# Opposition Brief — Southern R. Co. v. Postal Telegraph-Cable Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0597%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1901 - **Citation:** 179 U.S. 641 ## Text IN THE eme Court of the United States. OCTOBER TERM, 1899. No. 303. HE SOUTHERN RAILWAY COMPANY, PLAINTIFF IN Error, Vs. POSTAL TELEGRAVPH-CABLE COMPANY, DEFENDANT IN Error. yr to the United States Circuit Court of Appeals Fourth District. Appellant resisting Motion of Appellee to vacate he Supersedeas upon the Writ of Error from this Court.” STATEMENT OF CASE. ne 11, 1898, the Postal Telegraph-Cable Company, ealled the Telegraph Company, a corporation char- ler the laws of the State of New York, having accep- rovisions of the Act of Congress, approved July 24, itled : “Anact to aid in the construction of telegraph 2? and to secure to the government the use of the same tor 1, military and other purposes,” filed in the office of the of the Superior Court of Guilford county, North Caro- a petition making the Southern Railway Company, here- .r called the Railway Co., the sole defendant, in which on the Telegraph Company asked the condemnation, for poses as a telegraph company, of a continuous right of along, upon and over the lands (roadway) of the Railway from a point on the State line between the States of North lina and Virginia, where said railroad crosses the State thence south through the counties of Rockingham, Guil- Randolph, Davidson, Rowan, Cabarras, and Mecklenburg harlotte, and from the town of Greensboro, in the county uilford, to the city of Raleigh, passing through the coun- yf Guilford, Alamance, Orange, Durham and Wake, and n amended petition filed the same day, asked for a like emnation from Greensboro, North Carolina, to Winston, orsythe county, North Carolina—the whole distance being ly two hundred and fifty miles, and the larger part of the erty sought to be condemned being situated within the tern District of North Carolina. summons was issued requiring the Railway Co. to appear re the clerk of the Superior Court of Guilford county on 22nd day of June, 1898, and answer. » the 22nd of June, 1898, the Railway Co. entered a special .arance for that purpose, and filed a petition and bond, he removal of the proceedings to the Cireuit Court of the ted States for the Western District of North Carolina. n the same day, said petition and bond were presented to State Court and application made to it by counsel for the way Co, to enter an order removing the cause to the Cir- Court of the United States; but the State Court denied application to remove, and made an order requiring the way Co. to answer. Thereupon, the Railway Co. procured anscript of the record from the clerk of the State Court filed the same in the clerk’s office of the Cireuit Court of United States at Greensboro, N. C., on June 25th, 1898. Subsec take furt condemn cuit Cou order wa in the St The T. proceedil said Fed as an inj! or about 1898, the 1. Ref State Co 2. Hol force, un On th sented to to file th August last name ( Page 3 the pages On Au to dismis them, ass inclusive tiled im erroneou p. 30, an On Seq which it at Green: and com mons the as comm x. y.,. 3 it to June 22nd, 1898, the Telegraph Co. sought to action in the State Court in said proceedings to id upon a bill filed by the Railway Co. in the Cir- f the United States at Greensboro a restraining ranted prohibiting further prosecution of the cause Court. raph Co. moved the Federal Court to remand said to the State Court, and the Railway Co. moved | Court to continue the restraining order in force, tion. These motions were argued at Asheville on th day of July, 1898, and, on the 20th of July, urt filed its written opinion : ig to remand the proceedings to condemn, to the ¢ that the restraining order must be continued in he further order of the court. Sth day of August, 1898, the Telegraph Co. pre- e Federal Court another petition, and asked leave ime. The court continued this application until 1898, and required the Railway Co., by the date to plead. rences to proceedings, where not otherwise stated, are to ‘he printed record.) t 31, 1898, the Railway Co. filed its written motion aid petitions of the Telegraph Co., and each of ing sixteen grounds therefor. See pp. 96 to 102 The motion to dismiss was overruled as to petition Superior Court of Guilford county by order, p. 29, dated August 31,1898. See Bill of Exceptions, pinion, pp. 31-41. nber 15, 1898, the Circuit Court made an order by ered that 8. L. Trogdon, Esq., clerk of that court ro, North Carolina, do appoint three disinterested nt freeholders, resident in that district, and sum- before him: that said persons so elected shall act oners to assess the damages which the Southern — 4 Railway Company may sustain by reason of the erection of the telegraph poles and the stretching of the wires thereon of the Postal Telegraph Cable Company, as proposed in the petition of said company: that said commissioners shall take before said clerk the oath prescribed in section 1946 of the Code of North Carolina, and shall proceed in all respects as required in said Code in assessing such damages, estimating and assessing such compensation as may be just for said South- ern Railway Company by reason of the premises: that said commissioners shall hold their meetings in the court-house of the United States, in the city of Greensboro, over which meet- ings said clerk shall preside: that they take such testimony in respect to said damages to said Southern Railway Company us they may deem pertinent, not, however, extending their in- quiry as to the benefit to be derived by the Telegraph Co., or the value thereof, to it: that the first meeting of the commis- sioners, of which the said clerk shall give due notice to them and to the parties, shall be held ten days after notice of their appointment has been served on the parties to this cause: and that after hearing the evidence and reaching their conclusion, said commissioners shall reduce their award to writing, and sign and seal the same and file it with the clerk of said court at Greensboro. See pp. 42-43. This order was made upou application of counsel for the Telegraph Co., without notice to or knowledge of counsel for the Railway Co. Immediately upon hearing of the order, counsel for the Railway Co. brought the matter to the attention of the court, and an order was made on September 23, 1898, suspending the order of September 15, 1898, and required the Telegraph Co. to show cause on October 7, 1898, why the Rail- way Co. should not be permitted fo file its answer and have the order of September 15, 1898, vacated and annulled. See p. 47. On October 7, 1898, the parties plaintiff and defendant, by their attorneys, appeared before the court, and the Railway Co. tendered and asked leave to file its answer. The court, over the written objection of the Telegraph Co. (pp. 64-66), announced its purpose to allow the Railway Co. to file said answer, which = 0 will be found at pp. 48 to 64, and the Telegraph Co. demurred orally to said answer, but the order filing said answer and noting said demurrer was not made until October 24, 189%. See pp. 69-70, The paper headed * Demurrer to Defendant’s Answer,” pp. 64-66, was itself the answer tendered by the Telegraph Co. pursuant to the order of September 23, 1898, requiring the Telegraph Co. to show cause. It was not the demurrer. The heading is erroneous. The oral demurrer to the answer of the Railway Co. was argaed October 7, 1898, and the court took time to consider. On October 17, 1898, the court filed a written opinion sustaining this demurrer. See pp. 66-69. On October 24, 1898, the court made an order filing the an- awer of the Railway Co., noting the demurrer of the Telegraph Co., and sustaining said demurrer. The Railway Co. then asked leave to introduce testimony sustaining the averments of its answer, but the court in said order overruled this motion and refused to permit the Railway Co. to introduce testimony. The court also reinstated its order of September 15,1898. To wl of which ruling the Railway Co. excepted. See order, pp. 69-70. On October 24th, 1898, the court made also another order, stating in detail certain exceptions taken by the Railway Co. to certain of its rulings, which will be found at pp. 75-76. The same exceptions, together with others set out with greater particularity, will be found in the three bills of exceptions ot the Railway Co., to be found respectively at p. 30, p. 45, and p. 72, On October 24th, 1898, the Railway Co. asked for a writ of error and supersedeas to the order of October 24th, 1898, sus- taining said demurrer, refusing to allow the introduction of testimony, reinstating its order of September 15th, 1898, and otherwise ordering as therein set forth. The application for a writ of error and supersedeas, on the motion of the Telegraph Co., was continued until November 4th, 1898. See order, pp. 88-89, erroneously headed “ Order refusing Appeal.” On November 4th, 1898, a petition for an appeal, together with an 6 assignment of errors, was presented to the court, and will be found on pp. 78 to 86 inclusive. On November 9th, 1898, the court filed an opinion and made two orders, one of which: re- cites the facts last above stated, and the other refused the Rail- way Co. the writ of error prayed by it. See pp. 87, 88-90. On November 29, 1898, the Cireuit Court set aside