Opinion of the Court. The condition for prepayment remained, and the company was entitled to notice of acceptance and prepayment of the premium before the contract for insurance was complete. After Perrin had rejected the policy it remained in his hands, not as an executed contract of insurance, but as a proposal to insure which he must accept by payment of the premium, before the company would be bound." In Harnickell v. New York Life Insurance Company, 111 N. Y. 390, the plaintiff, who was the owner of several policies of life insurance issued by different companies, was applied to by the agent of the defendant to take out policies in his company. The result of the negotiations between the plaintiff and the agent was an agreement to take out policies in the defendant company, providing he could surrender the policies he already had to the companies issuing them and obtain satisfactory surrender values thereof. In pursuance of an application duly prepared by the agent and signed by the plaintiff, the defendant company issued two policies, and sent them to its agent. The latter, under the agreement, delivered them to the plaintiff, who gave two notes and a check in payment therefor, which were returned by the agent to the company. The plaintiff, having after some effort failed to make any satisfactory arrangement with the other companies, returned the policies to the defendant and demanded a surrender of his notes and the check. The company declining to make such surrender, this action was brought, and it was held that the policies were delivered only conditionally, that the condition had failed, and that, therefore, the plaintiff could rightfully surrender the policies and obtain a return of his notes and check. The opinion of the court in that case was delivered by Judge Peckham, now a justice of this court, and in it, after referring to the agreement, it was said (p. 398): "This, we think, was clearly a condition precedent to the full delivery and acceptance of these policies issued by the defendant, and until such condition precedent was complied with or waived, no fully executed and valid contract of insurance existed between these parties." See also Nutting v. Minnesota Fire Insurance Co., 98 Wisconsin, 26. Opinion of the Court. In the case at bar the learned justice of the Court of Appeals, who delivered the opinion of the majority, after referring to other cases of conditional delivery, (some of which we have noticed in this opinion,) stated as a reason for distinguishing this case: "The contracts and instruments involved in those cases are very different from the policies of insurance sued upon. These are elaborate instruments and abound in stipulations and conditions. Among these, note the following, that is embraced in the general clause recited in the preliminary statement: "This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto.' "This and other clauses limiting the powers of agents and requiring all additional terms and contitions to be endorsed in writing upon the policies, were devised by the insurance company, itself, to prevent questions concerning the conditions upon which its policies shall be 'made and accepted' from being left to the vagueness and uncertainty of oral proof. * * * * * "The condition in this case was one in addition to those contained in the policies and upon which they were 'made and accepted,' and was not in writing endorsed upon them or executed simultaneously therewith. "Our conclusion is, that by reason of the nature and terms of the policies, it is not competent to show their delivery to the insured upon a verbal condition, making their existence as contracts depend upon the subsequent ratification of another agent." The argument is that because the policies contained various stipulations restricting the power of the agent, it is incompetent to prove that the contract never came into operative force by a final unconditional delivery. But these stipulations apply only to a contract which has become executed and do not apply where the contract has not been completed by an absolute delivery of the instrument. No instrument could be more absolute than a promissory note, yet it is clear from the Opinion of the Court. authorities that parol evidence is admissible to explain its possession by the payee, and show that that possession was not the result of a final delivery, but only of one upon condition, and also that the condition failed. Possession cannot be conclusive upon the question of delivery. Otherwise, a possession wrongfully, even feloniously, obtained would bind a party to a contract when, perchance, much remained to be done before the maker was ready to assume the obligations of the contract. There is no stipulation in this policy which either in terms or by implication forbids such a transaction as was in fact had between these two agents. There is no attempt, by parol testimony, to contradict any stipulations of the policy, something which we have recently held cannot be done. Northern Assurance Company v. Grand View Building Association, 183 U. S. 308. With reference to this question we quote approvingly from Harnickell v. New York Life Insurance Company, 111 N. Y. supra, (pp. 398, 399, 400): "The provisions contained in the policies, which are above quoted, relate to the policies themselves after they should become executed instruments between the parties. All negotiations had before such event, and all parol agreements between the assured and the agent of the defendant, would