Snow et al. v. Hill et al.

in to the eastern bank, for that was his position. As he approached the tow, an order to slow the engines was given, and at the same time witness said there was a tow ahead, either bound up or at anchor. The engines were slowed. The wheelsman said he could see no opening between the tow and the shore. Witness then directed him to put his helm to the atarboard, and go outside of the tow. As soon as witness perceived the tow was descending the river, the engines were ordered to be stopped and backed. This order was obeyed, but it did not prevent the collision. The Crescent City was not going with force when the collision occurred. Captain Davenport appeared just after the collision, when the bows of the boats were still together. This was, he thinks, about twice the length of the boat from the eastern bank. He is confident, when he first saw the tow, it was not in the middle of the river. If he could have seen between the tow and the eastern shore, he should have kept near the shore; but not seeing an opening, he took a western direction, which was his proper course.

Several witnesses were examined who were on board the Crescent City, all of whom, more or less, corroborated the impression of the pilot, that they were very near the eastern shore, and that between the tow and that shore there was not room for the Crescent City to pass.

From what has been stated in the pleadings and testimony, it will be seen that in this, as in other cases of collision, the theories of the respective parties are in conflict. Both cannot be true; and if either be so to the extent claimed, the right and the wrong are established.

The claimants allege that the Ocean Queen in charge of the steam tow-boat Star, with two other vessels, was descending the river Mississippi, about twenty miles below New Orleans, being near the middle of the river, rather nearer to the western than the eastern bank, was run into by the Crescent City, and injured as described.

Some eight or ten witnesses called in behalf of the claimants-some of them experienced pilots, and well acquainted with the river-being on board the Star tow-boat, or one of the boats fastened to it, and several of them witnessed the collision, a part of whose testimony is above stated, and they all conduce to establish the allegations in the libel. They show that the tow-boat was in her proper course in the middle of the river, or rather nearer to the western than the eastern shore, and this all the witneses admit was the usual and proper course. They also show that the Star had lights, and that there was no want of care in her management. Her course down the middle of the river was continued, and on the approach of the

Snow et al. v. Hill et al.

Crescent City, so as to threaten a collision, the hawser which fastened the brig to the stern was thrown off, so that the towboat might back; the engines were stopped, and the approaching boat was hailed, the bells rang, and the Star was inclined still further to the western shore. More than this could not be done, nor required of the tow-boat with her towage. Being in her right position, the Star had no reason to apprehend a collision until the danger became imminent. And when this was apparent, nothing more could be done by the tow-boat than was done. It would be a strange rule of navigation to require a boat descending in the middle of a river, more than twenty-four hundred feet in width, to keep out of the way of a vessel ascending the river close to the shore, a thousand feet from the descending boat, which should change its course to a direction across the river, out of its proper course, and with the view of crossing the bow of the descending boat. No stronger case could be put or imagined, to show fault in the ascending boat.

The theory of the Crescent City is unreasonable, and is unsustained by the evidence. It was ascending, as alleged, the eastern shore of the river, as near to it as could safely be navigated, until the light of the tow-boat was discovered, which was directly ahead, and so close to the shore as not to give room for the ascending boat to pass between it and the shore. This is untrue, if the facts be true as to the position of the tow-boat.

The position of the tow-boat is proved by experienced pilots and river men, well acquainted with the river for many years, and whose character for truth has not been questioned. They say that they could see both shores, and that from their knowledge of the river they cannot be mistaken.

To counteract this proof, there is nothing but the statements of the pilot of the Crescent City, who is proved to be ignorant and incompetent, and two or three witnesses on board that vessel, who were not shown to have a knowledge of the river. The pilot directed the helm to the starboard, with the view of passing the tow on the western side. And this course was continued until the collision occurred, by striking the larboard bow of the Ocean Queen. This bow was a little in advance of the Star.

Whilst one or two of the witnesses speak favorably of Foote, the pilot, the greater number speak of him as ignorant of his duties, and not fit for a pilot. And in addition to this, it seems he was not acquainted with the river. This is shown to some extent, as he seems to have relied more on the opinion of the man at the helm, than on his own knowledge and judg

ment.

Snow et al. v. Hill et al.

The place of collision, as appears from a survey of the river, is 2,420 feet wide; and if the tow was in the middle of the river, there were twelve hundred and ten feet between the tow and the eastern shore, which afforded room for three vessels to pass abreast, of the capacity of the Crescent City.

The statement of Foote is conclusive against his theory. He starboarded his helm, to pass the western side of the tow. His approach was seen by those on board the Star and the other vessels connected with her, some time, and preparations were made to avoid the collision. This shows that Foote was mistaken as to the position of the tow, and this mistake was fatal. Whether it resulted from his ignorance of the course of the river, or of his duties as a pilot, or from both, is immaterial. It shows that the Crescent City was in fault, as the colliding vessel.

It is alleged that the Ocean Queen had no lights, and that on the approach of the Crescent City the Star did not stop her engines and float, as the statute of Louisiana requires of the descending boat. The Ocean Queen was passive, following in the tow of the Star; her lights were not required to be hung The tow-boat Star was responsible for her safe navigation, so far as skill and knowledge of the river were concerned; but it was not responsible for the wrongs of other boats, which could not, reasonably, be avoided.