the last mentioned order and allowed the writ of error and superse- deas as prayed in the assignment of errors theretofore filed, See pp. 95-96. IN THE CIRCUIT COURT OF APPEALS. On the 30th of March, 1899, the Circuit Court of Appeals filed an opinion holding that no appealable order had been made by the Cireuit Court and, on March 31st, 1899, made an order dismissing the writ of error for want of jurisdiction. The order allowing the present writ of error and superse- deas was made on May 4th, 1899, and the supersedeas bond, in the penalty of $5,000.00 with the Virginia Trust Company as security, was then taken and approved by Honorable Nathan Goff, Circuit Judge, who had, after full argument, allowed the writ of error from the Circuit Court to the Cir- cuit Court of Appeals to operate as a supersedeas—had pre- sided at the fuli and extended hearing in the latter court— had entered a subsequent order in the Circuit Court--who was cognizant of all subsequent action in the cause, and upon whose action, in making the order allowing a writ of error aud supersedeas, taking and approving the supersedeas bond, and signing a citation and writ of error, intended to operate as a supersedeas, the Chief Justice of this Honorable Court based his action, in signing the present writ of error to operate as a supersedeas and approving the supersedeas bond, already approved by Ifonorable Nathan Goff, Circuit Judge, and signing the existing citation herein. The three last men- tionetl papers were duly filed in the Clerk’s office of the Circuit Court of Appeals at Richmond, Virginia, on May 6th, 1899, together with copies of said writ of error and citation. A copy _ — 7 of Judge Goft’s said order of May 4th, 1899, and the original form of writ of error and citation signed by him are filed in the Clerk’s office of this court. IN THE SUPREME COURT OF THE UNITED STATES. The record from the Circuit Court of Appeals reached the Clerk’s oftice of this court Saturday, May 20th, 1899, and has not yet been printed, but the necessary fees were paid May 22, 1899, and the cause then docketed as No, 832, October Term, 1898. It now stands as No. 303, October Term, 1899, On May 19, 1899, counsel for the Postal Telegraph-Cable Company caused to be served upon counsel for the Southern Railway Company the following notice (caption being here omitted), viz : Motion by the Defendant in Error to Disiniss, Now comes the defendant in error, The Postal Telegraph Cable-Company, by J. R. McIntosh, Counsel, and moves the court to dismiss the writ of error in this cause, (1) because this court has no jurisdiction of the same; (2) if the motion is not sustained, then, that the supersedeas upon the writ of error from this court be modified, so that during the pendency of the writ, it will not prevent or hinder the defendant in error from occupying the premises appropriated for its use and proceeding to erect and operate its line of tele- graph thereon, pending said writ of error. : (Signed ) J.R. McINTOSH, Counsel for Motion. On May 22, 1899, counsel for the appellant appeared and tiled a printed brief respectfully submitting that the notice of said motion was illegal and unsufficient, and on the same day the appellee appeared by counsel before this Court, and—while submitting the above notice—withdrew its motion to dismiss the writ of error allowed appellant: but moved the court to racate the supersedeas iz This honorable Cont adjourned without action upon appel- lee’s motion. ARGUMENT. Under the rulings of this court in Bohannan v. Nebraska, 118 U. S., 231, and other like cases, that “ the court will not con- sider the merits of the question involved in a case on a motion to dismiss unaccompanied by a motion to affirm,”’—we cannot in resisting appellee’s motion to vacate the supersedeas awarded in this cause, discuss the merits of the controversy, /. ¢., the fundamental proposition of appellant that there is no law in existence under which a telegraph company may, in North Carolina, condemn a right of way for its purposes upon the strip of land constituting the roadway of a railroad: the con- tention of appellant that, by legislation subsequent to the adoption of the Code of North Corolina of 1883, the legislature of that State has repealed (as to telegraph condemnations) the statute under which appellee founds its application to condemn the property of appellant. These with many other vital ques- tions going to the merits of the controversy, presented in the assignment of errors, must await a hearing upon the merits. Appellee’s counsel will endeavor to avoid violation of the rule announced in Bohannan v. Nebraska, 118 U. 8., 231; but, in re- sisting appellee’s motion to vacate the above supersedeas, it will be necessary to analyze the orders of the Cireuit Court rendered September 15, 1898, and October 24, 1898, and show what they determine upon their face, in order to demonstrate appellant’s contention that the order of October 24, 1898, was a final order and that a supersedeas properly followed a writ of error thereto. The orders of September 15, 1898, and October 24, 1898, are as follows: Order of September 15, 1898. x “Tt is ordered that 8. L. Trogdon, Esq., clerk of this court at Greensboro, North Carolina, do appoint three disinterested and competent freeholders, resident in this district, and sum- mons them before him. That the said persons so selected shall act as commissioners to assess the damages which the Southern Railway Company may sustain by reason of the erection of 9 telegraph poles and the stretching of the wires thereon of Postal Telegraph-Cable Company, as proposed in the peti- of said Company to this court. That the said commis- ers shall take before the said clerk the oath prescribed in jon 1946 of the Code of North Carolina, and shall proceed Il respects as required in said Code in assessing such dam- s, estimating and assessing such compensation as may be for said Southern Railway Company by reason of the mises. The said commissioners shall bold their meetings he court-house of the United States, in the city of Greens- o, over which meetings said clerk shall preside, and they authorized and empowered to take such testimony in re- et to the said damages to the said Southern Railway Com- y as they may deem pertinent, not, however, extending ir inquiry as to the benefit to be derived by the Telegraph: _ or the value thereof, to it. The first meeting of the ecom- sioners, of which the said clerk shall give due notice to mand to the parties, shall be held ten days after notice of ir appointment has been served on the parties to this cause. ‘After hearing the evidence and reaching their conclusion, said commissioners shall reduce their award to writing, lsign and seal the same and file it with the said clerk of this it at Greensboro.”’ See pp. 42-45. Order of October 24, 1898. ‘This day came the defendant Railway Company and by ve of court filed its answer to the complainant’s written notice 1 motion, to which said answer the plaintiff Telegraph mpany demurred, and after argument of counsel, and the tter being duly considered by the Court, said demurrer is ‘eby sustained, and the defendant having asked leave to in- duce testimony sustaining the averments of its answer, which ve was refused by the court. ‘It is therefore ordered, that the former order made by this irt directing the clerk of this court, at Greensboro, North rolina, to appoint commissioners to assess the damages in above entitled cause, is hereby reinstated; and the clerk of 10 this court is directed to fix a day not earlier than ten days after the entry of this order, for the meeting of said commissioners, to all of which action of the court, except leave of the court to the defendant to file its answer, the defendant excepts.” See pp. 69-70, also pp. 73-76. What this Order of October 24, Settled. 1. It sustained the demurrer of the Telegraph Co. to the answer of the Railway Co. 2. Refused permission to the Railway Co. to introduce testimony sustaining the averments of its answer. 3. Reinstated the order of September 15, 1898, directing its clerk at Greensboro to appoint commissioners to assess damages. 4. Directed Clerk Trogdon to appoint a day for the meet- ing of said commissioners. Detailed Analysis of the Order of October 24. It is respectfully submitted that this order of October 24, 1898, was a final order. By it the court— 1. Determines that North Carolina statutes are in force, under which the property of the Telegraph Co. can be con- demned. 2. Proceeds in direct violation of these statutes, as con- strued by its own opinion in this cause. 3. Determines without proof the conditions precedent to condemnation under these statutes. 4. Refuses to hear proofs as required by section 1945 of the Code of North Carolina. 5. Determines, upon demurrer, that every defense set up in the answer of the Railway Co. is without merit, even though it were proved by conclusive evidence. 6. Determines that the Telegraph Co. may take possession and use the property of the Railway Co., without any further order of the court. 7. Determines that the entire condemnation may be made in one proceeding. 