contention of the Steamboat Company that action by Congress was essential to authorize the Construction Company to do the work was without foundation.

The assignments of error here insisted upon as involving a Federal question are directed to the conclusions of the Court of Appeals last stated.

Clearly the judgment of the Court of Appeals which is under review rests upon two propositions: (1) The sufficiency of the authority from a Federal point of view under which the Phoenix Construction Company was carrying on its work in the bed of the river, and in the execution of which work it had anchored in the river its barges and other appliances incidental to the boring operations in which it was engaged. (2) The absence of all negligence on the part of the Construction Company resulting from the place where its appliances were anchored in the stream, or from any other cause, and the happening of the accident solely because of negligence on the part of the Steamboat Company. It is elementary that where the judgment of a state court which is under review by this court rests upon two or more grounds one or more of which are Federal and others of which are not Federal because resting solely upon state grounds independent of Federal rights and which state grounds are therefore completely adequate to sustain the judgment under consideration, no jurisdiction obtains to review. This doctrine it is insisted is here applicable for the following reason: Because conceding that the first proposition, that is, the rightfulness of the acts of the company in placing its appliances in the stream involves Federal questions which are reviewable, the second proposition upon which the court based its decision, that is, the happening of the accident solely as the result of the negligent conduct of the Steamboat Company, is an independent state ground broad enough to sustain the judgment without the necessity of considering the Federal question involved in the first proposition.

But the mistake lies in the contention that the finding that there was no negligence on the part of the Construction Company and that the negligence of the Steamboat Company was the sole cause of the damage suffered involved purely questions of state cognizance involving no Federal considerations whatever. We say this is the error because the determination of the issue of negligence upon the hypothesis that there was no Federal authority given to place the obstructions in the river necessarily involves a consideration of the nature of the obstructions and the ascertainment of whether in and of themselves they so interfered with or impeded the right to navigate the river, that is, to carry on interstate commerce by using the river, as to cause the mere presence of the obstructions to constitute negligence per se, that is, to render the conclusion necessary that their mere presence was the efficient and proximate cause of the accident complained of. Because the elements involved in the decision of this Federal question are intermingled with the elements necessary to be considered to determine whether there was negligence irrespective of the Federal right affords no reason for not considering and disposing of the issue which the case presents from the Federal aspect, or to treat it as non-existing. It is indeed true that the fact of negligence in and of itself abstractly considered may be a state question concerning which we would accept, and indeed it may be conceded would be bound by the conclusion of the state court. But when negligence involves and concerns a subject of Federal jurisdiction which it is our duty to decide, to the extent necessary to enable us to discharge that duty, we must consider and review the subject independent of the action of the state court. Southern Pacific Co. v. Schuyler, 227 U. S. 601, 612.

The motion to dismiss being thus adversely disposed of, it remains to consider the motion to affirm, which we think should be granted because of the entire want of

foundation, that is in substance the frivolousness, of the proposition upon which the contention as to jurisdiction to review must rest, and we have reached this conclusion for the following reasons: (a) because under the circumstances disclosed by the record we are of the opinion that it is manifest that whether the ingredients of negligence be considered from the Federal point of view or from the point of view of the general law it clearly results that the injury which the Construction Company suffered was purely and exclusively, as held by all the courts below, the result of the negligence of the Steamboat Company unaffected in a legal sense by the act of the Construction Company in placing its works in the stream at the places and under the circumstances shown. (b) Because reaching this conclusion we are of the opinion that the question of the sufficiency or insufficiency of the Federal authority by which the appliances of the Construction Company were placed in the river becomes wholly negligible and need not be considered, because even assuming the want of authority, such absence of authority conferred upon the Steamboat Company no right to negligently injure the property of the Construction Company. In other words we are of the opinion that conceding that the appliances and boats of the Construction Company were in the river at the points stated without authority, that fact did not endow the Steamboat Company with a license to become a wrongdoer free from responsibility, and did not exempt it therefore from liability for the consequences of a wrong inflicted solely by its own negligence not contributed to in any way by the Construction Company.

Affirmed.

DENVER AND RIO GRANDE RAILROAD COMPANY v. ARIZONA AND COLORADO RAILROAD COMPANY OF NEW MEXICO.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.

No. 188. Argued April 22, 1914.-Decided May 11, 1914.

This court is slow to disturb the decision of the Supreme Court of a Territory in regard to matters of local practice and the construction of state statutes. Nadal v. May, ante, p. 447.

While the record of proceedings of a board of directors, when made, is the best evidence, if it is found that no record was made, the admission of secondary evidence is not reversible error. Bank of the United States v. Dandridge, 12 Wheat. 64.

This court sees no reason for reversing the Supreme Court of the Territory of New Mexico in holding that a railroad company was entitled under §§ 3850 and 3874, Compiled Laws, to protection as soon as its final location was completed.

Under the circumstances of this case, the plaintiff railroad company was not guilty of laches in the location and protection of its right of way.

A defendant railroad company acquires no new rights by going ahead with location and construction after a suit has been commenced by another company claiming a prior location.

16 New Mex. 281, affirmed.

THE facts, which involve the conflicting claims of two railroad companies to a right of way in New Mexico, are stated in the opinion.

Mr. E. N. Clark, with whom Mr. Joel F. Vaile and Mr. R. G. Lucas were on the brief, for appellant.

Mr. T. B. Catron, with whom Mr. B. W. Ritter was on the brief, for appellee.

Opinion of the Court.

233 U. S.

MR. JUSTICE HOLMES delivered the opinion of the

court.

This is a bill brought by the appellee, a corporation of New Mexico, to restrain the appellant from entering upon and interfering in various ways with its right of way. After a trial the plaintiff (appellee) got a decree, conditioned, as to the portions of the line then occupied by the defendant in the actual operation of its railway, upon the plaintiff's constructing at least twenty-one miles of railroad, &c., and limited as a whole to five years from the date of the decree. This was affirmed by the Supreme Court of the Territory. 16 New Mex. 281. See 13 New Mex. 345. There are fifty-eight assignments of error, but the propositions argued fall into narrower compass. They are, that the plaintiff never adopted the line it claims; that there was no appropriation of the land until the plaintiff's location map was filed, after the beginning of this suit; that the plaintiff has lost whatever rights it had by laches and inability to construct its line; that there is no irreparable injury or other ground for equitable relief; and that the plaintiff had adequate remedies under the condemnation statutes and by ejectment. So far as they need discussion we will take these up in turn.

It is found that the plaintiff adopted the line in question; but it is argued that this finding is shown to be wrong as matter of law by reason of specific facts set forth in findings of the Supreme Court made, after the delivery of its opinion, in addition to those adopted from the court below. These are that certain small portions of the line between the northern boundary of the State and the town of Farmington are not covered by any order of adoption on the part of the directors shown by the records, and that the finding that those portions were adopted is based on the oral testimony of the plaintiff's chief engineer. (We do not stop to notice a slight contra