quired by the first clause of the act. The words in that act, "when it shall be made to appear to said circuit court that from prejudice," etc., require legal proof of the fact of such prejudice, and the affidavit of the manager of a corporation that such prejudice exists, without any statement of facts showing how or why it exists, is not bound to be regarded by the court as sufficient. Upon the first point Bradley, J., after citing the authorities for the general power of the court to issue writ

mand shall be immediately carried into execution," in addition to the prohibition of appeal and writ of error, is strongly indicative of an intent to suppress further prolongation of the controversy by whatever process. We are, therefore, of opinion that the act has the effect of taking away the remedy by mandamus as well as that of appeal and writ of error.

CARRIERS OF GOODS-ILLEGAL FREIGHT CONTRACTS - REBATES - POOLING COMBINATIONS.-The case of Cleveland, C. C. & I. Ry. Co. v. Closser, 26 N. E. Rep. 159, decided by the Supreme Court of Indiana, contains some

risdiction of a cause when it refuses to do so, says:

But it was expressly held in Railroad Co. v. Wiswall, 23 Wall. 507, that a mandamus would lie to compel a circuit court to take jurisdiction of and proceed with a case which it had wrongfully remanded to the State court. The reason was that an order to remand was not a final judgment, and no writ of error would lie. This case is supported by the rule laid down by Chief Justice Marshall, in Ex parte Bradstreet, 7 Pet. 634: and, if the decision of the present case depended only on the general rule, the power of the court to issue the mandamus would be undoubted. But, in our opinion, the matter is governed by statute. This will be manifest by reference to previous legislation on the subject. The fifth section of the act of March 3, 1875 (determining the jurisdiction of the circuit courts), provided that the order of the circuit court dismissing or remanding a cause to the State court should be reviewable by the supreme court on writ of error or appeal, as the case might be. 18 St. 470, 472. This act remained in force until the passage of the act of March 3, 1887, by which it was superseded, and the writ of error or appeal upon orders to remand causes to the State courts was abrogated. The provision of act of 1887 is as follows: "Whenever any cause shall be removed from any State court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed." 24 St. 553. This statute was re-enacted August 13, 1888, for the purpose of correcting some mistakes in the enrollment (25 St. 435); but the above clause remained without change. Io terms, it only abolishes appeals and writs of error, it is true, and does not mention writs of mandamus; and it is unquestionably a general rule that the abrogation of one remedy does not affect another. But in this case, we think, it was the intention of congress to make the judgment of the circuit court remanding a cause to the State court final and conclusive. The general object of the act is to contract the jurisdiction of the federal courts. The abrogation of the writ of error and appeal would have had little effect in putting an end to the question of removal, if the writ of mandamus could still have been sued out in this court. It is true that the general supervisory power of this court over inferior jurisdictions is of great moment in a public point of view, and should not, upon light grounds, be deemed to be taken away in any case. Still, although the writ of mandamus is not mentioned in the section, yet the use of the words, "such re

freight contracts. It was held that a contract of shipment is not rendered illegal by the single fact that the carrier gives the shipper a special rate, to be carried into effect by means of a rebate; and in order to defeat the shipper's action for the rebate, the carrier must show that the special rate is an unjust, unfair, or oppressive discrimination in favor of the shipper against the general public. A pooling arrangement entered into between rival railroad companies fixing freight rates, is prima facie illegal; and one of the companies which agreed to give the shipper a rebate, in violation of the pooling contract, must affirmatively show that the pool was formed to prevent ruinous competition, and not to establish unreasonable rates, unjust discrimination, or oppressive regulations, before it can rely on the shipper's knowledge of the pool rates as a defense to an action for the rebate. Elliott, J., says inter alia:

We preface our discussion of the central question, by saying that we are not at this point dealing with a Cise where a combination is formed for the purpose of preventing ruinous competition, and in which there is uo design to stifle fair competition. We are not required to decide, nor do we decide, that combinations fair to the public, untainted by any sinister design, and formed solely to prevent the destruction of business by unregulated competition, may not be valid. There are, we know, cases sanctioning the doctrine that combinations may be formed where the pur. pose is lawful, and the means employed not forbidden by positive law or high considerations of public policy. Central Trust Co. v. Ohio Cent. R. Co., 23 Fed. Rep. 306: Chamber of Commerce v. Railroad Co., 32 Amer. & Eng. R. Cas. 633; Leslie v. Lorillard, 110 N. Y. 534, 18 N. E. Rep. 363; Hare v. Railroad Co., 2 Johns. & H. 80; Manchester, etc., R. Co. v. Concord R. Co., 20 Atl. Rep. 383. The doctrine of these cases we neither affirm nor deny; we do, however, declare that they are not relevant to the matter here in dispute. It is, however, both appropriate and necessary to adjudge that a combination between common carriers to prevent competition is at least prima facie illegal. The doubt is as to whether any ultimate purpose can save it from the condemnation of the law; there can be no doubt that, unexplained, such a combination for such