8. Prohibits testimony showing the value to the Telegraph 1) any for its purposes of the property sought to be con- ed. Yelegates to its clerk the power of selecting and appoint- sinterested freeholders to act 2s commissioners, and rize him to preside over them. Delegates to its clerk powers vested in the court and ourt only. n conceding that statutes are in force in North Carolina , authorizing the condemnation of a railroad for the uction of telegraph lines (which is carnestly denied) yet » 2007 of the Code of that state requires that “ such lines graph shall be so constructed and maintained as not to et or hinder the usual travel on such railroad.” Sode of North Carolina Secs. 2007 & 2009. . 2007. Telegraph lines, who may maintain. 1874-"5, » Se y telegraph company chartered or incorporated by this or ther state shal! have the right to construct, maintain and re lines of telegraph along any railroad or other public ‘ay in the State of North Carolina, bat such lines of tele- shall be so constructed and maintained as not to obstruct der the usual travel on such railroad or other highway. . 2009. Entitled to right of way upon just compensation. *d, ec. 203, 8. 4. h telegraph company shall be entitled to the right of way he lands, privileges and easements of other persons and rations, and the right to erect poles and establish offices, making just compensation therefor. tion 1945 of said Code is the only statute which has at me provided for the appointment of commissioners, and statute requires conditions precedent to such appointment : vides that all persons, whose estates or interests are to be ed, may answer and show cause against the condemnation : uires the court to hear the proofs and allegations of the 12 arties, in any and every event before appointing commissioners, The full text of Section 1945 is as follows : Code of North Carolina, Section 1945. * Allegations made against petition; Freeholders appointed to ap- raise estate, 1871-2, e. 138, 8. 15. 1945. * On presenting such petition to the Saperior Court, as foresaid, with proof of service of a copy thereof, and notice s aforesaid, all or any of the persons whose estates or interests re to be affected by the proceedings, may answer such petition nd show cause against granting the prayer of the same, and nay disprove any of the facts aileged in it. The court shall ear the proofs and allegations of the parties, and if no sufficient ause is shown against granting the prayer of the petition, it hall make an order for the appointment of three disinterested nd competent freeholders, who reside in the county where the remises are to be appraised, for the purposes of the company, nd shall fix the time and place for the first meeting of the ommissioners.”” In no event can a telegraphic right of way be condemned on railroad unless it be shown that the proposed telegraph line vill be so constructed “as not to obstruct or hinder the usual ravel on such railroad,” &e., s. 2007. The condemning cor- oration must file its petition. The railroad upon which the ight of way is sought to be condemned then files its answer. ‘he issue is thus made up. This section requires the court to ear the proofs, and if no sufficient cause be shown against he condemnation, to appoint commissioners, Observe, how- ver, that the court itself must hear the proofs upon which ssue is joined before the appointment of commissioners. The ourt itself must determine that the right to condemn crests. ‘he court itself must determine that the proposed telegraph ine will not obstruct ordinary travel nor hinder the usual travel nm such railroad. In order to know whether or not the line vill do this, the court must know the character and location of he line. These questions are, therefore, jurisdictional, Sec by the pp- 31 to ans before demn no sul comm 34-35 “ee V and t proof be in: disint prais: comn Th other railro of wa that i struct terfer line | woulk struc agray st of w exter! the 1 state and 13 1945 of the Code of North Carolina was construed renit Court in its opinion of September 9, 1898, record . The court there recognized the right of defendants ‘and to introduce proofs, and its daty to hear proofs termining whether the petitioner had the right to con- nd also recognized the fact that the court itself (where ent cause is shown against the right) must select such oners and fix the day for their first meeting. At pp. > court said : tract from Opinion of the Circuit Court. n, therefore, the petition is presented to the court, answers of defendants have been heard, with the 1 each side, if the cause shown against the petition icient, the court shall grant an order naming three sted freeholders to act as commissioners of ap- and shall fix the day for the first meeting of these sioners.”’ wer of the defendant raised issues squarely. It (amongst enses) denied, in varied form, that the right of way of the vas 100 feet wide: it declared in substance that this right ‘as in many places very much less than 100 feet broad ; as too narrow to make it physically possible to con- relegraph line thereupon in such manner as not to in- vith ordinary travel. It declared, in effect, that the nosed to be constructed by the Telegraph Company rossly imperil the running of trains and grossly ob- e ordinary use of the railroad. See record, p. 60, par- E. Extract from Answer of Railroad Co. Further answering, defendant denies ‘that the right of this defendant is ‘about 100 feet wide, and it about 50 feet from a line along the centre between ; of said main track;’ on the contrary, defendant 1at the strip of land along which its tracks are laid trains are run varies greatly in width at different 14 ints along its line, and that at sundry points along said e included in and covered by the condemnation proceed- ss of the plaintiff is much less than ioo feet in width, in- ed, is so narrow that to erect a telegraph line thereupon the manner set out in said petition would be impracti- ble, or, at least, would grossly imperil the safe operation defendant's railroad, and grossly obstruct or hinder the ual travel thereupon.’’ The plaintiff Telegraph Company demurred to this answer 1 the court sustained the demurrer. When the court sustained ; demurrer, it declared in substance that the answer was hout merit; that even though the Railway Company might ve all the averments of the answer, by legal and conclusive dence, yet the plaintiff would be entitled to the relief prayed; t the plaintiff had the right to condemn a right of way upon land of the defendant. n a word, the court determined that the Telegraph Co. s and had the lawful right to construct its lines upon ap- lant’s railroad, notwithstanding the distinct and definite nission of the Telegraph Co., by its demurrer to defend- ’S answer, that, as a matter of fact, the strip of land con- uting the roadway of the Railroad Co.—‘‘is so narrow. it to erect a telegraph line thereupon in the manner set - in said petition would be impracticable, or, at least, uld grossly imperil the safe operation of defendant's lroad, and grossly obstruct or hinder the usual travel reupon.”’ f course, after sustaining the demurrer to appellant's wer, the court acted logically in refusing to allow appellant introduce testimony sustaining the averments of its an- rr.’ When the court, upon demurrer, determined that re was no merit in any of the defenses set up in the answer, robably considered it idle to allow the introduction of testi- ny establishing facts which the Telegraph Company admitted e true, and which the court considered insufticient to deteat rights claimed by the Telegraph Company. But, in adopt- ing this \ lion raiser on compe debarred or quest day advi: minor qu until the the prece and shou did not s In eve its answe they con the right of the ri “exclusi 30 essent and obli amount « in case it poses, is But th Statutes | any com] tions set contemp! awarded Telegrap the right pensate ; struct or its safe ¢ answer st The pl: not only statutes | 15 v, the court closed and ended the case, upon ecery ques- the petition and answer—save and except the «mount von; and the Railroad Company was practically m further defending itself, upon any other ground The detendant, however, was advised, and is to- , that the time had not arrived for battle upon this ion of compensation, and would not legally arrive, irt should first permit it to introduce proofs upon t and jurisdictional questions raised in its answer, pass upon these proofs adversely, holding that they uin and establish these vital defenses. spect, legal and practical, the questions raised in re vital questions to the appellant. Not only do 1 and determine the existence or non-existence of the Telegraph Company to condemn the property vad, but upon their solution depends the railroad’s ‘possession and control of its own right of way, to the efficient discharge of its great public duties ions. Compared with these considerations, the noney compensation to be awarded the defendant, ‘operty shall be taken by the petitioner for its pur- subordinate importance. »pellant is further advised and submits, that the ‘orth Carolina do not contemplate or provide for sation whatever being awarded, under the condi- th in its sworn answer; that these statutes do not or intend that any sum of money, however great, | paid in damages, can authorize the petitioning ompany to construct and maintain its lines upon way of the defendant railroad, or properly com- railroad tierefor—if such construction will ob- ler the usual travel on such railroad, or imperil ‘ation, as it is clearly set forth in the defendant’s construction and maintenance will do. iff in error is yet further advised and