charge of one general superintendent, the separate works which at different places are conducted under him have each another engineering officer, who has special charge of those works.

channel as an important highway for navigation | true in point of fact, it will preclude any such acand commerce in its natural and usual course; that the canal cut by Duluth across Minnesota Point, deeper than the natural outlet of the St. Louis River at its mouth, has diverted and will continue to divert the current of that river through Superior Bay into the lake by way of that canal; that the result of this is, that while the current cuts that canal deeper and gives an outlet for the water there at a lower level, it at the same time, by diverting this current from the old outlet, causes it to fill up, and thus destroys the usefulness of the river and bay as an aid of commerce, on which the State had a right to rely. The bill, after reciting the facts which we have already detailed, insists that the City of Duluth cannot, by any right of her own, nor by any authority conferred on her by the State of Minnesota, thus divert the waters of the stream-the St. Louis River-from their natural course, to the prejudice of the rights of the State of Wisconsin or of her citizens. It declares that this canal at Duluth does this in violation of law; and 'it prays of this court to enjoin Duluth from protecting or maintaining it, and by way of mandatory injunction to compel that City to fill up the canal and restore things in that regard to the condition of nature in which they were before the canal was made.

The answer, while admitting the construction of the canal, denies almost every other material allegation of the bill. It denies especially that the canal has the effect of changing the course of the current of the river, or does any injury to the southern entrance to Superior Bay or diminishes the flow of water at that point.

A large amount of testimony, professional and non-professional, is presented on that subject. The answer also sets up, as an affirmative defense to the relief sought by the bill, that the United States, by the Legislative and Executive Departments of the Government, have approved of the construction of the canal; have taken possession and control of the work; have appropriated and spent money on it, and adopted it as the best mode of making a safe and accessible harbor at the western end of the great system of lake navigation.

Many very interesting questions have been argued, and ably argued, by counsel, which we have not found it necessary to decide. The counsel for defense deny that the State of Wis consin has any such legal interest in the flow of the waters in their natural course as authorizes her to maintain a suit for their diversion. It is argued that this court can take cognizance of no question which concerns alone the rights of a State in her political or sovereign character; that, to sustain the suit, she must have some proprietary interest which is affected by the defendant. This question has been raised and discussed in almost every case brought before us by a State, in virtue of the original jurisdiction of the court. We do not find it necessary to make any decision on the point as applicable to the case before us.

Nor shall we address ourselves to the consideration of the mass of conflicting evidence as to the effect of the canal on the flow of the waters of Superior Bay.

We will first consider the affirmative defense already mentioned; for, if that be found to be

For many years past, Congress has been in the habit of passing an annual appropriation bill, called the River and Harbor Bill, devoted to works of this class exclusively; and in these bills it appropriates specific sums to specific works, either already commenced and unfinished, or for new works thereby authorized, or sums necessary for the safety and protection of works already in existence. The money thus appropri ated is expended, as we have said, under the direction of the War Department. It cannot be necessary to say that when a public work of this character has been inaugurated or adopted by Congress, and its management placed under the control of its officers, there exists no right in any other branch of the government to forbid the work, or to prescribe the manner in which it shall be conducted.

With these observations, we proceed to inquire what the General Government has done in the matter before us. As we have already stated, it had for several years been at work under appropriations by Congress, prior to the construction of the canal at Duluth, in the effort to deepen the channel at the mouth of the St. Louis River, but, we may infer, with little success beyond preventing it from filling up. The rapid growth of the City of Duluth, consequent upon its being made the terminus of the railroad, had attracted attention to the necessity of harbor improvements at that point; and Congress had made appropriations for a breakwater, which had been partially constructed outside of Minnesota Point in the main water of the lake. But this had proved a failure; and it was seen that no safe harbor for the vast commerce which was expected to be created at that place by the North Pacific Railroad could be secured in that mode. The City of Duluth and the Railroad Company, impatient of relief from Congress,inaugurated, therefore, in 1871, the system of improving the inner harbor in the waters of Superior Bay, and effecting an entrance into that harbor by the canal across Minnesota Point. The canal was completed sufficiently for use in that year, and the dredging of the harbor

