! PER CURIAM. It is perfectly clear that the validity of the treaty was not “drawn in question.” The case, upon the facts, simply called for a construction of
section 4370, Rev. St. U. S., as to what was meant by the words “foreign waters.” No rights were directly claimed nnder the treaty. Uo question of the jurisdiction of either nation over the waters of the straits, on either side of the boundary line, was involved. The question of the construction of the treaty, if raised at all, was only incidental, as to a question of fact not denied by either party, to wit, the right of both nations to have free and open navigation over the waters of the straits. The statute of the United States was to be construed with reference to the existing state of facts under the treaty.
Uo direct question as to the construction of the treaty was raised. The treaty established a boundary line be- • tween the United States and Great Britain, and gave each nation the right of free navigation. These were facts proper to be considered, and were not in any manner disputed or drawn in question. The ■question — and the only question — was whether, upon such admitted facts, the waters north of the boundary liue established by the treaty were “foreign waters,” within the meaning of that term as used in the statute.
Section 4370. Decision on the question whether a motion to dismiss an appeal can be made after judgment of this court is reserved. The motion will be denied.