110 U.S. 57
3 S.Ct. 438
28 L.Ed. 69
SUSQUEHANNA BOOM CO. and others
WEST BRANCH BOOM CO.
January 7, 1884.
W. A. Wallace, for plaintiffs in error.
S. D. Ball, for defendant in error.
WAITE, C. J.
The Susquehanna Boom Company was incorporated by the general assembly of Pennsylvania on the twenty-sixth of March, 1846, and as early as 1849 erected under its charter a boom in the west branch of the Susquehanna river, at Williamsport, for the purpose of securing logs and other lumber floating in the river. Its charter did not purport to confer upon it any exclusive rights to the use of the river above the boom for bringing logs down. On the twenty-sixth of March, 1849, the West Branch Boom Company was incorporated to construct and maintain a boom on the south side of the west branch at Lock Haven, about 25 miles above Williamsport. Under its charter this company was not allowed to extend its boom more than half way across the river, but it could 'erect such piers, side branches, or sheer-booms as might be necessary. With this authority a sheer-boom was constructed in the north half of the stream. This suit was begun in a state court of Pennsylvania to enjoin the West Branch Company from maintaining § ch a sheer-boom, on the ground that under its charter no such structure could be placed by it on the north side of the branch. The supreme court of the state, on appeal, decided that it could put in and maintain such a sheer-boom, and adjudged accordingly. To reverse that judgment this writ of error was brought. The West Branch Company now moves to dismiss the writ because no federal question is involved. It is clear to our minds that we have no jurisdiction. The constitution protects state corporations in such contracts with the state as their charters imply. The Susquehanna Company, whose rights are involved, was given full authority to erect and maintain its boom at Williamsport. That undoubtedly implied the right to use the river as others used it for bringing logs to the boom. The West Branch Company was also authorized to construct its boom in the south half of the river at Lock Haven. Whether it could under its chapter put a sheer-boom in the north half, seems to have been a question with the Susquehanna Company, and this suit was brought to have that question settled. That is clearly all there was in the case up to the time of the final decision in the supreme court, whose judgment we are now called on to review. There is nowhere, either in the pleadings, the evidence, or the suggestions of counsel, prior to the judgment, so far as we have been able to discover, even an intimation that the Susquehanna Company claimed any contract right under its charter to exclude the West Branch Company from such use as that company was making of the north half of the stream. The only controversy, apparently, was about the right of the West Branch Company, under its charter, to such use at all. 'Certainly,' as was said in Brown v. Colorado, 106 U. S. 97, [S. C. 1 SUP. CT. REP. 175,] 'if the judgment of the courts of the states are to be reviewed here on such,' that is to say, federal, 'questions, it should only be when it appears unmistakably that the court either knew, or ought to have known, that such a question was involved in the decision to be made.' The fact that on a petition for rehearing it was suggested that if the charter of the West Branch Company was so construed as to give it the right to maintain its sheer-boom in the north half of the stream, that charter would impair the obligation of the contract of the state with the Susquehanna Company, is unimportant here, because our jurisdiction extends only to a review of the judgment as it stands in the record. We act on the case as made to the court below when the judgment was rendered, and cannot incorporate into the record any new matter which appears for the first time after the judgment on a petition for rehearing. Such a petition is no part of the record on which the judgment rests.
The motion to dismiss is granted.