submits that he above not the theory of said statutes, but that said » been so construed by the honorable Circuit Judge 16 trial court, by his said order of October 24, 1898, and id order is therefore erroneous and clearly final. finality of an order is uudoubtedly to be determined legal effect. If then, an order refuses to hear proof urisdictional conditions precedent set up in sworn an- nd, in spite of the defendant's distinct plea, backed up plaintiffs substantial admission, that said plaintiff is itled to the property claimed by him—indeed, that such is clearly excluded by the express proviso of the very upon which alone such claim is and can be based—if .in the face of all this, such an order authorizes, not. , the court, but a third person, to appoint commission- assess the value of the defendant's property, refusing n Opportunity to prove anything, save the amount of nsation to which he is entitled, and, upon payment of wount fixed by such commissioners, further authorizes itioning plaintiff to take and hold the property so val- would seem clear beyond dispute that such an order is every clement of finality. ortant side-light is thrown upon our position with re- » the character and finality of the order of October 24, nd it is brought out in clear relief, by the opinion of preme Court of the United States in the case of L. Tenn. Ga. R. R.v. So. Tel. Co., 112 U. 8., 306, ete., which 1p upon error to the United States Cireuit Court for the district of Alabama, and involved the construction of 1inent Domain Statute of that State. The court, upon 309-310, says: jis is a proceeding, under the statute of Alabama, to as- ‘the amount of compensation to be paid the railroad ay for the appropriation of its property to the use of the ph company. That is the single question to be settled. medy is statutory only, and every court which takes stion for its enforcement is limited in its powers by the under which it alone can act. It must be assumed, for purposes of the proceeding, that the telegraph company » right to make the appropriation, and that as svon as just compe put up and Commen the contra: “assumed right to mz be settled ’ railroad co; ant, at ‘the involving a the Court. H Its jurisd der appeale The esse court is to while saida ened by the Tt should appealing Fre ton. Indee ser is thor of October the avermer suppgrt by | its of the « ing; the de of any law the plaintiff the express lied and up establish by precedent, te set out in sa We are w 2 17 ition is made, it may enter on the property and rk its lines.” ould not make more clear the distinction—nay -between cases of this character, in which it is * * that the telegraph company has the the appropriation,” and “ the single question to “the amount of compensation to be paid the any ’—and the case at bar, in which the defend- ‘y threshold of the proceeding, raises questions rece the existence of the right and the jurisdiction of , THIS COURT JURISDICTION ? on is denied upon the sole ground that the or- ‘om is vot final or appealable, al basis of our application to this honorable found in the order entered October 24, 1898, ication also incidentally includes and is strength- ‘ors embodied in the other and earlier orders, imderstood, however, that the plaintiff in error is not an order appointing commissioners to fix compensa- vhen the character of its above-mentioned an- fhly comprehended—to which answer the order h sustained the demurrer of the plaintiff, and of which it refused to allow the defendant to ts—it will be seen that, not only were the mer- involved, but the entire basis of the proceed- dant’s answer not only denying the existence hovizing the condemnation of its property by also vouching for its protection and defense, viso of the statute upon which the plaintiff re- Which it proposed to proceed, and offering to oof, the absence of the indispensable condition 1e application and operation of said statute, as WOVISO. aware that, in ordinary condemnation suits, an 1s appealable order is not reached, indeed, cannot be entered’ until the amount of compensation is awarded by the commission- ers and confirmed by the court; and this, because there is really no other substantial question involved. But, in the case at bar, not only did the defendant below deny the existence of any statute under which the condem- nation of its property for the purposes of the plaintiff could be lawfully conducted and effectuated, but it also charged and offered to prove that its right of way was of such a character that the telegraph line of the plaintiff could not be so constructed and maintained as not to obstruct or hinder the usual travel’’ on its railroad; nay offered to prove much more than this, to-wit : that ‘‘ its right of way was so narrow that, to erect a telegraph line thereupon, in the manner set out in said petition, would be impracticable, or, at least, would grossly imperil the safe operation of defendant's rail- road’’—that is, would grossly imperil the lives of the citi- zens of the State and of the country at large, travelling upon defendant’s railroad trains ; and all this might happen with- out the entry of any further order by the court, which had turned the matter over to its clerk to appoint the commis- sioners and superintend their sessions ; the statute, section 1946 of the Code, authorizing the plaintiff company to take possession of the defendant's property and to construct, maintain and operate its line thereupon, upon * payment into court of the sum appraised by the commissioners,’ upon the filing of their report in the clerk's office. Just here we submit three questions, to-wit: (1) Is the issue thus raised and the defense thus inter- posed in the answer a substantial issue and a valid defense, or not? (2) Had the defendant, at the time he filed his answer, or will it ever have, the right and opportunity to raise this question and to interpose this defense ? (3) If so, when and where ? Could the defendant, though well aware of the existence of — 19 a state of facts which must eventually defeat and render nuga- tory the entire expensive and vexatious proceeding before com- missioners, yet remain silent and allow the court to appoint them and allow them to make their appraisal and report, (for surely such a question cannot be raised before them; neither their oath nor their duties, as defined by the order of Septem- ber 15, 1898, page 42, nor their capacities cover or include such a question nor fit them to pass upon it), and afterwards take the chances of inducing the court to go back and take up a question which manifestly, in the nature and logic of things, should have been raised and disposed of, before all these steps were taken and proceedings had, the defendant having been thoroughly aware from the first that they must come to naught? Nay, under such circumstances it is hardly reasonable to speak of “ the chances” of the court’s hearing the defendant, if he should attempt, after the coming in of the report, to raise this ob- viously antecedent and fundamental question. Upon the general principles which regulate judicial procedure, it is clear the court would not hear the defendant who had thus failed to speak at the proper time, unless this failure was in some proper way explained and condoned. Indeed, it the court will kindly glance at section 1946 of the Code of North Carolina of 1883, and then at the order of September 15, ’98, it will at once per- ceive that the chart of the commissioners’ duties and powers issuch that, neither upon the basis of the Code nor of the order, could it be logically possible to raise betore them this issue, as to the defeat of the right to condemn, by the proviso as to obstruction or hindrance to travel. In short, our view is that a condemnation proceeding, of the character of that under investigation, substantially em- braces two separate and successive proceedings —the first of which concerns only and must determine the existence of the right to condemn, and the second is limited to the sub- sequent inquiry as to the amount of compensation to be paid, for property adjudged in the first proceeding to be liable to condemnation. To the defendant railroad company, the essential question is, whether it may retain the exclusive 20 possession and control of its right of way, which it regards as indispensible to the safe and efficient discharge of its great public function and duty, or whether it shall be com pelled to receive upon its right of way another company which will have independent and antagonistic rights thereon. Any order which determines that question is a final order in that proceeding; the final order, indeed, to the railroad; and the question of the amount of compensation is essen- tially another and distinct question and issue, triable before another tribunal, after the court has disposed of the prior and graver question, as to the existence of the right to con- demn. To such an extent, indeed, did the trial court take this view of the matter, that it actually, and as we claim erroneously, turned over this secondary phase of the pro- ceeding to its clerk, even authorizing him to select and ap- point the commissioners.