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by the steamers of the party of the first part." By article 4 these trustees are required to hold all the stock of the transportation company which they now have or may acquire, and all other property or rights which they may acquire under this agreement, to secure the repayment of the sums advanced by the Ogdensburg Company and by the parties of the third part, with interest thereon at 10 per cent. per annum. Article 5 makes a further provision for payment, out of this reservation from the gross receipts of the semi-annual interests of this advance by the Ogdensburg Company, and for a sinking fund to pay all in excess of the loan over $500,000, within two years, and the remainder within the nineteen years the contract had to run. It will be observed that this agreement was intended to expire at the same time that the lease of the Ogdensburg road expired. In all this it will be perceived that, while the mode of the repayment of the advance of $600,000 is carefully and repeatedly stated, and the security provided, it is nowhere hinted that the railroad companies of the third part are to be liable for it if these sources of payment fail. Indeed, the third article provides for security for advances which they may make in the same terms that it provides for the party of the fourth part, which is the Ogdensburg Company; and the language we have cited from article second, that each of the parties of the third part is liable only on this account for its proportionate reservation from the proceeds of traffic derived from the Ogdensburg road, leaves little room for further doubt that these resources were alone bound for the repayment of this advance.

The learned counsel for appellant makes a forcible argument against this view, based on the assumption that the Ogdensburg company had no interest in the traffic of the roads embraced in this agreement, because, its road being leased for a period coincident with that of this contract, the lessees received all its benefits and the company none. It must be confessed that if the Ogdensburg company had no other interest in the transaction than to secure the repayment of a loan of money and the interest on it, as if made by any other capitalist, the suggestion would be entitled to much weight; but in this assumption counsel is in error. The preamble recites, as one of the main inducements to making the agreement, that "by reason of financial embarrassments the transportation company will be unable to continue its business, and its steamers will be withdrawn; and whereas, parties of the third part and the party of the fourth part (the Ogdensburg Company) believe it to be for their interest and the public interest to advance," etc. The interest of the Ogdensburg company is here clearly stated as the cause of its advance of the money, though at the time the agreement was executed its road had already been leased a year, and the fact of the lease is recited in the agreement. Though this lease was for a fixed annual rent, the lessees were the trustees of two other railroad companies which were insolvent, and these trustees could only rely on the profits or receipts arising from this road to enable them to pay the rent. Indeed, so well founded was the apprehension of failure of rent arising from this fact, that in a few weeks after the withdrawal of the boats of the Northern Transportation Company the lease was rescinded, the road restored to the company, and the trustees of the two Vermont railroad companies released from any further liability on the contract we are now trying to construe. It is reasonably certain that the Ogdensburg Railroad Corporation had a deep interest in the success of the enterprise inaugurated by this contract, and probably a larger interest than any other party to the agreement, and clearly saw that it must make this advance, the only thing it did in the matter, at the risk of the success of the adventure, with such security for obtaining a return out of the proceeds of it as the contract gave. A stipulation of the parties was made on submitting the case to the court below, that, if that court held that no liability under the contract attached beyond that for a proportion of the gross receipts, there were no such receipts in defendant's hands, and the bill should be dismissed without requiring an accounting.

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The circuit court construed the contract as we do, and its decree dismissing the bill is therefore affirmed.

BLATCHFORD, J., took no part in the decision of this case.

(112 U. S. 306)

EAST TENNESSEE, V. & G. R. Co. v. SOUTHERN TEL. Co.
(November 24, 1884.)

1. APPEAL TO SUPREME COURT-FIVE-THOUSAND-DOLLAR LIMIT-MEASURE OF VALUE IN CONDEMNATION CASES.

The value of the matter in litigation in a dispute over the assessment of the jury of condemnation is the difference between such assessment and the value of the entire property, nothing to the contrary effect appearing in the record, and if such difference amounts to over $5,000 the controversy may come within the law giving the supreme court appellate jurisdiction.