a purpose is condemned by public policy. If such a combination can in any event be admitted to be legal, it can only be so where it is affirmatively shown that its object was to prevent ruinious competition, and that it does not establish unreasonable rates, unjust discriminations or oppressive regulations. If such a contract can stand, it must be upon an affirmative showing, and one so full, complete, and clear as to remove the presumption (to which its existence of itself gives rise) that it was formed to do mischief to the public by repressing fair competition. The burden is on the carrier to remove the presumption, and, until it is removed, the agreement providing for the combination gives way before this presumption, and the agreement must be held to be within the condemnation directed against all contracts which violate public policy. Coming to the question which awaits our judgment, and to which we have cleared our path, we affirm that a contract between corporations charged with a public duty, such as is that of common carriers, providing for the formation of a combination, having no other purpose than that of stifling competition, and providing means to accomplish that object, is illegal. The purpose to break down competition poisons the whole contract, and there is here no antidote which will rescue it from legal death. The element which destroys the contract is the purpose to stifle competition, for a combination of rival carriers moved and controlled by that purpose alone is destructive of public interest, and to the last degree antagonistic to sound public policy. The principle on which this rule rests is a very old one, and its place in the law is very firm. The overshadowing element in this case and in kindred cases is the purpose which influences the parties in uniting themselves in a combination, and concerning means to make its purpose effective; for the law abhors a combination which has for its principal object the suppression of competition in matters of commerce in which the public have an interest. Among the early cases establishing and enforcing the general principle which now occupies our attention, are those wherein it is held that an agreement to prevent or hinder competition at public sales is void. For illustrations, although there is a vast number cases, we need not look beyond our own reports. Our court has again and again enforced the general principle we have stated. Hunter v. Pfeiffer, 108 Ind. 197, 9 N. E. 124; Board v. Verbarg, 63 Ind. 107; Maguire v. Smock, 42 Ind. 1; Gilbert v. Carter, 10 Ind. 16; Forelander v. Hicks, 6 Ind. 448; Plaster v. Burger, 5 Ind. 232; Bunts v. Cole, 7 Blackf. 265. "No one," said the court in Hunter v. Pfeiffer, supra, "can predicate an enforceable right upon such an agreement." In support of this statement the court cited Atcheson v. Mallon, 43 N. Y. 147; Woodworth v. Bennett, Id. 273; Gibbs v. Smith, 115 Mass. 592; Hannah v. Fife, 27 Mich. 172. Relevant and striking illustrations of the scope and force of the general principle are supplied by what are known as the "Sugar Trust Cases," decided by the courts of New York-cases rich in argument and authority. People v. Sugar Refining Co., 3 N. Y. Supp. 401. See, also, Law Literature of Trust Combinations, 23 Abb. N. C. 317; People v. Sugar Refining Co., 121 N. Y. 582, 24 N. E. Rep. 834. The authorities collected in those cases, demonstrate the proposition that a trust or combination, having for its purpose the suppres sion of free competition, cannot live where the common law prevails. There are, however, cases which in their facts bear a closer resemblance to the present than the Sugar Trust Cases; but, after all, it may be said with propriety, the important thing to be secured

