company's property without due process of law, contrary to U. S. Const., 14th Amend., where such scales have no direct part in transportation, nor in the business of selling at the terminal yards, but are merely a convenience which gives the station possessing one an advantage over a place where none exists. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. 832-834; Dec. Dig. § 297.] [No. 225.] operations of said defendant's plant and, ping stations on its line, takes the railway works. He shall be given by it at all times free and full access to its books, records, and premises, and during the next six months he shall make frequent and careful observations at least once each fortnight of the conditions of the plant and works, the manner of their operation, the quantity and character of smoke emitted therefrom, and the resulting effect upon vegetation within the vicinity and in the state of Georgia. At the end of that time he shall make a full report of his observations, ac- Argued April 16, 1915. Decided June 14, companied by recommendations as to appropriate future action. To cover necessary costs and expenses incident to these services and the reasonable compensation of the inspector, the defendant Ducktown Sulphur, Copper, & Iron Company, Limited, is hereby directed to deposit with the clerk of this court, within ten days, the sum of $5,000. Of this sum not exceeding $2,000 shall be paid from time to time, prior to October 12th next, by the clerk to the inspector, upon his written application, to cover costs, expenses, and on account of his services, etc. (3) That said defendant hereafter shall not permit the escape into the air from its works of fumes carrying more than 45 per cent of the sulphur contained in the green ore subjected to smelting. (4) That it shall not hereafter permit escape into the air of gases the total sulphur content of which shall exceed 20 tons during one day from April 10th to October 1st of each year, or exceed 40 tons in one day during any other season. (5) That the cause will be retained upon the docket for such further action as may be proper, and either party may at any time hereafter apply for relief as it may be advised. I 1915. N ERROR to the Supreme Court of the State of Minnesota to review a judgment which affirmed a judgment of the District Court of Todd County, in that state, upholding an order of the state railroad and warehouse commission directing a railway company to install a scale at a specified station on its line. Reversed and remanded for further proceedings. See same case below, 122 Minn. 55, 141 The facts are stated in the opinion. Mr. Lyndon A. Smith, Attorney General of Minnesota, and Mr. Alonzo J. Edgerton for defendant in error. *Mr. Justice McReynolds delivered the opinion of the court: An order of the Minnesota Railroad & Warehouse Commission (October 26, 1911) directing the Great Northern Railway Company to erect within forty-five days at least a 6-ton scale in its stockyard at the village Bertha, Todd county, was sustained by the supreme court of the state (122 Minn. 55, 57, 58, 141 N. W. 1102); the cause is here by writ of error; and it is contended that enforcement of order, as promulgated, would deprive the railway of its property without due process of GREAT NORTHERN RAILWAY COM- law, contrary to the inhibition of the 14th PANY, Plff. in Err., (238 U. B. 840) V. June 1, 1915. STATE OF MINNESOTA EX REL. RAIL CONSTITUTIONAL LAW (§ 297*)-DUE PRO- COMPANY TO INSTALL SCALES. Amendment. The supreme court said: "At the trial the appellant offered no evidence, but rested upon the evidence presented by the respondent and the facts are undisputed. They are in substance as follows: That in the year 1910 stock was shipped in carload lots from 259 of appellant's stations in the state of Minnesota; that the number of carloads so shipped from the different stations varied from 1 at each of 32 stations to 414 at the station of Jasper; that appellant has installed stock scales, each of 6-ton capacity, at 54 of these The enforcement of an order of a state railroad commission directing a railway company to erect in its stockyards in a specified village a scale of at least 6 tons capacity, without affording the railway company an opportunity to abate any existing discrimination against such village stations; that these scales are located adby discontinuing the use of similar scales jacent to the stockyards, but are not adalready installed at some other stock-ship-jacent to nor connected with the railway For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 35 S. C.-48. 089. *345 track or buildings; that they are convenient | in Washington ex rel. Oregon R. & Nav. for and are used by dealers and stock rais- Co. v. Fairchild, 224 U. S. 510, 524, 56 L. ers in buying and selling, but no obligation ed. 863, 868, 32 Sup. Ct. Rep. 535. A takto ship over the railway is imposed by such ing of railroad property under administrause; that stock raisers who would other- tive regulation must “be tested by considerwise market their stock at Bertha some ing whether, in view of all the facts, the times take it to Hewitt or Eagle Bend, a taking was arbitrary and unreasonable, or longer distance, in order to have the use was justified by the public necessities which of the scales installed at those places; that the carrier could lawfully be compelled to such scales tend to draw the stock business meet." The facts being established, the to and concentrate it at the places where question then presented is whether, as matthey are located; that where these scales are ter of law, they are adequate to support a available shippers are accustomed to weigh finding of requisite public necessity, the their stock, for their own convenience and mere declaration