2. SAME-REMOVAL OF CAUSE - UNITED STATES COURT SUCCEEDS ONLY TO POWERS OF STATE COURT.

The courts of the United States, on removal of a proceeding from a state court, are clothed with no greater powers in the premises than the courts of the state would have possessed had their jurisdiction been preserved. It follows that, as an appeal from a probate court of a state to the state circuit court or supreme court would not have operated to prevent a telegraph company from taking possession of certain property appropriated, and erecting its wires pending the appeal, the supersedeas, in a writ of error from the supreme court of the United States to a United States circuit court, should be limited in the same way.

In Error to the Circuit Court of the United States for the Middle District of Alabama. On motion (1) to dismiss; or, if that is overruled, (2) to modify supersedeas.

W. A. Gunter and H. C. Semple, for motion. Gaylord B. Clark, in opposition.

* WAITE, C. J. Sections 1930, 1931, 1932, of the Code of Alabama, give telegraph companies incorporated by other states a "right of way over the lands, franchises, and easements of other persons and corporations, and the right to erect poles and to establish offices, upon making just compensation, as now provided by law." Sections 3580 to 3600, inclusive, prescribe the mode in which such a company may appropriate private property within the state for its uses. Application must be made therefor by petition to the probate court or to the circuit court of the proper county, both of which courts are invested with jurisdiction for that purpose. The proceedings in the court after the filing of the petition are to be in rem, and must "conform as nearly as may be, except as herein otherwise provided, to the proceedings in rem in the admiralty courts, and be conducted according to the rules of such courts so far as practicable." Section 3581. Provision is then made for notice of the filing of the petition to the owner of the property (section 3583) and for the impaneling of a jury, "who, under the direction of the judge, shall well inquire, and true assessment make, of the damages and compensation which the owner * * * shall be entitled to have for the appropriation, **; and the assessment of compensation for any right of way shall be made irrespective of any benefit from any improvement proposed by the petitioner." Section 3586. "The owner * * may intervene in the cause for his interest therein, and evidence may be offered on either side; but no delay in the assessment to be made by the jury shall be caused by any controversy or evidence in respect to the title or ownership of the land, or of any part thereof." Section 3587. "The verdict * shall be immediately entered in proper form upon the minutes of the court, to be kept for such causes, and the amount thereof for each parcel shall constitute the compensation to be paid therefor, as hereinafter directed, before the appropriation thereof shall be made by the petitioner.' Section 3589. It is specially made the duty of the

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court to speed the cause. Section 3590. "An appeal to correct errors of law only may be had, if applied for within three months after the assessment, to either the circuit court of the same county or the supreme court; * * * but no appeal shall, during the pendency of it, prevent or hinder the petitioner from occupying the land involved therein, and proceeding to work thereon; but the petitioner, before doing so, shall pay into the court, for the person or persons entitled thereto, the amount of damages and compensation by the jury therefor assessed." Section 3593. The amount assessed may be paid to the person entitled thereto, or to the clerk of the court. Section 3594.

The Southern Telegraph Company, a New York corporation, being desirous of erecting a line of telegraph from Montgomery, Alabama, by way of Selma to Meridian, in the state of Mississippi, filed in the probate court of Montgomery county, Alabama, an application for the proper proceedings under the Code to enable it to acquire the right of way for that purpose along a line of railroad in Alabama operated by the East Tennessee, Virginia & Georgia Railroad Company from Selma to the Mississippi state line. Upon this application being made the necessary notices were served on the railroad company to appear on the tenth of April, 1884, and a jury was summoned for an inquiry into the amount of compensation to be paid the company for the appropriation sought. On the day named the railroad company intervened for its interest, and showed cause against the appropriation, and averred in its intervention that the value of the property to be appropriated was $12,000, and that this was the proper measure of the compensation and damages it was entitled to if the prayer of the petition should be allowed. On the same day the railroad company filed in the probate court a petition for the removal of the cause to the circuit court of the United States for the Middle district of Alabama, on the ground that the value of the matter in dispute exceeded the sum of $500, and the telegraph company was a citizen of New York, and the railroad company a citizen of Tennessee. Under this petition a removal was effected, and a jury impaneled in the circuit court of the United States "to inquire, and true assessment make, of the damages and compensation" the railroad company was entitled to have for the appropriation. The compensation was assessed by the jury at $500, and this amount, as well as the costs, was paid to the clerk of the court. Thereupon a judgment was entered that the telegraph company have and enjoy "the rights, ways, and easements claimed in the petition." From that judgment this writ of error was brought. The telegraph company now moves (1) to dismiss the writ, because the value of the matter in dispute does not exceed $5,000, and, if that motion is not granted, then (2) that the supersedeas herein may be modified so as to allow it to occupy the right of way involved in the proceedings, and to work thereon pending this writ of error.

