Opinion of the Court.

on the check, that he has affirmed the contract after he knew all the facts upon which he now founds his allegation of fraud; that he has waived the fraud and all benefit that he might otherwise have urged by reason of it. A waiver of all right to question the validity of a contract may be founded upon the claiming and acceptance of a benefit under it after full knowledge of all the facts. 2 Pom. Eq. Juris. 2d ed. sec. 897, and cases cited in note 1. From all this we think no other conclusion is accurate than to say the decision of this court was based upon the merits of the case within the meaning of that expression when used to distinguish a decision of the court upon the merits from a decision based upon a lack of jurisdiction or defect of parties or anything of that nature. Here there was no lack of jurisdiction, the parties were before the court, and full power to grant relief entirely commensurate with the plaintiff's rights existed in the court. It is therefore incorrect to say that by the dismissal of the complainant's bill he has simply been remitted to his less effective remedy at law. This is to ignore the weight and effect of the opinion upon the matters just discussed and to open for another contention a subject which we think the decree in the equity case has closed for all time. It cannot be that after the determination of an investigation such as has been had in the equity case, and the entry of a decree thereon dismissing the bill, the matter can again be opened for contest in this action at law.

For these reasons, we think the judgment of the Court of Ap peals of the District of Columbia should be reversed and the case remanded to that court with instructions to reinstate the judgment of the Supreme Court of the District in favor of the plaintiff, and it is so ordered.

MR. JUSTICE BREWER did not hear the argument and took no part in the decision of this case.

Statement of the Case.

WERLING v. INGERSOLL.

ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.

No. 168. Argued and submitted March 6, 1901.-Decided April 15, 1901.

When Congress, under the act of March 2, 1827, granted to the State of Illinois alternate sections of land throughout the whole length of the public domain, in aid of the construction of a canal to connect the waters of the Illinois River with those of Lake Michigan, it also granted by implication the right of way through reserved sections; but this implication would not extend to ninety feet on each side.

The State of Illinois never took title to a strip of land ninety feet wide on each side of the route of that canal through the public lands, so far as related to the sections reserved to the United States by the act of March 2, 1827.

The State, in constructing the canal, proceeded under that act, filed its map thereunder, and constructed the canal with reference thereto.

THE plaintiffs in error have brought this case here to review the final judgment of the Supreme Court of the State of Illinois affirming the judgment of the circuit court of La Salle County in favor of the defendants in error (plaintiffs below) in an action of trespass involving the title to lands in that county on the south side of the Illinois and Michigan Canal. The action was brought for the purpose of testing the title and was tried by the court upon an agreed statement of facts, a jury being waived. It appears from this statement that the plaintiffs in error are the agents of the State of Illinois and acted as such in taking down and removing the fence hereinafter spoken of. The Illinois and Michigan Canal is owned by the State of Illinois and runs in a direction northeast and southwest through section 10, township 33 north, range 3 east, in La Salle County, Illinois. The lands in question are in this section, which was one of the sections of land reserved to the United States under the act of Congress approved March 2, 1827, hereinafter mentioned.

The plaintiffs in error claim that the State of Illinois owns a strip of land through that section on the south side of the canal,

Statement of the Case.

ninety feet in width, contiguous to such south side. The defendants in error claim that the land which is owned by the State south of the canal is bounded on the south by a line seventeen instead of ninety feet south of the canal line; or in other words, they claim that the north line of their land runs up to within seventeen feet of the south side of the canal. The ownership of the land between these points from seventeen to ninety feet south of the canal is disputed, the plaintiffs in error claiming it for the State and the defendants in error claiming it for Mrs. Ingersoll, one of the defendants in error, who has had possession of the land for more than twenty years prior to November, 1897, and had prior to that time erected a fence on the line she claimed as her north line. This seventeen feet strip it world seem has been occupied by the tow path.