of a commission is not information, immediately before loading for conclusive. Interstate Commerce Commisshipment, but these weights are not used sion v. Louisville & N. R. Co. 227 U. S. 88, as a basis for freight charges, nor in any 91, 57 L. ed. 431, 433, 33 Sup. Ct. Rep. transactions between the shipper and the 185; Florida East Coast R. Co. v. United railway company, nor in sales made at the States, 234 U. S. 167, 185, 58 L. ed. 1267, terminal stockyards; that, after stock is 1271, 34 Sup. Ct. Rep. 867. loaded, the car load is weighed at some suitable point upon track scales which are under the supervision of the state, and the freight charges and all the transactions between the shipper and the company are based exclusively upon this weight; and that these stock scales are not used in any manner in the business transacted between the railway company and its patrons. "The witnesses testifying for respondent insisted that stock scales were a convenience, if not a necessity, in dealing in stock, and that a town having such scales possessed an advantage, as a stock market, over a town that did not, but frankly admitted that these scales had no direct part in the business of transportation, nor in the business of selling at the terminal yards. "As scales are a convenience, and, probably, a necessity in dealing in stock, and tend to cause stock to be collected for shipment at the places where they are available, to the disadvantage of those places where they are not available, and are undoubtedly furnished for the purpose and with the view of securing the transportation of stock from points at which they are located, it is the opinion of a majority of the members of the court that the evidence submitted, together with the fact that the company considered such scales of sufficient importance to its business to furnish them voluntarily at 54 of its stockyards in this state, is sufficient to support the finding that such scales pertain to the transportation facilities which the Commission may require of a railroad, and that the refusal to supply such scales to the station in question was a discrimination against it." Manifestly, if the order is enforced plaintiff in error's property will be taken. Whether this would be without due process of law depends upon the special circumstances. The applicable principles were announced It appears from the supreme court's findings that 6-ton scales installed by the railway at 54 of its 259 stock-shipping stations in Minnesota were not used in transactions between carrier and shippers. All witnesses declared these instruments had no direct part in transportation or selling at terminal yards, but were convenient in stock dealings, and a station possessing one had an advantage over the place where none existed. The business of a railroad is transportation, and to supply the public with conveniences not connected therewith is no part of its ordinary duty. The obvious purpose of the challenged order was to enforce installation at Bertha of a scale like those at Eagle Bend and Hewitt, and dedicated to same use. Under admitted facts, unless justified by alleged unlawful discrimination, we think this was an arbitrary and unreasonable exercise of power. It is no answer to say, as counsel do, that the Commission has "general authority to require railroad companies to supply the necessary demands of the public along transportation lines; that it has a right to require the company to build and maintain such facilities as are necessary for the public needs." The demands upon a carrier which lawfully may be made are limited by its duty, and the present record conclusively shows the required structure had no direct relation thereto. See New Mexico Wool Growers' Asso. v. Atchison, T. & S. F. R. Co. M., 145 Pac. 1077. N. The railway company does not presently controvert the finding that scales at Eagle Bend and Hewitt brought about discrimination, but maintains the Commission acted arbitrarily and unreasonably in seeking to eliminate this by peremptorily requiring construction of another without giving opportunity to accomplish the same result through discontinuing the use of those al *846 *847 ready installed. This contention is sound and must be sustained. Conceding power to inhibit discrimination, the Commission could not exercise it unreasonably by needlessly taking property, or, what comes to the same thing, obliging incurrence of expense wholly unnecessary. It by no means follows, simply because a railroad voluntarily supplies a convenience at some stations which attracts trade, that it can be commanded positively to do likewise at other places along the line. A railroad's possessions are subject to its public duty; but beyond this and within charter limits, like other owners of private property, it may control its own affairs. Discontinuing the use of existing scales would abate the alleged discrimination and probably entail little, if any, outlay. The Commission's order precluded use of this method to bring about lawful conditions, and therein, we think, was plainly arbitrary and unreasonable. Missouri P. R. Co. v. Nebraska, 164 U. S. 403, 417, 41 L. ed. 489, 495, 17 Sup. Ct. Rep. 130; Donovan v. Pennsylvania Co. 199 U. S. 279, 293, 50 L. ed. 192, 199, 26 Sup. Ct. Rep. 91; Missouri P. R. Co. v. Nebraska, 217 U. S. 196, 206, 54 L. ed. 727, 731, 30 Sup. Ct. Rep. 461, 18 Ann. Cas. 989. The judgment of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. (238 U, S. 325) PRODUCERS OIL COMPANY, PIff. in Err., V. LYDIA HANZEN, Sam W. Mason, Dillard Earl H. Barnes. NAVIGABLE WATERS (8 37*) PUBLIO A tract of not less than 40 acres of high ground lying between the platted traverse lines of a lot in a fractional section and the waters of a navigable stream will not be