ance.

Several tug-boats responded after more or less delay, but first gave assistance to the Alberto in rescuing her from her dangerous position on the wharf, and afterwards one of them was sent after the barge, which had meanwhile drifted with the current of the eddy and the force of the wind up near the shipping, just below the head of Canal street, where it was rescued by libelants as aforesaid.

The libelants' demand for compensation is resisted on the grounds that the barge was neither derelict nor in danger, and that the services of libelants were not valuable, but were officious, without warrant and authority, and were for the purpose of fleecing and extorting money from claimants. From the evidence I conclude that the barge was not derelict, but was in danger of damaging itself and of doing great damage to other shipping; and while the libelants were no doubt actuated with the hope of reward, they rendered service in good faith, with sufficient warrant, and the service so rendered was valuable. That the services were rendered with a view to reward ought not to prejudice the libelants' claims in a court of admiralty; for, as is so well said by Mr. Justice BRADLEY, "salvage is a reward for meritorious services in saving property in peril on navigable waters, which might otherwise be destroyed, and is allowed as an encouragement to persons engaged in business on such waters and others to bestow their utmost endeavors to save vessels and cargo in peril." See Sonderburg v. Tow-boat Co. 3 Woods, 146.

The answer charges that the libelants knew the circumstances under which the barge was turned adrift, and that she was not abandoned, and particularly alleges that she was in no danger; but these charges are not supported by evidence. Under the principles that govern courts of admiralty in salvage cases, I am unable to see any sound reason for withholding compensation in this case. The claimants should have complied with the promise of the master of the Alberto, and paid or tendered a small sum at the outset, and the court would have sustained the tender; but as the claimants, instead, have resisted, largely increasing the expenses of libelants, and at the same time have unjustly vilified them, I feel it my duty to make such allowance as will be really compensatory for all but the vilification.

A decree may be entered awarding each of the libelants $25, and condemning the claimants and their surety, on the release-bond, to pay the same, together with all costs in the case.

MILLER and another v. WATTIER.

{Circuit Court, D. Oregon. June 17, 1885.)

1. REMOVAL OF CAUSE - SUIT ARISING UNDER A LAW OF THE UNITED STATES. A suit by a vendee of the state under the act of October 26, 1870, providing for the selection and sale of the swamp and overflowed lands granted to the state by the act of March 12, 1860, to enjoin the commission of a nuisance on the land so purchased, involves the question of whether said land was granted to the state by said act at the time of its selection by the state under said act of 1870, and therefore arises under said act of March 12, 1860, and is removable into this court under section 2 of the act of March 3, 1875, without reference to the nature of the other questions that may be involved in it.

Suit to Enjoin the Commission of a Nuisance.
N. B. Knight, for plaintiffs.

H. Y. Thompson and George H. Williams, for defendant. DEADY, J. This is a suit in equity, brought by the plaintiffs in the state circuit court for the county of Marion, to enjoin the defendant from maintaining a certain dam on Little Pudding river, on the ground that the same causes the water to flow back on the plaintiffs' lands, and is therefore a nuisance. The defendant answered the complaint, and then removed the cause to this court on the ground that the controversy in the case arises under the act of congress of March 12, 1860, granting the swamp and overflowed land in Oregon to the state. The plaintiffs. now move to remand the cause for the reasons following:

(1) It does not appear that a copy of the record has been filed in this court as required by law. (2) It does not appear that the case is one arising under the constitution or laws of the United States. (3) The court has no jurisdiction of the parties or subject-matter.

In support of the first point, it is stated by counsel, and such appears to be the fact, that the clerk of the state court, instead of making a "copy" of the record for this court, has put together the original papers, with copies of the journal entries, and delivered them to the defendant for that purpose.