have been merged in the contract evidenced by the policies themselves, had the negotiations been carried out as intended, and such policies been absolutely delivered to and accepted by the plaintiff. Hence any oral representation or statements made by the agent of the company, and not contained in the contract of insurance, would have formed no part thereof, and could not have been insisted upon by the plaintiff as against the defendant company. Insurance companies may, with entire propriety, provide in the same manner as the defendant provided in the policies in question, in cases where the contract of insurance becomes executed. There it is highly necessary and important for the company to know exactly how far they are bound and the entire nature of the contract which has been made between them and the assured. But an agreement between an individual and the agent of a company, by which the policy is accepted only upon conditions relating to the same, Syllabus. and an agreement to hold the policy until the performance of those conditions, or a failure to perform, cannot, as we think, result in any serious inconvenience to the company. But whether that is so or not cannot alter the right of an individual to refuse to be bound by a policy of insurance until he has absolutely received and accepted it." For these reasons we are of opinion that the facts found show that there was no final and absolute delivery of the policies; that the condition upon which they were deposited with the agent of the insured failed, and, therefore, that at the time of the fire there was no subsisting contract of indemnity between the company and the insured. The judgment of the Court of Appeals is reversed and the case remanded to that court with instructions to set aside its judgment and enter one affirming the judgment of the trial court. MR. JUSTICE BROWN Concurred in the result. MOBILE TRANSPORTATION COMPANY v. MOBILE. ERROR TO THE SUPREME COURT OF THE STATE OF ALABAMA. No. 62. Argued November 3, 1902.-Decided January 5, 1903. 1. A motion to dismiss for want of a Federal question cannot be sustained when the title involved depends upon a Spanish grant claimed to have been perfected under the treaty of 1819 with Spain, and a patent of the United States in alleged confirmation of such claim. 2. It has been conclusively settled by this court that the State of Alabama, when admitted to the Union, became entitled to the soil under the navigable waters below high water mark within the limits of the State, not previously granted. Pollard's Lessee v. Hagan, 3 How. 212. The act of the legislature of Alabama of January 31, 1867, conveying to the city of Mobile the shore and soil under Mobile River is not unconstitutional as impairing vested rights of owners of grants bordering on Mobile River, as the rule in Alabama that a grant by the United States of lands bordering on a navigable river includes the shore or bank of such river and ex Statement of the Case. tends to the water line at low water, does not relate to land bordering on tidal streams. As the State held the lands under water below high water mark as trustee for the public it had the right to devolve the trust upon the city of Mobile. 3. All the land below high water mark having passed to Alabama on her admission to the Union in 1819, there was nothing left upon which a patent of the United States dated in 1836, could operate, and the person claiming to hold land below high water mark under said patent has no vested interest in such land, which would require compensation or proceedings in eminent domain on the part of the State to take such lands. There is a difference between the legislature of a State granting land beneath navigable waters of the State, and below high water mark, to a private railroad corporation and granting it to a municipal corporation whose mayor, aldermen and common council are created and declared trustees to hold, possess, direct, control and manage the shore and soil granted in such manner as they may deem best for the public good. Illinois Central R. R. Co. v. Illinois, 146 U. S. 387, distinguished. While this court can decide as an original question the power of a State to convey property to a corporation, when the case comes from the Circuit Court of the United States, if the case comes up on writ of error to a state court, and the highest court of the State has itself put a construction upon an act of its own legislature, and upon its conformity to the constitution of the State, the decision of such court upon those questions is obligatory on this court. Defences appearing on the record in this case, which are of a local nature, present no Federal question. THIS was an action in ejectment brought in the state Circuit Court by the city of Mobile against the Mobile Transportation Company, to recover a portion of the shore and bed of the Mobile River in the city of Mobile, between high water mark and the channel line or point of practical navigability. In support of its title the city relied upon the following acts: 1. An act of Congress approved March 2, 1819, entitled "An act to enable the people of Alabama Territory to form a constitution and state government, and for the admission of such State into the Union on an equal footing with the original States." 3 Stat. 489. 2. An ordinance of the convention of Alabama adopted August 2, 1819, accepting the proposition offered by Congress. Code of Alabama, 1876, p. 68. 3. A resolution of Congress of December 14, 1819, declaring |