The statute of Louisiana referred to, we think, is not in the case; from the facts proved, its requirements could have had no application.

The Ocean Queen was bound to a foreign country; the Crescent City was carrying on an intercourse between New Orleans and the Atlantic States. The agency of the tow-boat did not change the character of the commerce in which the vessels were engaged. The Ocean Queen was propelled by steam, and whether the power be located in the tug or in the ship, can be of little or no importance. It was subject to the admiralty jurisdiction, and to the rules applied to vessels having the same motive power.

The Circuit Court decreed against the Tow-boat Company in solido, the sum of $19,465.79 damages, with interest thereon at the rate of five per cent. per annum from the 10th of January, 1853, till paid, and costs of suit; and that the Tow-boat Company, upon the payment of the above sum, shall have and recover from the Mail Steamship Company, &c., $9,732.89, the one-half of the sum decreed as above.

In this decree we think there is error. The tow-boat was not in fault. Her equipments and crew were such as the law required, and the usage of the service. In nothing did the

Holcombe v. McKusick et al.

tow-boat fail, which in the least conduced to the disaster. The Crescent City was wholly in fault, and the decree for the damages suffered by the Ocean Queen should have been against the colliding boat. The decree of the Circuit Court is therefore reversed, and the cause is remanded to that court, with directions to enter a decree for the above dainage against the Mail Steamship Company, their sureties, &c., and also the sum of two hundred and eight dollars and ninety-seven cents for the damage done to the tow-boat, and also for costs.

WILLIAM HOLCOMBE, PLAINTIFF IN ERROR, v. JOHN MCKUSICK, JONATHAN E. McKUSICK, CHRISTOPHER CARLE, HORACE K. MCKINSTRY, ELIAS MCKEAN, AND JOSEPH C. YORK.

Where there was a demurrer to some parts of a replication, and a motion to strike out other parts, still leaving in the replication some essential allegations, a judgment upon the demurrer and motion to strike out was not such a final judgment as can be reviewed by this court.

THIS case was brought up, by writ of error, from the Supreme Court of the Territory of Minnesota.

The case is stated in the opinion of the court.

It was argued by Mr. Bradley for the plaintiff in error, upon which side there was also a brief filed by Mr. Brisbin and Mr. Stevens, and by Mr. Cushing and Mr. Gillet for the defendants.

Mr. Justice NELSON delivered the opinion of the court. This is a writ of error to the Supreme Court of the Territory of Minnesota.

The suit in the court below was brought to recover damages for wrongfully entering the plaintiff's dwelling-house at Stillwater, Minnesota Territory, and doing great injury to the same, removing it from its foundations, damaging and destroying the personal property therein, &c.

The defendants, in their answer, set forth an act of the Leg islature of the Territory of Minnesota, incorporating the city of Stillwater, and conferring upon the municipal authorities the usual powers for the well government of the inhabitants thereof; the organization of the government of the city unde. its charter, and the election of its officers, and, among others, that one of the defendants, J. E. McKusick, was elected marshal. The answer set forth, also, an ordinance passed by the city council, in pursuance of authority given by the charter, which, among other things, provided for the removal of ab

Holcombe v. McKusick et al.

structions in the public streets and landing places, and conferred authority upon the marshal to remove such obstructions. The answer then sets forth that the plaintiff's dwelling was erected upon Main street in the city, and obstructed the free use of the same, and had become a public nuisance; and that the marshal removed the said obstruction, in pursuance of the authority conferred upon him by the ordinance, which is the act complained of by the plaintiff; and that the other defendants were called in to his assistance in the performance of this duty. The answer then denies the special damage set up in the complaint.

The plaintiff, in reply to the new matter set forth in the answer, denies, according to the formula prescribed by the Minnesota code, the existence of the charter of the city of Stillwater, set forth in the answer, and avers that no act of incor poration was ever published, as prescribed by the laws of the Territory. The plaintiff then sets out at large a charter of the city, which was published according to law; denies the election of the municipal authorities under the charter, also the existence of any city ordinance passed by the city council; and the election of the defendant, McKusick, his qualification in the office, or that he ever entered upon his duties. The plaintiff also denies that his dwelling-house was erected on Main sreet, or that it obstructed the same.

There is also a long statement respecting the title to the land embraced within the corporate limits of Stillwater, which it is not material to set forth. The plaintiff further denies that, in making the removal of the dwelling-house, the defendants used proper care and caution to prevent unnecessary damage.

The defendants have demurred to all that portion of the reply which commences with denying the existence of the act of incorporation of the city of Stillwater, and including the charter set forth in the answer. They demur also to the allegation in the answer, stating that the dwelling-house was erected prior to the 12th day of September, 1848; and, also, to all that part of the answer relating to the title to the land embraced within the city of Stillwater.

The defendants also made a motion to strike out certain portions of the reply, which was granted, but it is not material to notice the portions particularly.

The District Court of the Territory sustained the demurrer of the defendants to the portions of the plaintiff's reply above referred to, with leave to the plaintiff to amend. No amendment having been made, judgment upon the demurrer was made absolute, with costs. An appeal was taken to the Su