* * In the second assignment of errors printed in full at record page 85, the Railway Co. submitted (amongst other errors there assigned) that the Court “erred in directing its clerk to appoint commissioners to assess dam- ages as therein set out, and erred in prescribing the oath to be taken by said commissioners and in directing the mode of procedure and the princi- ples and rules by which said commissioners should be governed, and erred in fixing the place for the sessions of said commissioners and how they shall be presided over, and the elements to be considered by them and the form and substance of their report.” The oraer of September lth, 1895, appointing commissioners crecord, pp. 42-43) provided (amongst other things) as foliows: viz: (a.) “itis ordered that S. L. Trogdon, Esq., clerk of this court at Greensboro, North Carolina, do appoint three disinterested and compe- tent freeholders, resident in this district, and summons them before in * * = (b.) «*The said commissioners shall hold their meetings in the court-house of the United States, in the City of Greensboro, over which meetings said clerk shall preside. * Yee ic.) ‘The first meeting of the commissioners, of which the said clerk shall give due notice to them and to the parties, shall be held ten days after notice of their appointment has been served on the parties to this cause. * * *” This order is in direct violation of Section 145 of the Code of North Car- olina, which provides (amongst other things) as follows: «* The court shall hear the proofs and allegations of the parties, and, 21 Let us now briefly examine the statutes and decisions ot North Carolina regutating the matter of appeals, and then a ew authorities from other States and jurisdictions recognizing n analogous cases this dual character of condemnation and ertain other proceedings, with the bearing and effect of this eature upon the question as to the finality or appealable charac- er of decrees and orders. We trust that, even such a hurried ‘Xamination as we shall be able to make will serve to show hat the principles and positions above enunciated are recog- ‘ized by the courts, and have been approved even by the Su- ywreme Court of the United States. f no sufficient cause is shown against granting the prayer of the peti- ion, it shall make an order for the appointment of three disinterested ind competent freeholders, who reside in the county where the prem- ses are to be appraised, for the purposes of the company, and shall fix he time and place for the first meeting of the commissioners.”’ The full text of this section will be found at p. 51 of the record. It is respectfully submitted that the Cireuit Court could not rightfully del- gate its power to appoint commissioners to SL. Trogdon, Esq., its clerk. The selection of commissioners was a matter of vital importance. ‘he statute imperatively required them to be disinterested and competent reeholders. The questions of competency and disinterestedness were im- ortant subjects to be considered by the court in the appointment of such, ommissioners. It would take one of much boldness to contend that an in- ompetent freeholder should be appointed. It would take one of greater udacity to suggest that an interested freeholder could impartially discharge he duties of a commissioner. The determination, of the competency and isinterestedness of the freeholders to be appointed, was lodged by the tatute, in the sound legal discretion of the court. It was a burden and duty laced upon the court. If a case arose requiring the appointment of com- nissioners, the court and the court only could make the appointment. If he court could abdicate its important functions in this matter and clothe ts clerk with the power of appointment, it could delegate the power to ny other officer of its court, to any member of its bar, to an individual at arge. The order of September 15, 1898, directed that ‘¢ the said commission- rs shall hold their meetings in the court-house of the United States n the city of Greensboro.” It is provided in the early part of Section 1946 of the Code of North Car- lina in respect to said commissioner, that: * They shall view the prem- ses described in the petition.’’ See p. 52. The requirement of said order that ‘*said commissioners shall hold 99 WHEN APPEALS MAY BE TAKEN. Extracts from the Code of North Carolina, Regulating Appeal. “& Nee. 562. Intermediate orders affecting the judgment may be reviewed on appeal, CLC. P.. a, 313. “Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment.” “ Sec, 945. Supie me €ourt, its jurisdiction, Const . Art. TV, 2.8, C. C. F., 8. $15. “The Supreme Court shall have jurisdiction to review, upon appeal, any decision of the courts below, upon any matter of law or legal inference * *.” their meetings in the court-house of the United States in the city of Greensboro,”? was in disregard of said provision of the statute. It was greatly prejudicial to the rights of the Railway Co The case at bar was ene in which it was peculiarly necessary that the commissioners should view the premises. The strongest conceivable reasons exist for a view of the premises where a telegraph company seeks by hostile means and the ttrong arm of the law to condemn a right of way for its purposes along the narrow strip of land constitating the road-bed of a railway company. This proposition, capable of endless elaboration, seems too plain to require dis- cussion. The order of September 15th, 1898, goes further in respect to said meetings. It provides that “the said commissioners shall hold their meet- ings in the court-house of the United States, in the city of Greensboro, over which meetings said clerk shall preside.’’ The words “said clerk ” refer to 8. L. Trogdon, Esq., by whom said com- missioners were to be appointed. Where is the authority for the appointment of this presiding officer ? The court migh as well have appointed a stranger as its clerk. If it had the power to appoint the one, it had the power to appoint the other. The man- date of the statute is, ina proper case, that “ the court shall appoint three disinterested and competent freeholders.” Where is the authority for the enlargement of this body? Where is the authority for adding, not simply a fourth commissioner, but one clothed with the power of a presid- ing officer? What were to be the powers and duties of this presiding officer? Was he to guide and direct their deliberations? Was he to charge 23 “ See. 962. On appeal from interlocutory judgement, &e.. wo judg- ment to be entered ; opinion with instructions to be certified to court lnelow, R. C. c. 33, 8. 14, 1831, ¢. 20, 8. 3. “When an appeal shall be taken to the Supreme Court from any interlocutory judgment, the Supreme Court shall not enter any judgment reversing, affirming or modifving the judgment, order or decree so appealed from, but shall cause their opinion ea *?? to be certitied to the court below, with instructions © Nee, I48. Appeal, in what cases of may he taken, ce &. ee &. 299. * An appeal may be takey from every judicial order or deter- mination of a judge of a superior court, upon or involving a matter of law or legal inference, whether made in or out of them as the court charges a jury? Were his powers advisory or manda- tory? Were the commissioners to defer to his views, or might they follow their own, where a difference of opinion existed? Did he have a vote in fixing the amount of compensation ? The order of September 15th, 1898, record, pp. 42-45, provides that “the first meeting of the commissioners * * * — shall be held ten days after notice of their appointment has been served on the parties to this cause.” Under this order the clerk fixed the time for the first meeting of the said commissioners. By issuing notice at an early or late day, the clerk could have the commissioners to meet at such time as he, in the exercise of his discretion, wisely or unwisely, might determine, while the statute contem- plated that the court, in the exercise of a sound legal discretion, should fix the time for the first meeting of the commissioners. The language of the statute conferred this power upon the court. The order, in violation of the statute, delegated this power to a third person. The powers conferred upon S. L. Trogdon, Esq. (Clerk), were never contemplated by the Act of Congress clothing Circuit Courts of the United States with jurisdiction, and providing for the removal of causes from a State to a Federal tribunal. The Constitution of the United States and the statutes made in pursuance thereof contemplated that judicial power and authority should be exercised by the courts of the United States, and not by a private individual even though such private individual might occupy the ministerial position of clerk of the Federal court. When this cause was removed from the State court to the Federal court, the Railway Co. had a right to expect that all judicial power should be exercised by the Court and that all orders affecting its rights should be made by this tribunal. 