is a sound and salutary general principle, and not merely cases with closely resembling facts. There is no difficulty in securing the principle we seek, for, cases almost without number assert and enforce it in an almost endless variety of forms and phases. One of the cases near akin to the one before us is that of Hooker v. Vandewater, 4 Denio, 349. In that case competing canal companies combined and agreed to fix an established rate of freight and to divide profits. The agreement was adjudged illegal, the court saying, among other things, that "it is a general proposition that an agreement to do an unlawful act cannot be supported at law; that no right of action can spring out of an illegal contract; and this rule applies, not only when the contract is expressly illegal, but whenever it is opposed to public policy." Still closer is the resemblance between this case and that of Texas & P. Ry. Co. v. Southern Pac. Ry. Co. (La.), 6 South. Rep. 888. The court there held a "pooling contract substantially the same as the one described in the appellee's complaint to be void; and in support of its ruling referred to the cases of Gibbs v. Gas Co., 130 U. S. 408, 9 Sup. Ct. Rep. 553; Woodstock Iron Co. v. Richmond, etc., Co., 129 U. S. 644, 9 Sup. Ct. Rep. 402; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173; Arnot v. Coal Co., 68 N. Y. 558; Craft v. McConoughy, 79 Ill., 346; Morrill v. Railroad Co., 55 N. H. 537; Jackson v. McLean, 36 Fed. Rep. 213; Lumber Co. v. Hayes, 18 Pac. Rep. 392; Association v. Berghaus, 13 La. Ann. 209; Association v. Kock, 14 La. Ann. 168; Glasscock v. Wells, 23 La. Ann. 517, and Cummings v. Saux, 30 La. Ann. 207. The authorities, found on every hand, not only fully sup. port our conclusion that a contract between competing carriers forming a combination for the purpose of stifling competition is, prima facie, illegal, but many of them carry the principle to a much greater length. It is enough for us, however, that the law as it has long existed sustains the conclusion we here affirm, since it is neither necessary nor proper for us to go beyond the case before us for judgment.

BREACH OF MARRIAGE PROMISE-DAMAGES -EVIDENCE OF WEALTH OF DEFENDANT. Two recent cases-Chellis v. Chapman, 26 N. E. Rep. 308, decided by the New York Court of Appeals, and Dent v. Pickens, 12 S. E. Rep, 698, decided by the Court of Appeals of West Virginia-have held that in action for damages for breach of promise to marry, proof may be given of defendant's wealth. In the New York case the evidence offered and held admissible was of defendant's reputation for wealth, and Earl and Peckham, JJ., dissented "on the ground that it was error to receive proof of the defendant's wealth by reputation." In the West Virginia case, however, the evidence held admissible was the pecuniary circumstances of the defendant when the breach occurred, or during the time when he might reasonably have been expected to fulfil it.

TITLE TO LANDS UNDER FRESH WATER LAKES AND PONDS.

In vol. 13 of the CENTRAL LAW JOURNAL, p. 1, is an article on this subject by Judge Thomas M. Cooley. He evidently had special reference to some of the smaller lakes, not like those which the decisions liken to great seas, when he said: "In surveying the public domain for the purposes of sale, the government caused all that were too large to be embraced within a single subdivision of a section to be measured at the water line, and the dry land only was measured for sale." He added: "The waters of many of these lakes and ponds are receding gradually, and some after a time disappear. Under these circumstances, the question who owns the bed is one of considerable importance in the Northwest." We follow this question of his by referring, first, to some cases which have been decided since the date of his article, and will next draw some inferences based, in a great measure, upon his suggestions.

I. Such later decisions show that the proprietorship of such small inland lakes passes to the patentees from the U. S. of the bordering lands. Bristow v. Cormican, decided by the House of Lords in 1878,1 has an impor tant bearing. If that case had come under the observation of Judge Cooley, it would have influenced a more positive expression by him as to the rights of shore owners as to the proprietorship of such lakes. It was there determined, in regard to a lake called Lough Neagh, one of the largest lakes in Europe, containing nearly 100,000 acres, that "there is no case or book of authority to show that the Crown is of common right entitled to land covered by water, where the water is not running water forming a river, but still water forming a lake." Also, that the Crown has not of common right a prima facie title to the soil of a lake. It was stated by Lord Hatherley, that the said body of water was an inland lake, and therefore not a portion of land belonging to the Crown by reason of its being on the shore of the sea or a navigable strait or river.

The case just cited was noticed in Lincoln v. Davis, 53 Mich. 383, and it was said of it: "The holding that the Crown does not of

13 H. L. & Privy Council, part 2, page 641.

common right prima facie own the title to the soil under the waters of an inland lake, leads necessarily to the other conclusion that such soil belongs to the riparian proprietor." In Smith v. City of Rochester,2 which was decided in 1883, something more than two years after the date of Judge Cooley's article, the Court of Appeals of that State, speaking by Mr. Chief Justice Ruger, arrived at the conclusion that all rights of property to the soil under the waters of Hemlock lake (situated in Livingston county, N. Y., and being about seven miles long and one and a half miles wide, and having an outlet, etc.), were acquired by and belong to its riparian owners, while such rights only, over its waters, belonged to the State as pertained to sovereignty alone." The court found that the waters of the lake were a part of the navigable waters of the State, and had actually been navigated by the citizens of the State with scows, steamboats, and other craft for over thirty years, but that the rules of the common law applied, and that the State could not claim the rights of a riparian proprietor, nor could it claim the ownership of the bed of the pertained to its sovereignty over the territory lake, nor any other rights than those which in general. In Clute v. Fisher, decided in 1887, it was held that the soil under the water of inland lakes in that State did not belong to the general government nor to the State, after sale of the bordering lands by the government; that private ownership of lands bounded on navigable fresh water was not restricted to the meander line, and that this doctrine must

