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 com. pany 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 cir cuit 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 l'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

This subdivision was not

smaller lots, each fronting on New York avenue. 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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aside, the order providing that before sale can be made "the amount to be sold must be definitely ascertained by some proper legal procedure." The sale was set aside partly because it appeared upon the hearing of the exceptions that the trustees announced at the biddings that they did not know, and did not undertake to state, what were the precise lines or boundaries of the ground to be sold, and would not undertake to do more than sell such part of lot 7 as was outside of that embraced by the marshal's deed to Alfred Richards, leaving purchasers to find out as best they could the extent of their purchase. Bidders were informed that, "whether the south line of Richards' purchase runs south-westerly from the front or south-east corner of the building along the line of the fence * * * parallel to and 44 feet from New York avenue, or whether it runs due west along the south side of the building to its rear end, and from thence westerly to the rear end of the lot, is a legal question which the trustees do not undertake to determine."

By an order entered July 13, 1878, the cause was referred to a special auditor to report "the proper metes and bounds of that portion of lot No. 7, in square 223, which was sold by the marshal of the District of Columbia to Alfred Richards, and also that other portion of said lot not so sold, and which is directed by the decree in this case to be sold by the present trustees." He reported that, upon examining the testimony, the proceedings in the mechanics' lien suits, the returns upon the executions under which Richards had purchased, the advertisement of sale, and the marshal's deed of conveyance, he could not reach a conclusion as to how much ground was intended to be sold or conveyed to Richards. Exceptions by the complainants to this report were sustained, and the court, "proceeding to determine the said boundaries in accordance with the said order of July 24, 1877," directed the trustees to sell, in accordance with the terms and provisions thereof, all that portion of lot 7 lying south of a line drawn from a point on Fourteenth street 44 feet south of the north-east corner of said lot, and running thence parallel with New York avenue to the west line of lot 7. This order was made "without passing upon the validity of the said marshal's sale." A similar decree was passed in general term, accompanied by a recital that it should be construed "as not determining any question of title to any portion of said lot 7 lying north of said line.' The present appeal is from the latter decree. The action of the court below directing the sale of only so much of lot 7 as lies south of a line running from a point 44 feet south of its north-east corner parallel with New York avenue to the west line of the lot, leaving undetermined the question of the title to that part of the lot lying north of that parallel line, is subject to review, upon this second appeal, if, as appellant contends, the proceedings, subsequent to the decision here, are erroneous and prejudicial to his substantial rights in respect to matters not concluded by the original decree. His claim is that the natural and established front of lot 7 is on New York avenue, and that the sale of the piece south of the said parallel line, separately from the ground north of it, will materially, as well as needlessly, impair the value of both, especially the former. We are of opinion that this claim is, in all respects, well grounded; and that the appellant is entitled to a reversal, unless it appears from the record that the ground north of the said line running from Fourteenth street parallel with New York avenue-which ground was, in effect, withdrawn from the operation of the original decree-was embraced by the sale of the marshal to Richards. Unless sold heretofore by the marshal, it is covered by the original decree, which this court affirmed.

The question as to what part of lot 7 was not sold by the marshal to Richards is attended with difficulty and embarrassment. But it is one which the court below was bound under the issues to determine, in order that its decree of sale might be properly executed. Upon examination of the marshal's advertisement of the sale at which Richards purchased, and of the deed which the latter received, we find no such description of the property sold and con

veyed as will certainly embrace that part of lot 7 which lies west and westerly of the building erected at the corner of New York avenue and Fourteenth street, and north of the line described in the final order as commencing from a point on Fourteenth street 44 feet south of the north-east corner of said lot, and running thence parallel to the line of New York avenue to the west line of said lot. The advertisement of sale thus describes that part of lot 7 then proposed to be sold: "Beginning at the north-east corner of said square [223] and running thence south 44 feet; thence west to the west end of the lot; thence in a northerly direction with the west line thereof to the north line of said lot; thence with said north line to the place of beginning." The description in the marshal's deed to Richards is the same as that in the advertisement of sale, except that instead of the words, "thence west to the west end of the lot," the call in the deed is, "thence westerly to the west end of the lot." The line running south from the north-east corner of the lot along Fourteenth street is aptly described. But what is meant by the words "west to the west end of the lot" in the advertisement of sale? If by "west end of the lot" is meant its north-west corner where its west line meets New York avenue, and if by "west" is meant due west, then a line running due west from Fourteenth street will not strike the west end of the lot, but will intersect New York avenue some distance north-east of the north-west corner of the lot. Further: If "west to the west end of the lot" means "westerly to the west end of the lot," then there would be left outside of the ground upon which the building stands, and north of the line thus drawn, a narrow, irregular slip of ground, diminishing in width as the line runs westerly, and which it cannot be supposed it was within the contemplation of the marshal, or of any of the parties interested, to sell.

*But we do not suppose that by "west end of the lot" was meant its northwest corner, where its west line meets New York avenue; because the next call which appears in the levies, in the advertisement of sale, and in the marshal's deed-"thence in a northerly direction with the west line thereof to the north line of said lot”—would then be meaningless. We incline to think that by "west end of the lot" was meant "west line of the lot." Such, as we have seen, is the call in the mechanics' lien suits. This would make intelligible the succeeding call, "thence in a northerly direction with the west line thereof." But even this interpretation does not dissipate the confusion which arises from these inconsistent descriptions of the property; for, if the line starting from Fourteenth street is run due west, it will not strike any point in the west line of the lot. And if it be run westerly, which may mean north of west or south of west, to what point on the west line of the lot must it be run? The appellee contends that it should be run parallel with New York avenue. The answer to that suggestion is that the descriptions in the lien suits, in the levies, and in the marshal's advertisement and conveyance will be satisfied by running north or south of that parallel line to any one of numerous points on the west side or line of the lot. We are here met with the suggestion that the sale was made in discharge of certain mechanics' liens, and that the description of the property in the marshal's advertisement and deed should be held to include all the ground which could have been included under the laws in force in this district on the subject of such liens. That law provides, in respect of a building in the city of Washington or Georgetown, that "the ground on which the same is erected, and a space of ground equal to the front of the building and extending to the depth of the lot on which it is erected, shall also be bound by the said lien," subject to the condition that the land, at the time of the erection or repair of the building, is the property of the person contracting for such erection or repairs. Rev. St. Dist. Col. § 704, (11 St. 377.)

The argument implies that the statute gave a mechanic's lien*upon so much of the lot as would constitute a parallelogram bounded on the east by the line

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875