24 term, which aftects a substantial right claimed in any action or proceeding; or which, in effect, determines the action, and prevents a judgment trom which an appeal might be taken ; or discontinues the action, or grants or refuses a new trial.” Decisions of the Supreme Court of North Carolina con- struing and applying the provisions of the Code of that State regulating appeals. g2 N. C., 657. Subject: When Appeal May be Taken. In Merrill v. Merrill, 92 N. C., 657, the first two paragraphs of the syllabus are as follows : “1. An appeal can be taken from an order of the Superior Court either making or refusing to make additional parties, when such order affects a substantial right of the appellant; and if seems that the appeal may either be taken at once, or ic can be assigned as error on an appeal from the final judgment.” “92. An appeal lies at once from an interlocutory order that may in effect put an end to the action, or that may prejudice a substantial right of the party complaining.” Merrimon, J., in delivering the opinion of the court (page 659), said: “It is well settled in respect to the time when it may be taken, that an appeal always lies at once from an interlocutory order or judgment that may in eftect put an end to the action, or that may prejudice a substantial right of the party com- plaining, if the appeal should be delayed until after the final judgment upon the merits.” 78 N.C., 181. Subject: When Appeal May be Taken. In Commissioners of Wake County v. Magnin, 78 N. C., 181, Reade, J., in delivering the unanimous opinion of the court (pp. 184—5) said : “It is objected by the plaintifts that the order below, over- 25 the demurrer, was not appealable; because it was not a udgment nor did it affect substantial rights, ©. C. P., 5. e have, however, over and over again, entertained ap- from such orders; and although it may admit of doubt er the Code would not bear a different construction, yet matter of practice which experience can best test, and if to be inconvenient, it can be easily altered by legislation, sibly by a rule of this court. But it ought not to be left to wreck legal navigation, and therefore we decide that der was appealable. In this case it works well, because an end to the action and saves the expense and trouble ial which could have availed nothing. But in a kindred etween the same parties at this term, where the demur- overruled, it had not the same advantage; for the case go down for an answer and trial. Yet even in that case cision of this court upon the demurrer may be, and we se will be, decisive of the case upon its merits. here is error. Judgment reversed and judgment here fendants.”” gi N. C., 418. Subject: When Appeal May be Taken. rsey v. Railroad, 91 N, C., 418. il action for damages tried at Fall Term, 1883, of Gaston ior Court. . defendants demurred to the complaint on the ground t did not state facts sufficient to constitute a cause of le the hearing the demurrer was overruled and, judgment rendered for the plaintiff, the defendant appealed. ith, C. J.,in delivering the unanimous opinion of the (p. 419), said : he right of the defendants at once to appeal from a judg- overruling a demurrer to the complaint is expressly de- | in the case of Commissioners of Wake v. Maquin, 78 X. 26 C., 181, and has been repeatedly recognized and acted on since.” 95 N. C., 248. Subject: When Appeal may be taken. In the case of Clements v. Rogers, 95 N. C., 248, the first paragraph of the syllabus is as follows: “T. Where an action is brought for an account, and the answer pleads matter in bar of the account, and a trial is had of the issues raised by the plea in bar, an appeal lies by the defendant from a judgment ordering an account before the ac- count is taken.” Decisions of the Supreme Court of Appeals of West Vir- ginia, holding that the right to condemn should be deter- mined before the appointment of commissioners, and that the order determining such right is an appealable one. 6 W. Va., 397. Subject : Order determining right to condemn immediately appealable. In the case of Ches. & Ohio R. R. Co. v. Pack, 6 W. Va., 397, the court at pp. 408-411, said: “Under the provisiens of Chapter 42, when a company, in- corporated for the construction,of an internal improvement, makes application to a Circuit Court to appoint commissioners to ascertain a just compensation to the owner of land proposed to be taken, the applicant must prove or the owner admit, or it must in some way appear tothe court, that the applicant has a lawful right to take the land for the purpose stated in the application, and the court must decide that fact, before the appointment of freeholders. The right to take the land implies the consent of the owner: unless the land be in a city or in- corporated town, when consent is not necessary. Consequently the consent, when requisite, must be approved, or admitted or given in court, before or at the time when the court adjudicates the right to take the land and proceeds to appoint commis- sioners.”” 27 After the court has acted, when it appears by the record a proper application in writing was made to the court, and ice given to the owner of the land, or he appeared, and it is nd recited that the court was of opinion that the applicant lawful right to take the land, and the court appointed free- lers, and, with the action of the parties themselves, organ- 1 the commissioners, this implies either the consent of the ver, or the location of the land in a city or incorporated n—one or the other of which facts is indispensable, though er is sufficient, to authorize the judgment as to that primary Though after the commissioners have been appointed, t should appear on the record or be within the recollection the Court, that there was no proof or admissions of either these facts, or any others necessary to the judgment given | consequent action taken; or if the owner should show to court that notwithstanding his employment of reasonable gence, he was, by fraud, accident or mistake, prevented m defending or excepting to the proceeding, and that the ual facts were not adduced, or that those presented to the rt might have been overthrown or avoided, or did not war- tthe judgment; the court before which the case was pend- should set aside the judgment and action: and, if, under > sueh circumstances, the court failed to do so, and the facts, wild by bill of exceptions, or otherwise, appear in the record, s court would reverse the judgment. But, when no such ng appears, this court must presume that the judgment of Circuit Court was proper and accordingly must affirm it.” ‘Many authorities, upon subjects more or less analagous, ongiv indicate that even though the owner may not have wessly consented that an improvement company applying it, should take his dwelling house and adjoining land, yet company’s filing the application, their notice to, or the ap- irance of the owner, and his failure to object—especially en he participates in the designation of commissioners to yraise the land—in themselves constitute or conclusively im- consent.” ‘Tf the court, with the co-operation of the parties, should 28 it commissioners, whose duty it would be to bring wit- before them, hear them testify, read depositions, and go and view the land, hear counsel, and ascertain a just nsation to the owner for the land to be taken, and dam- » other land, beyond the peculiar benefits to be derived the contemplated improvement, and make their report; ore the court should finally determine the right to take nd for any compensation whatever; this would occasion t unreasonable and onerous expenditure of labor and , without assurance of benefit to either party. With \ practice, the owner would take his chance for high res, and afterwards, if he were disappointed, would deny nsent, or controvert the right to take the land, and so the purpose of the proceeding. Failing to object and ently supposed to consent, he would thus abuse the ity of the applicant, evade the vigilance of, the court, wing availed himself of the attendance and examination nesses, and the action of commissioners, would aftter- as the result might be favorable or unsatisfactory, adopt ct the appraisement.” 1¢ commissioners are charged with no inquiry as to the it of the owner, and nothing as to that fact can properly sented to or considered by them. Indeed, so far as the ‘expresses its purpose, the court itself, having appointed mminissioners, has afterwards no power in any case to ider the propriety of what it did. Though, I suppose, the peculiar circumstances heretofore suggested, the may review and reverse its former action and again act » subject.” xcept under such circumstances, when the report has eturned, if no good cause relative to the action of the issioners be shown against the report, and it be not erro- or defective on its face, the court should contirm it. nder the law, the court enters no other jadgment than, o determine the legal right to take the land, and, after mmissioners have acted, to confirm their report. From these emana from ft interes land.” Subjec In t the R: belong that it eeedin ings al the ris having value « Iron ¥ CAUSE \ reverse by Job . trial ce * joined that yn has la stated its sii such } pensat ‘detend bill of signed thereil to app Iron \ “Tl 1 i ~. 