And in the Act of Aug. 14, 1876, 19 Stat. at L., 132, there is the following paragraph:

commenced. The matter was in this condition | built by the United States, is in a very precariwhen Congress, by the River and Harbor Bill ap- ous state, owing to its being undermined. The proved March 3, 1873, 17 Stat. at L., 560, appro-estimated cost of the present urgent repairs is priated, For the purpose of dredging out the $6.300; and as every year some repairs are necBay of Superior, from the natural entrance to essary, an appropriation of $10,000 for this purthe docks of Superior and Duluth, and preserv- pose is needed." ing both entrances from the lake thereto, $100,000." The whole sheet of water, as we have said, lying west of Minnesota Point, from one 'For the improvement of the harbor at Duto two miles wide, and extending from Duluth luth, Minnesota, $15,000. Said appropriation is on the north shore to Superior City on the made upon the express condition that it shall be south, was Superior Bay. There was but one without prejudice to either party in the suit now entrance into that bay from the lake until the pending between the State of Wisconsin, plaintcanal was made. There were no docks at Duiff, and the City of Duluth and the Northern luth but those made by the Railroad Company Pacific Railroad, defendants." and the City in the inner harbor at the upper end of that bay. We see, then, at once, that Congress, recognizing what had been done by private enterprise at Duluth, determined to place that harbor and that canal under the same protection and to provide for them in the same appropriation which covered the entrance and the harbor at Superior City. Hence, $100,000 was appropriated as one item, for both entrances and for both improvements, to be administered by the same officers as their judgment might dictate. The following extract from the report of the officer in charge of the matter shows what was done under the appropriation: 1. Completing the pier at the natural entrance to Superior Bay.... 2. Dredging between the piers at the natural entrance.

$25,000

The hostility of Superior City and of the State of Wisconsin could not avail to defeat the ap propriation; but as this suit was then pending, the clause that it should be without prejudice to anyone in the suit was inserted.

It was not needed. The Congress of the United States had themselves before this, adopted, recognized and taken charge of this work. It had placed it on precisely the same ground, and provided for it in the same paragraph, and out of the same aggregate sum of money, that it did the work at the original entrance, as it is aptly called, at the mouth of the river. It had abandoned the breakwater as a failure and as unnecessary, in consequence of this new and more useful improvement. The War Department had accepted the charge of the work, had expended 11,340 the appropriations made, and had now for several years made the same regular estimates for 12,000 this work that it did for all others under its con19,500 trol and management. And though the State of Wisconsin had brought her suit in this court to abate the work as a nuisance, and Congress was made aware of the fact, it still, in 1876, made the usual appropriation, and the War Department still had the work in charge; and the Congress cautiously said, this shall prejudice no one in the suit, but we shall go on notwithstanding, and continue this system of improvement.

3. Dredging from natural entrance to docks at Superior City.. 4. Repairing pier at Duluth entrance. 5. Dredging between piers at Duluth entrance and from the piers to the docks of Duluth... 16,400 This dredging was in the inner harbor, and the breakwater was thenceforth abandoned as a government work. An estimate made by the engineer department for the next year's appropriations required for the maintenance of the Superior City entrance, $10,000; for the Duluth entrance, $10,000; and for dredging the bay of We do not feel called upon to make an arguSuperior, $100,000; and the appropriation bill, ment to prove that these statutes of the Conamong other items, had, for continuing the im-gress of the United States, and these Acts of the provement of the entrance to the main harbor of Duluth, $10,000.

Of this appropriation, the engineer in charge says that some repairs to the piers (of the canal) were made, and 45,1714 cubic yards were dredged from the inside harbor.

By the Act entitled "An Act Making Appropriations for the Repair, Preservation and Com pletion of Certain Public Works in Rivers and Harbors, and for Other Purposes, approved March 3, 1875, there was 'appropriated, to be expended under the direction of the Secretary of War, for the repair, preservation and completion of the public works hereinafter named, viz.: for dredging the inside harbor of Duluth, $35,000.'"

In the report of the chief of engineers for the year 1875, it is further stated:

"The appropriation of $35,000, made in the River and Harbor Bill, approved March 3, 1875 [18 Stat. at L., 456]. restricts the application of that sum to dredging the inside harbor, and during the present fiscal year it is proposed to continue the dredging on the anchorage ground. The north pier of the canal, which was not

Executive Department in carrying those statutes into effect, constitute an adoption of the canal and harbor improvement started by the City of Duluth, and a taking exclusive charge and control of it; that they amount to the declaration of the Federal Government, that we here interpose and assert our power; we take upon ourselves the burden of this improvement, which properly belongs to us, and that hereafter this work for the public good is in our hands and subject to our control.

If the merest recital of these Acts of Congress, and of the War Department under them, do not establish that proposition, we can have little hope of making it plain by elaborate argu

ment.

Nor can there be any doubt that such action is within the constitutional power of Congress. It is a power which has been exercised ever since the government was organized under the Constitution. The only question ever raised has been, how far and under what circumstances the exercise of the power is exclusive of its exercise by the States. And while this court has maintained, in many cases, the right of the States to

authorize structures in and over the navigable An appeal from the district court to the circuit waters of the States, which may either impede court carries up the whole fund. [No. 198.] or improve their navigation, in the absence of any action of the General Government in the same matter, the doctrine has been laid down with unvarying uniformity, that when Congress has, by any expression of its will, occupied the field, that action was conclusive of any right to the contrary asserted under state authority. The adjudged cases in this court on this point are

THE GERMANIA INSURANCE COM- in the same manner as appellants Pearce and