8

apply to the small inland lakes, whether navigable or not. Without extending citations bearing upon the question by Judge Cooley, as to who owns the bed of such small inland lakes after the sale of the bordering lands by the government, the matter may he formulated as follows: In the territory formerly known as the "Territory of the United States northwest of the river Ohio," now organized into States, came first in order as to proprietorship of the lands in general, the deed of cession from the State of Virginia of March 1st, 1784. Afterwards the United States caused the public domain to be surveyed for the purposes of sale, and, as supposed by Judge Cooley, the surveyors meandered vari

2 92 N. Y. 163. 356 Mich. 48.

ous fresh water inland lakes to give the topography of the country, and also to furnish data for estimating the quantity of the lands. Thereafter such lands were sold and granted by patents, according to the plats of the surveys. When such grants were made, the government made no reservation of the beds of lakes. The rights of the various shore owners, when considered as a body of proprietors, were substantially those of a single individual owner of the bordering lands, holding by patent or patents from the government. If there was a lake of such dimensions as to be wholly embraced within the lines of a section, the purchaser of that section, whether the contents of the lake were deducted in the estimates in the surveyor general's office of the acreage or not, would take the whole section, including the soil of the lake. It would be just so, in substance, as to the larger of such lakes, covering parts of different sections. In the surveys adjacent to such larger bodies of water, the surveyors extended the section lines to the margin of the body of water, and might not be able to fix more than two or three corners in a particular section; whereas but for the lake, he would have fixed three corners for each quarter section, or eight corners for each section. The section lines, which alone were required to be run, were extended to the lake, and it was impracticable or useless to fix, in the midst of such a body of water, a corner; therefore the corners were fixed on the land only, at the proper section corners away from the lake, and at the intersection of the section lines with the lake at its borders. The surveyor would next meander the lake, in order to report to the surveyor general's office the general topography of the territory surveyed, and give data for estimating areas, as before stated. Now, in any such case, after sale by the government of the bordering lands, it would not be expected that the government would attempt to take away the lake, the chief monument in the survey, and with reference to which sales were made to persons supposing themselves, when buying the bordering lands, to become riparian owners. It might as well be expected that the State of Virginia would come in and claim each lake as not having passed by the deed of cession, as that the United States would, under such circumstances, claim, adversely to the patentees of the border

ing lands, either the lake itself or any fringes or sinuosities of land found in after years to impinge upon its meandered bounds, or upon a meander line not marked on the government plats. Suppose, for example, that the field. notes of the original survey show that one of the section lines was, at a certain distance from the starting point, terminated at the margin of the lake, the remainder of what would have been such section line being in the lake; would it be expected that the government, after selling the tracts surveyed, would narrowly scan the correctness of the surveyor's estimate of the length of the line carried to the margin of the lake? It would seem that this should not be so. The lake itself should be treated as the monument.*

II. The rules which apply to the vast fresh water lakes or inland seas, such as Lake Michigan, differ from those which apply to the inland or small fresh water lakes of which we have been speaking. The great lakes, of which Lake Michigan may be taken as an example, are treated as great inland seas; and; as was held in Seaman v. Smith,5" the line at which the water usually stands when free from disturbing causes, is the boundary of lands in a conveyance calling for that lake." This is substantially the same as the rule which is applied to the salt waters, and to rivers within the ebb and flow of tide, and in general harmony with the doctrines of the common law as to waters which were by that law denominated public or navigable. In respect to the soil under such waters, it has not been held that it has been retained by, or belongs to the United States. It passed to the States, they having the same rights of sovereignty and jurisdiction in this respect as the original States. We do not speak, at present, of qualifications of the rights of the State in respect to the soil under waters of such a lake as Lake Michigan, as, for example, of the right of accretion which belongs to the shore owner. It is not in the line of this article to treat further of matters specially applicable to navigable waters, either of such as were navigable at the common law or of such as, under the decisions of some States, are placed on a somewhat similar footing as being navigable in fact. We merely note a difference

4 Piper v. Connelly, 108 Ill. 646. 5 24 Ill. 521.

6 Pollard v. Hagan, 3 How. 212.