29 gments, without other sentence or condemnation, the right of the applicant, within twelve months late of the report, to pay the sam ascertained, with nd thereupon to become invested with the title to the 31 W. Va., 710. irder determining right to condemin immediately appeala' de. vase of Railroad Co. v. Tron Works, 31 W. Va., 719, vad Company sought to condemn certain property to the Iron Works. The latter answered denying roperty could be lawfully condemned in that pro- ut the trial court, upon consideration of the plead- ‘vidence, determined that the Railroad Company had to condemn the property of the Tron Works, and determined, appointed commissioners to appraise the he property, At this stage of the proceedings the ks obtained a writ of error and supersedeas, and the heard by the Supreme Court of West Virginia and The unanimous opinion of the court was delivered yn, President, who (with regard to the action of the ), at pp. 717-718, said : -* the court found for the petitioner on the issues id thereupon it was considered by the (trial) court ‘ry notice had been given, and that the said petitioner | right in this proceeding to take for the purposes the amended petition, the several parcels of land in mended petition mentioned and deseribed, and for Oses tO wequire title to said parcels upon just com- : to which ruling and judgment of the court the , Benwood Iron Works, excepted, and tendered its veptions thereto, and asked that the same might be di sealed by the court and made a part of the record hich was accordingly done. The court then proceeded t the commissioners. To this order the Benwood ks obtained a writ of error and spersedeas.” hain question to be decided is: Was the use to which 30 ds sought to be condemned were to be put, a public use then, of course, the lands could not be legally cou- 1 under the Jaw of eminent domain. If the use were then it matters not that the Benwood Iron Works had nty years reserved its lot for the purpose of building a irnace thereon. It could be taken for public use, and s to the Co. could be compensated in damages. The n here is not one of compensation, but it is whether itioner had the right to take the property... It, of course, right to take private property for private use, but it ha- ht to take private property for public use, on paying a mpensation therefor. The right to take, which depends ‘hether it is to be taken for public or private use, is a | question, and the decision of the Circuit Court on that nis subject to review, Railroad Co. v. Radroad Co., Vi -» 812.” 34 W. Va., 155. et: Order determining right to condemn immediately appealable. ve case of Bridge Co. v. Bridge Co., 34 W. Va., 155, the ing Bridge Company petitioned the Circuit Court of punty, West Virginia, to condemn certain Jantd belong- the Wheeling & Belmont Bridge Company. The de- t company filed seven pleas, of which three were rejected sue was joined on the remaining four. A jury was im- J, and found in favor of the, plaintiff Thereupon, an vas made determining that the property of the defendant ny was subject to condemnation, and commissioners ted to assess damages. At this stage of the proceedings eal was taken to the Supreme Court of Appeals of West ia and the judgment of the trial court was affirmed. leclivering the unanimous opinion of the court, Lucas, at p. 162, said: jury was impanelled, and upon the defendant's four upon which issue was joined, they found separately for the plait ‘We, th Compan: judgmen the prop assess a suspend to this e From Virginia was tak affirmed 138 U. Ss Subject In W dated Od judgmen to conde ment wa The ri determit and appe ered so cussed, Decis: cognizin Suit, afte proceed: appealal right to a ea 31 , and then rendered a general verdict as follows : iry, find for the petitioner, the Wheeling Bridge neach and all of the issues joined.” Thereupon ‘as rendered, that there was necessity to condemn y demanded, and a commission was appointed to t compensation to the owners. Proceedings were however, until a writ of error could be prosecuted yg order of the Supreme Court of Appeals of West lirming the judgment of the trial court, the case to the Supreme Court of the United States, and der the title of Belmont Bridge v. Wheeling Brida, 87. 35 W. Va., 205. der determining right to condemn immediately appealable. ing Bride & Terminal Ry (‘o. v. Camden Conseli- . 35 W. Va., 205 an appeal was taken from the t the trial court that certain property was subject ation and appointing commissioners, and the judg- tirmed by the appellate tribunal. to appeal from the judgment of the trial court, - that the property was subject to condemnation, ing commissioners to assess damages, was consid- ] settled, that the point was not noticed or dis- of the Supreme Court of the United States re- he proceedings in a West Virginia condemnation he appointment of commissioners as ‘‘ a distinct *’ and also following the State Court as to the character of the prior order determining the idemn. 32 138 U. S., 287. Subject : When order final or appealable. In Belmont Bridge v. Wheeling Bridge, 138 U. S., 287, Mr. Justice Field, in delivering the unanimous opinion of the court, at p. 290, said : “The defendant in error, the plaintiff below, moves in the alternative to dismiss the appeal on the ground that the judg- ; ment recovered is not final, or to affirm the judgment on the ground of the manifest insufficiency of the errors assigned. The essential points of contention in’ the case related to the necessity of the property for the purpose of the petitioner, and to its necessity to the defendant for the proper exercise of its franchise. The judgment for the condemnation was conelu- sive upon both particulars. A right to condemn, as held by the Supreme Court of the State, is to be determined betore the appointment of commissioners to estimate the amount of compensation to be made. Baltimore & Ohio Radroad v. Pitts- hurgh, Wheeling, Ve, Radlroad, 17 W. Va., 812. If the judg- ment had been different, all further proceedings would have been ended. Being for the condemnation, the estimate of the compensation, which was to follow, was to be made by commissioners, to be appointed, and might therefore be treated as being a distinct proceeding. The judgment ap- RR ERROR A Re ee pears to have been considered by that court as so far final as to justify an appeal from it: and if the Supreme Court of a State holds a judgment of an inferior court of the State to he final. we can hardly consider it in any other light, in exerels- ing our appellate jurisdiction, The motion to dismiss must therefore be denied. ’ wide We note fron. other decisions of the Supreme Court of ; i é E | 3 ba 4 2 * 3 ™ 3 3 a A F the United States, not as furnishing a strict analogy to the case at bar. but rather for the purpose of showing that The oft quoted rule that an order or decree—-which leaves anything further, of a judicial nature, to be done in the _ — oT 33 cause, is not final or appealable is notto be regarded asa rule of universal application. 3 Cranch, 179. Subject: When order final or appealable. In Ray v. Law, 3 Cranch, 179, the court said: “The act of Congress points ouf the mode in which we are to exercise our appellate jurisdiction, and only authorizes an appeal or writ of error on a final judgment or decree. * * * % * - * * “The court, however, is of opinion that a decree for a sale under a mortgage is such a final decree as may be appealed from. We suppose, that when the court below understands that to be our opinion, it will allow an uppeal, if it be a case to which this opinion applies.” 13 Peters, 13. Subject: When order final or appealable. In Whiting and others v. The Bank of the United States, 13 Peters, 4, the court at page 13 said: * But is the objection itselfin principle well founded? That depends upon this: whether the decree of foreclosure and sale is to be considered as the tinal decree in the sense of a court of equity, and the proceedings on that decree a mere mode of enforcing the rights of the erec “tor, and for the benefit of the debtor ; or whether the decree is to be deemed final only after the return and confirmation of the sale by a deeretal order of the court. We are of opinion that the former is the trae view ofthe matter. The original decree of foreclosure and sale was final upon the merits of the controversy. The defendants had aright to appeal from that decree, as final upon those merits as soon as it was pronounced, in order to prevent an irrepar- able mischiet to themselves, For, if the salé had been com- pleted under the decree, the title of the purchaser under the de- 3 34 eree would not have been overthrown, or invalidated even by a reversal of a decree; and consequently the title of the deten- dants to the lands would have been extinguished; and their redress upon the reversal would have been of a different sort from that of the restitution of the land sold. In Ray v. Lev, 3 Cranch R., 179, it was held by this court that a decree of sale of mortgaged premises was a final decree in the sense of the Act of Congress, upon which an appeal would lie to the Su- preme Court. This decision must have been made upon the general ground that a decree, final upon the merits of the con- troversy between the parties, is a decree upon which a bill of review would lie, without and independent of any ulterior pro- ceedings. Indeed, the ulterior proceedings are but a mode of executing the original decree, like the award of an execution Kk 99 at law. * x se ‘ 6 Howard, 201. Subject: When order final or appealable. In Forgay v. Canrad, 6 How., 201, this court at page 25 said : “The question upon the motion to dismiss is whether this is a final decree, within the meaning of the acts of Congress. Undoubtedly, it is not final, in the strict, technical sense of that term. But this court has not heretofore understood the words ‘final decrees’ in this strict and technical sense, but has given to them a more liberal, and, as we think, a more reasonable construction, and one more consonant to the inten- tion of the Legislature.” And at page 204 the court said: «* * * * And when the decree decides the right to the property in contest, and direets it to be delivered up by the defendant to the complainant, o1 directs it to be sold, or di- rects the defendant to pay a certain sam of money to the com- plainant, and the complainant is entitled to have such deeree carried immediately into execution, the decree must be re- garded as a final one to that extent, and authorizes an appeal — Ja. to this court, although so much of the bill is retained in the Circuit Court as is necessary for the purpose of adjusting by a further decree the accounts between the parties pursuant to the decree passed.” 