The act of 1875 (18 St. 471) requires the party removing a cause to file "a copy of the record" in the court to which it is removed. The law devolves on the party, and not the clerk, the duty of procuring and filing a copy of the record; but if the clerk refuses to furnish such copy when duly demanded, he may be proceeded against both civilly and criminally. But there is no virtue or convenience in the copy that the original does not possess, and the former is only required because it would be inconvenient, if not improper, to deprive the state court of the latter, -the usual and proper evidence of acts done and suffered therein. But the fact is, the state court has voluntarily furnished the defendant with a portion of the record, instead of a copy of the same, for filing and use here, and I do not think the plaintiffs ought to be heard to object to it. They are not injured nor inconvenienced by it; in fine, it does not concern them. For all the purposes of removal, and jurisdiction to hear and determine the cause, the original is equivalent to the copy; and in filing it the defendant has substantially complied with the statute. It is not unlikely that the original papers were sent here by mistake of the clerk; and, if such is the case, and the clerk shall apply to have the error corrected, it will be proper to allow the originals to be withdrawn from the files of this court, and copies thereof filed in their place. There is no claim that this court has jurisdiction of this case by reason of the citizenship of the parties. It was removed on the ground that it arose under a law of the United States, and therefore it is not necessary to further consider the third point made in support of the motion to remand.

A statement of the facts contained in the proceedings is necessary to the consideration of the second point.

The plaintiffs allege in their complaint that on March 12, 1860, 12 certain parcels of land, containing in all 877.67 acres, and described therein as being lots and subdivisions of certain sections, according to the public surveys, situate in Marion county, and constituting "a part of what is known as Lake Labish," (evidently a mere early phonetic spelling of the French La Biche or Deer lake,) were, and still are, "swamp and overflowed," within the meaning of the act of congress of that date, and as such were by the same granted to the state of Oregon; that in pursuance of an act of the legislative assembly of Oregon, entitled "An act providing for the selection and sale of the swamp and overflowed lands belonging to the state of Oregon," approved October 26, 1870, the board of commissioners for the sale of school and university lands, on November 11, 1871, duly selected said lands as inuring to the state of Oregon under said act of March 12, 1860; that on April 9, 1872, said board duly sold said lands to the plaintiff, John F. Miller, "as swamp and overflowed," he then paying 20 per centum of the purchase price, and receiving from "said board his certificate of the purchase of the same," who afterwards sold an interest therein to the plaintiff, W. P. Miller; that in 1882 the selection of said lands as aforesaid was approved by an agent of the United States "specially appointed for the purpose of examining and reporting upon the character of the lands claimed by the state as swamp and overflowed," but that patents have not been issued to the state for the same; that the defendant is the owner of a grist and saw mill on Big Pudding river, in said county, and known as "The Parkersville Mills;" that said mills are near Little Pudding river, "a constant stream" running through a portion of said lands, "in a clearly defined and distinct channel, where it has been accustomed to run from time immemorial, and near the northeastern extremity of said lands empties into Big Pudding river, a short distance above the defendant's mills;" that near said point the defendant "wrongfully and unlawfully maintains and keeps a dam about seven feet high across Little Pudding river, whereby its waters "are raised and thrown over its banks, flooding a scope of country," including said lands, "of about five miles long and from one-half to three-quarters of a mile wide, and rendering the same utterly worthless;" that if said dam was removed, and said waters "allowed to flow in their natural channel," said "lands could be drained and reclaimed," and "made valuable for hay and pasturage;" that the only practical method of draining said lands is through the channel of the Little Pudding river, and so long as said dam remains "as it now is" they cannot be reclaimed, and the plaintiffs cannot perfect their title to the same; and that, although said dam has been adjudged a nuisance by the supreme court of the state, and the defendant has been requested by the plaintiffs to remove the same, he still continues to maintain it, "to the great nuisance of plaintiffs' said lands."