In order to test the question of title the plaintiffs in error, acting for the State, removed this fence, and thereupon the defendants in error sued them in trespass, claiming the fence was on their line and was their property. The question depends upon the construction of two acts of Congress in connection with the action of the state authorities in relation thereto. They are (1) the act of March 30, 1822, chapter 14; and (2) the act of March 2, 1827, chapter 51. They are, so far as is material, set forth in the margin.1

AN ACT to authorize the State of Illinois to open a canal through the public lands, to connect the Illinois River with Lake Michigan.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the State of Illinois be, and is hereby, authorized to survey and mark, through the public lauds of the United States, the route of the canal connecting the Illinois River with the southern bend of Lake Michigan; and ninety feet of land on each side of said canal shall be forever reserved from any sale to be made by the United States, except in the cases hereinafter provided for, and the use thereof forever shall be, and the same is hereby, vested in the said State for a canal, and for no other purpose whatever; on condition, however, that if the said State does not survey and direct by law said canal to be opened, and return a complete map thereof to the Treasury Department, within three years from and after the passing of this act; or if the said canal be not completed, suitable for navigation, within twelve years thereafter; or if said ground shall ever cease to be occupied by, and used for, a canal, suitable for navi

Statement of the Case.

The plaintiffs in error claim that the title to the strip of land ninety feet wide through section 10 passed to the State by virtue of the act of 1822, while the defendants in error claim that the act of 1827 takes the place of the act of 1822, as to the grant of lands, and that under the act of 1827 every alternate sectio". of the land along the line of the canal was reserved to the United States, and it is agreed that section 10 was among the sections so reserved.

gation, the reservation and grant hereby made shall be void and of none effect.

SEC. 2. And be it further enacted, That every section of land through which said canal route may pass, shall be, and the same is hereby, reserved from future sale, until hereafter specially directed by law; and the said State is hereby authorized and permitted, without waste, to use any materials on the public lands adjacent to said canal, that may be necessary for its construction.

Act of March 2, 1827. Chap. LI, 4 Stat. 234.

AN ACT to grant a quantity of land to the State of Illinois, for the purpose of aiding in opening a canal to connect the waters of the Illinois River with those of Lake Michigan.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there be, and hereby is, granted to the State of Illinois, for the purpose of aiding the said State in opening a canal to unite the waters of the Illinois River with those of Lake Michigan, a quantity of land equal to one-half of five sections in width, on each side of said canal, and reserving each alternate section to the United States, to be selected by the Commissioner of the Land Office, under the direction of the President of the United States, from one end of said canal to the other; and the said lands shall be subject to the disposal of the legislature of the said State, for the purpose aforesaid, and no other...

SEC. 2. And be it further enacted, That, so soon as the route of the said canal shall be located and agreed on by the said State, it shall be the duty of the Governor thereof, or such other person or persons as may have been, or shall hereafter be, authorized to superintend the construction of said canal, to examine and ascertain the particular sections to which the said State will be entitled, under the provisions of this act, and report the same to the Secretary of the Treasury of the United States.

SEC. 3. And be it further enacted, That the said State under the authority of the legislature thereof, after the selection shall have been so made, shall have power to sell and convey the whole, or any part of the said land, and to give a title in fee simple therefor, to whomsoever shall purchase the whole or any part thereof.

Statement of the Case.

After the passage of the act of Congress of 1822 the General Assembly of the State of Illinois on February 14, 1823, passed an act in which provision was made for the appointment of a board of commissioners to consider, devise and adopt such measures as might be requisite to effect a connection by a canal and locks between the navigable waters of Illinois River and Lake Michigan. It was made the duty of these commissioners to cause that part of the territory of the State which may lie open or contiguous to the probable courses and ranges of the canal to be explored and examined for the purpose of fixing and determining the most proper and eligible route for the same, and to cause all necessary surveys, etc., to be made, and to make calculations and estimates of the cost, and to make a plain and comprehensive report of all their proceedings under the act to the General Assembly of the State at the commencement of the next session.

On January 18, 1825, the General Assembly of the State amended a prior act, and appropriated about two thousand dollars for the payment of the actual expenditures made and liabilities incurred by the canal commissioners appointed under the act of 1823. On January 17, 1825, the General Assembly incorporated the Illinois and Michigan Canal Company, and provided that the officers should obtain subscriptions to the stock, which should amount to a million dollars, and in a convenient time thereafter, and after ten per centum of the capital stock should have been paid in, the commissioners should proceed to construct a canal to connect the waters of the Illinois River and Lake Michigan, and the corporation was directed to proceed as rapidly to the completion of that object as might be deemed practicable and expedient, having in view the ultimate permanency of the work and the facility and safety of the communications. The size of the canal which the State had in contemplation is shown by reference to the fifth section of the act, wherein it is provided that the canal shall be of a width of forty feet at the summit, twenty-eight at the bottom, and of sufficient depth to contain water at least four feet deep. There is nothing in the record to show that these dimensions