The value of the matter in dispute in this court is the difference between the amount of compensation claimed by the railroad company on its intervention and the amount assessed by the jury. Hilton v. Dickinson, 108 U. S. 165; S. C. 2 SUP. CT. REP. 424. There is nothing in the record to show that the alleged value of the property is not the true measure of the compensation to be assessed. As this amount is $12,000, and the jury allowed only $500, it follows that the value of the matter in dispute is sufficient to give us jurisdiction. This is a proceeding under the statute of Alabama to ascertain the amount of compensation to be paid the railroad company for the appropriation of its property to the uses of the telegraph company. That is the single question to be settled. The remedy is statutory only, and every court which takes jurisdiction for its enforcement is limited in its powers by the statute under which alone it can act. It must be assumed for all the purposes of the proceeding that the telegraph company has the right to make the appropriation, and that, as soon as just compensation is made, it may enter

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on the property and put up and work its lines. It is a proper exercise of leg islative power to provide a way in which the amount of compensation shall be ascertained where the parties are themselves unable to agree. In Alabama, this is to be done by a jury impaneled in a probate court or in a circuit court. The legislature might have made the action in these courts final, and not subject to review on appeal or writ of error. If that had been done, the assessment of the jury, when recorded in the proper court, would settle finally the amount of compensation to be paid for the appropriation, unless the assessment should be set aside for fraud, or other sufficient cause, in some appropriate independent proceeding instituted for that purpose. But it has been provided that an appeal may be taken "to correct errors of law only," the effect of which shall not be, however, to prevent the appropriating company from taking immediate possession and proceeding with its works on payment into court of the sum allowed by the jury.

The courts of the United States, on removal of the proceeding from the probate court, were clothed with no greater power in the premises than the courts of the state would have possessed if their jurisdiction had been preserved. It follows that, as an appeal from the probate court to the state circuit court, or to the supreme court, would not have operated to prevent the telegraph company from taking possession of the property appropriated, and erecting its wires pending the appeal, the supersedeas on a writ of error from this court to the circuit court of the United States should be limited in the same way. This provision of the statute is by no means an unusual one, and was intended to prevent delays in the progress of a public work while the parties were litigating in the higher courts as to the correctness of a preliminary assessment of compensation to be paid an owner of property taken for the public use according to the forms of law.

The motion to dismiss because the value of the matter in dispute does not exceed $5,000 is denied; but it is ordered that the supersedeas upon the writ of error from this court shall not, during the pendency of the writ, prevent or hinder the telegraph company from occupying the premises appropriated for its use, and proceeding to erect and operate its line of telegraph thereon, after it has paid into the circuit court, for the person or corporation entitled thereto, the amount of damages and compensation assessed by the jury impaneled in the circuit court.

(112 U. S. 369)

MACKALL, Jr., v. RICHARDS and others.

(November 24, 1884.)

PRACTICE-MANDATE OF SUPREME COURT-DECREE OF LOWER COUrt-Second APPEAL When a mandate of this court, made after hearing and deciding an appeal in equity, directed such further proceedings to be had in the court below as would be consistent with right and justice, and that court thereafter made a decree which prejudiced the substantial rights of a party to the suit in respect of matters not concluded by the mandate or by the original decree, its action touching such matters is subject to review, upon a second appeal.

Appeal from the Supreme Court of the District of Columbia.