deemed to have been included in a patent for such lot calling for 12.84 acres, issued to the occupant at whose request the survey was made, where the field notes of the survey show the existence of land outside the traverse lines, and the official plat delineating the surveyor's courses, and specifying acreage of the several subdivisions, cannot be said to indicate a water boundary beyond possible question, and where the owner and occupant for more than thirty years never occupied or exercised any act of corporeal possession outside the traverse lines. Mr. Justice McReynolds delivered the opinion of the court: Plaintiff in error-the Oil Company-instituted this action July 1, 1910, in the district court, Caddo parish, Louisiana, for the purpose of establishing its right to possession of part of lot No. 1, section 4, township 20, north, range 16, west, suddenly become very valuable through discovery of gas and oil. The petition alleges that the United States in 1874 sold to one Pitts lots 1 and 2, section 4, forming a projection known as "Wilson's Point," surrounded on three sides by waters of James bayou, a navigable stream; that he immediately entered, and, together with his successors, remained in peaceful, complete possession until April 2, 1910, when defendants in error, without knowledge of Noel, then owner, wrongfully entered upon part of lot No. 1, built a wire fence and placed a keeper thereon; that April 15, 1910, by notarial act duly recorded, the Oil Company purchased both lots from Noel and became subrogated to his rights; and when it came to subject the whole property to actual possession a portion was found occupied as above indicated. A writ of sequestration, issued contemporaneously with filing of petition, was subsequently dissolved upon motion, a proper bond having been given, conditioned not to commit waste, and to make faithful restitution of fruits if so required. Answering, defendants in error denied they were occupying any part of lot No. 1, section 4, but said they were and had been since April 2, 1910, in possession of 87.9 acres situated in sections 3 and 4, township 20, described by metes and bounds, "which said property your respondents located under the laws of the United States relative to the location of mining lands and upon which they have made a discovery of oil and gas, and are, therefore, entitled to the full use and enjoyment and to a patent from the United States." They also denied the Oil Company or any of "its ancestors in title ever had or claimed possession of any part Decided June of the property so located by your respondents; but, that, on the contrary, your re [Ed. Note. For other cases, see Navigable Watera, Cent. Dig. §§ 201-226, 285; Dec. Dig. 37.] [No. 165.] Submitted March 3, 1915. 14, 1915. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes any part of any lake or bayou, and was left out of the surveys of the United States, and which remained the property of the government until said location had been made thereon by your respondents." 188. spondents aver that the said land was never | at any time, and which never constituted in the possession of any person until the location by them." Further answering they averred that "Thomas H. Pitts purchased from the United States, among other property, lot 1 of section 4, township 20 north of range 16 west, containing 12.84 acres, There were introduced in evidence patents and that he paid for the same with military from the government, field notes and attendland warrants, as containing that acreage; ing documents, official plat, sundry conthat the said lot 1 of section 4 is figured veyances, contour maps,-one prepared by and described on the surveys of the United Williams for plaintiff company, another by States by certain metes and bounds, shown Barnes for defendants,-Barbour's survey of on the said plat, the eastern boundary of sections 9, 10, 15, and 16, and photographs said lot, as well as the other boundaries showing landscape and vegetation. Witthereof, being shown on the said map; that nesses were examined in behalf of both sides the east line of said lot, which is the bound- chiefly in explanation of lines, maps, water ary between the land of respondents and levels, character of land and growth therethat of plaintiff, did not and does not de- on. A draft of the official plat ( original note the banks of any body of water, but size) is in the margin; on the following that, on the contrary, the said line was run | page is a copy of the combination map through the hills as the line of boundary (much reduced) showing the Bristol, Wilof the said lot; that the land of which your liams, Barnes, and Barbour surveys especialrespondents are in possession, and which ly referred to by Louisiana supreme court. they located under their mineral filing afore-At the trial the following stipulation was said, is high land, not subject to overflow made part of the record: apply to any other land west of the land in controversy. That Noel's possession was vested by act of purchase and continued by occupancy in the plaintiffs. "It is admitted by both parties that J. S. | said meander line, or of any of the land Noel was in possession, as owner, from the in controversy. This is not intended to date of his purchase in 1880 [1884], to the sale to the plaintiffs of the property known as the Wilson's Point place, his corporeal possession being limited on the east and north by the Bristol meander line, and said Noel never exercised any acts of corporeal possession, or was ever in occupancy of any land in section 4, east of or outside of the "It is further admitted that defendants on the 2d day of April, 1910, took actual possession of, and posted and filed notices of location under the placer mining laws |