2 Black, 530. Subject : When order final or appealable. In Bronson v. Railroad Company, 2 Black, 524, the court, at pp. 530-531, said : “Tf this court should find that Bronson & Soutter are enti- tled to their whole claim, and in the meantime the property is sold and out of their control, how would their success benefit them? It would be a victory barren of results. If the de- cree was reversed there could be no restitution of the road, its property and franchises ; for the purchasers at a judicial sale are protected. “A rule, from which consequences so injurious to the rights of parties litigant would necessarily result, has never received the sanction of this court. “This decree is not final, in the strict technical sense of the word, for something yet remains for the court below to do, But, as was said by Chief Justice Taney, in Forgay et aly. Con- rad (6 How., 203), ‘this court has not therefore understood the words ‘final decrees,’ in this strict, technical sense, but has given to them a more liberal, and, as we think, a more reasonable construction, and one more consonant to the inten- tion of the Legislature. “In the case of Ray v. Law (3 Cranch, 179), and Whiting v. The Bank of the United States (13 Wheaton, 15), this court has decided that a decree for the sale of mortgaged premises is a final deeree from which an appeal lies. The court rested their decision on the ground that when the mortgage was fore- closed and a sale ordered, the merits of the controversy were finally settled, and the subsequent proceedings were simply a means of executing the decree.” a FALE LL A IDL LINE OE EAE E III ORIN” LT IRE RS ena dTted 7 Wall., 342. Bubject : When order final or appealable. In Thomsyh y. Dean, 7 Wall., 342, a motion was made to dis- miss let ca on the ground that the decree from which it was taky was not final. The ourt refused to dismiss the appeal, and its ruling is staty( i in the syllabus, as follows : ‘1. The rule laid down in Forgay v Conrad, (6 Howard 204), as to what éonstitutes a final decree for the purpose of an appeal, recognized as the true rule on the subject. _ Hence, where a bill related to the ownership and transfer of certain stoc " a decree was held to be final when it decided the right to the prop- erty in contest, directed it to be delivered by the defendant to the com- plainant by transfer, and entitled the complainant to have the decree carried immediately into execution, leaving only to be adjusted accounts between the parties in pursuance of the decree settling the question of ownership.” 105 U. S., 527- Subject: When order final or appealable. In Trustees v. Greenhow, 105 U. S., 527, Mr. Justice Bradley in delivering the opinion of the court at page 531 said : “ The first question, however, is, whether these orders do or do not amount to a final decree, upon which an appe “al lies to this court. They are, certainly, a final de ‘termination of the particular matter arising upon the complainant’s petition tor allowances, and direct the payment of money out of the fand inthe hands of the receiver. Though incidental to the cause, the inquiry was a collateral one, having a distinct and inde- pendent character, and received a final decision. The ad- ministration of the fund for the benefit of the bondholders may continue in the court for a long time to come, dividends being made from time to time in payment of coupons still un- catistied. The case is a peculiar one, it is true; but, under all the circumstances, we think the proceeding may be regarded as so far independent as to make the decision substantially a tinal decree for the purposes of an appeal.” S ROP SERA i iltied PBL SD AI, PMT ¥45 . sisal PES ILS PEL PLA EL: eee re eee Se 37 129 U. S., 206. Subject: When order final or appealable. In Farmers’ Loan and Trust Company, 129 U. 8., 206, this eourt awarded a mandamus directing the Judges of the Cireuit Court to allow an appeal. The syllabus of the case is as fol- lows: “An order of a Circuit Court of the United States, in a suit in equity for the foreclosure of a mortgage upon the property of a railroad company, that the receiver of the mortgaged property may borrow money and issue certifi- cates therefor to be a first lien upon it, made after final decree of foreclosure, and after appeal therefrom to this court, and after the filing of a supersedeas bond, establishes, if unreversed the right of the holders of the certificates to priority of payment over the mortgaged bondholders, and is a final de- cree from which an appeal may be taken to this court.” The first and fourth paragraphs of the opinion, pp. 213-215, are as folluws: “The reasons why the judges declined to allow this appeal may be substantially divided into two. The first and most important of these is, that the order from which the appeal is asked is not a final decree, within the meaning of the act of Congress on that subject, but is a mere ancillary proceeding for the protection of the property pendiag an appeal from the principal decree now before this court. But the doctrine that, after a decree which disposes of a principal subject of litigation and settles the rights of the parties in regard to that matter, there may subsequently arise important matters requiring the judicial action of the court in relation to the same property and some of the same rights litigated in the main suit, making ne- cessary substantive and important orders and decrees in which the most material rights of the parties may be passed upon by the court, and which, when they partake of the nature of final decisions of those rights, may be appealed trom, is well estab- lished by the decisions of this court. Blossom v. Milwaukee, fe., Railroad (%., 1 Wall, 655; Forgay v. Conrad, 6 Wow., 201; sag v. Schall, 99 U. 8., 255; pager v. Morgan, 111 U 684 ; Bur ane v. . Bowen, 111 U. = 176. ‘ These views we do not propose to ici: farther than to say that if this order does not give the iender of the money 38 h prior lien upon the proceeds of the property of the com- y, it is because the court had no authority to make it, and t would be a fraud upon sach lender justice could only be 1e by enforcing it. If this view of the subject be correct, vhich we entertain no doubt, the order is a final one. It is ecree fixing upon the property, on which the trust company y has a first lien, another lien of $120,000, and making it “amount to that. It changes the relation of that company this property, displaces its rights as settled by a decree w pending in this court, and if that decree is affirmed, it effect modifies it, although this court may say that it suld stand and be enforced. This order comes within all . elements of finality which we can imagine to belong to iecree of the Circuit Court. It establishes certain rights the parties, to the injury, as petitioners believe, of their erests in the property.” 140 U. S., 52. Subject : When order final or apppealable. In the case of Hill v. Railroad Company, 140 U. 8., 52., Mr. stice Field, speaking for the court, at pp. 53-44, said : ‘The ease is now before the court upon this last appeal, and » question is whether, upon it, any of the matters which were termined by the‘decree of June 8, 1885, are again open for nsideration. All the errors alleged relate to that decree. ne are assigned to the decree of July 14, 1887. “We are of thé opinion that the decree of June 8, 1885, was inal decree, within the meaning of that term in the law re- ecting the appellate jurisdiction of this court, as to all mat- ‘s determined by it, and that they are closed against any rther consideration. It disposed of every matter of conten- n between the parties, except as to the amount of one item, d referred the case toa master to ascertain that. [t dismissed e bill against several defendants for want of equity, and de- ed relief to the complainant upon all matters in controversy cept as to that amount, and retained the case only as against Ce - . s RETR ag are _ , song 7 .-. «he 39 rties interested in that matter. The rights and liabilities he parties were in other respects determined. it there was no adjudication as to the payment of the it to be ascertained by the master; that remained unset- It was, however, @ severable matter from the other subjects roversy and did not affect their determination, The fact that not disposed of did not change the finality of the decree he defendants against whom the bill was dismissed ; that it, or to whom made payable, did not concern them. were no longer parties to the suit for any purpose The | from the subsequent decree did not reinstate them. All erits of the controversy pending between them and the ainant were disposed of, and could not again be reopened, / on appeal from that decree. As to the other parties, mained to ascertain the amount of one item and to nine as to its payment. The decree of July 14, 1887,