W. Willoughby, for appellant. W. B. Webb and Enoch T'otten, for appel

lees.

HARLAN, J. The present suit involves the title to that part of square 223, in the city of Washington, designated as lot 7, at the south-west corner of New York avenue and Fourteenth street. Its building line on the avenue is about 152 feet and 9 inches in length, and on Fourteenth street a little less; while the south line, which is at right angles with Fourteenth street, is about 100 feet, and the west line, which is at right angles with the avenue, is about 97 feet 5 inches, in length. In June or July, 1864, the lot was subdivided by Brooke Mackall, Jr., under whose control it then was, into five

smaller lots, each fronting on New York avenue. This subdivision was not recorded in any public office, but a rough plat of it, exhibited in the record, appears upon the books of Mr. Forsythe, a surveyor and civil engineer, who made it at the instance of Mackall. In the same year, shortly after this subdivision, Mackall commenced the erection of a building at the south-west corner of the avenue and Fourteenth street, which is now known as the "Palace Market." That building, he testifies, was "to cover two of the sub-lots on New York avenue." In 1867, Plant and Emory, having furnished materials and performed labor on the building, commenced suits at law in the supreme court of this district to enforce liens for the amount of their claims, and each obtained judgment therefor against Mackall. The part of lot 7 upon which Plant asserted a lien is thus described in his declaration: "Beginning for the same at the north-east corner of the said square; running thence south 44 feet; thence west to the west line of the said lot; thence, in a northerly direction with the west line thereof, to the north line of the said lot; and thence, in a north-easterly direction with the said north line, to the place of beginning." The description in Emory's suit is this: "Part of lot 7, in square No. 223, beginning for the same at the north-east corner of said lot, and running thence south 44 feet; thence west to the west line of said lot; thence, with a line at right angles to New York avenue, to the north line of said lot; and thence, in a north-easterly direction with the said north line, to the place of beginning." Subsequently, A. & T. A. Richards obtained judgment in the same court against Mackall for $897.42, with interest and costs, execution upon which was levied on the same property on which Plant and Emory claimed to have liens. Under executions in favor of these several creditors the property was sold by the marshal. Alfred Richards became the purchaser at $2,500, and received a conveyance. The proceeds of the sale were sufficient to discharge in full the claims of Plant and Emory, and $646.89 of the judgment obtained by A. & T. A. Richards.

This suit was brought in 1871 by A. & T. A. Richards, a part of whose judgment remained unpaid, and other judgment creditors of Mackall, for the purpose of subjecting to the claims of themselves and other creditors who might become parties and share the expenses of the litigation, such part of lot 7 as remained “after taking or carving out therefrom the aforesaid piece or part thereof so as aforesaid taken, sold, and conveyed by the marshal of the District of Columbia to Alfred Richards," etc. The bill sets forth that the title to the lot is really in Mackall, but that, for the purpose of hindering and defrauding his creditors, he withholds all evidence of it from the public records of the district. The prayer is that he be required to discover and place on record all conveyances, or other evidences of his title, and that the remainder of lot 7, not sold by the marshal to Richards, be sold, and the proceeds applied, first, to the discharge of existing incumbrances, and then to the judgments of complainants. Such proceedings were had that, by final decree in special term, on the first day of May, 1873, it was adjudged that the title "to all of lot numbered 7, in square numbered 223, in the city of Washington, not heretofore sold by the marshal of the District of Columbia to the complainant Alfred Richards, is vested in the defendant Brooke Mackall, Jr., and that the same be sold," etc. Trustees were designated by whom the sale should be conducted. That decree was affirmed in general term. Upon appeal to this court, the decree in general term was itself affirmed, without modification, and the cause remanded for such proceedings as would be consistent with right and justice. In this court, the only dispute was as to the sufficiency of the evidence to show title in Mackall, and no question was made as to the indefiniteness of the description of the interest or property decreed to be sold, or as to the validity of the marshal's sale. Subsequently, the trustees named in the original decree executed the order of sale and made report of their acts; but, upon exceptions filed, the sale was, on July 24, 1877, set.

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