By his answer the defendant first simply denies seriatim the allegations of the bill, except the payment to the commissioners, and his own ownership of the Parkersville mills, and then proceeds to answer them in detail. And, first, he alleges that prior to 1850 William Parker took up and settled on donation No. 49, containing 640 acres, under the donation act of September 27, 1850, and on April 28, 1875, a patent was issued therefor, the east half to his widow, and the west one to his heirs at law; that the southern part of the western boundary of said donation abuts on the north-eastern end of Lake La Biche, (Labish,) and Little Pudding river enters said donation through said part of said boundary, and thence flows across the same, where it has from time immemorial; that in 1850 said Parker erected a dam about six feet high across said river, near where it enters said donation, whereby its waters were raised and set back on said lake, which is an expansion of the river, and constructed a race therefrom on said donation about 80 yards long, wherein to conduct the water of said river for manufacturing purposes, and built a saw-mill at the lower end thereof; and that in 1852 he also built a grist-mill near the same point, which was, and ever since has been, run by water flowing through said race; that such dam remains where and as it was first erected, and the water continues to flow through said race as it has since 1850; that said dam, race, and mills are all on the west half of said donation, of which the defendant is the owner, together with the land on which they are situate, and all the water-power and privileges thereunto appertaining, and is now profitably engaged in running said mills by means of the water flowing through said race; that said mill property, with the water-power and privilege aforesaid, is worth $12,000, but if said dam is removed, and the water diverted therefrom, it will be of little value, and the defendant will be damaged thereby not less than $10,000.

The answer then avers: (1) That the United States surveys were extended over these lands in 1852, including the usual subdivisions; that the alleged listing and locating of said lands is illegal and void, because the same was not made according to the legal subdivisions, and because the same and each parcel thereof is located in legal subdivisions, the greater part whereof is not wet and unfit for cultivation, and are therefore reserved to the United States by the act of March 12, 1860, and are now a part of the public domain. (2) That although the said lands were surveyed in 1852, and there was a regular session of the legislature of Oregon held in 1862, and biennially ever since, the alieged selection of said lands was not made until November, 1871, and therefore the act of March 12, 1860, does not apply to them; and that no selection of said lands has been approved by the commissioner of the general land-office, nor has any patent been issued for the same to the state. (3) That although 10 years have elapsed since the payment of 20 cents an acre to the state for said lands, no proof of any reclamation thereof has been made, nor have said lands been reclaimed, but they are now in the same condition, as to being wet and uncultivatable, that they were at the date of the alleged purchase from the state. (4) That the plaintiffs have not, nor never had, the possession of said lands, or any right thereto; nor have they or either of them any right, title, or interest in or to the same. (5) That after the defendant heard that the plaintiff John F. Miller claimed said lands as swamp, he called on him and proposed some arrangement by which he could protect his property from injury resulting from the diversion of the water that supplied his mills, when said plaintiff told the defendant, in substance and effect, that such an arrangement was unnecessary, as the latter "held the key to the situation," and that no water could or would be drawn off said lands without his consent, and that, relying on said statement, the defendant expended about $8,000 in improving said property; wherefore, plaintiffs are estopped, without the defendant's consent, from reducing the water above his dam. (6) That the defendant and those under whom he claims have been in the undisturbed, open, and notorious possession and use of the premises, including said water-power and privilege, for more than 30 years, and that he has acquired a right thereto by prescription. (7) That prior to 185o, and the construction of said dam, Lake La Biche (Labish) was a permanent body of water created by the expansion of Little Pudding river, and said lands were then covered with water, which the unobstructed channel of said river would not drain off and make fit for cultivation.

On the argument of the motion to remand, counsel for the plaintiffs maintained the proposition that it is not sufficient to give this court jurisdiction that it is asserted in the answer or petition for removal that the case arises under a law of the United States, or that the construction of one might become necessary in the course of the trial of it; citing Millingar v. Hartupee, 6 Wall. 258, and Gold Washing & Water Co. v. Keyes, 96 U. S. 199. The proposition is not denied, and the authorities support it. But this is quite a different case from either of those.