He claims to have put his invention into working form in the latter part of 1887. He says that Henry W. Winter, who worked in the shop, assisted him in doing the work, and he charges Winter with carrying off parts of the model when he left the shop and services of the Union Trimmer Company and entered that of the McKay & Bigelow Company. No one besides Winter seems to have seen this model or device, according to Noble's evidence, and the only corroboration that he has is in the evidence of J. E. Maynadier, who says that some time prior to September 30, 1886, Busell and Noble called at his office. The purpose was then to prepare for the Busell application. He says:

"I had been informed by Noble that the combination of the heel-cutter with the guard and rand-knife by means of a carriage adjustable to cause the lip of the guard to yield in a direction parallel with the cutting-edge of the blade of the heel-cutter was not to be shown in those diagrams for the reason that such improvement on or modification of Busell's invention was the invention of O. L. Noble and to be covered by a patent to be applied for by him. . I also know that the manner of revolving the rand-knife when its axis of revolution was out of line with the axis of revolution of the heel-cutter was explained to me, and I feel pretty sure that the means explained are those shown in Noble's application now in interference."

Henry W. Winter says that he was employed in the machine shop of the Union Trimmer Company under Noble, and that while examining one of the Busell cutters he himself conceived the idea of the double-link device from a parallel rule ordinarily used by draftsmen, which a fellow workman was holding in his hand and working back and forth; that he made a drawing and then a crude machine, which he fastened to a Busell cutter and experimented with; that he made another and larger one to operate with what was called the "O. L. Noble Cutter," which was intended to be driven by means of a pin in the face of the rand-carrier, inserted in a hole made something larger than the pin, and

that this was left by him in the shop. He says that he tried to secrete his invention from Noble, but that one day in the fall of 1887 Noble came in the shop and saw this device mounted on a machine (this is called in the evidence "Exhibit Noble No. 1"); that as soon as Noble saw this he said: "Mr. Winter, you have got it," and then commenced to negotiate for its purchase; that Noble declining his proposition he sold it to the McKay & Bigelow Company and went into their employment, after having been discharged by Noble. It appears that an application for a patent was made in Winter's name October 9, 1888, and that a patent issued thereon March 3, 1891. There was some testimony introduced which tended in some degree, it may be said, to corroborate Winter's testimony as to his invention, though not necessarily incompatible with Noble's contention.

It is not necessary now to pass upon the evidence on this point and determine whether Noble or Winter be the real inventor of the link-carriage or improvements thereon. This controversy may be waged hereafter should an interference be declared between Noble and Winter, and we will intimate no opinion with respect to its merits.

It is clear that neither Winter or Noble made this invention. It has been patented to Winter, as we have seen, but evidently for the use of the McKay & Bigelow Company, the real owners of the Glidden claim also. Its patentable novelty must be assumed, therefore, as far, at least, as those parties are concerned. Glidden certainly did not invent it, and until he obtained the device through Winter, his combination of the rotary heel-cutter and the rand-knife and guard was inoperative and of no practical use. He is not, therefore, entitled to priority, in the matter of this interference, over Noble, whose application was first on file.

It follows from what has been said that the decision of the Commissioner of Patents in each case (No. 14 and No. 15) must be affirmed, and the proceedings and decision of this court certified to be entered of record in the Patent Office, as required by law. It is so ordered.

THE DISTRICT OF COLUMBIA

V.

PROSPECT HILL CEMETERY.

PROSPECT HILL CEMETERY

บ.

THE DISTRICT OF COLUMBIA.

THE DISTRICT OF COLUMBIA

v.

BARBOUR.

THE DISTRICT OF COLUMBIA

2.

MOORE.

PRACTICE; APPEALABLE ORDERS; CONDemnation PROCEEDINGS; DAMAGES; BENEFITS; REVERSIBLE ERROR.

1. A motion to vacate an order of the Supreme Court of this District, confirming a report of commissioners in condemnation proceedings, is in the nature of a motion for a new trial, and is not appealable to this court.

2. Where an act of Congress directing that court to vacate its order of confirmation in such proceedings is passed subsequent to the expiration of the term at which the order was made and to the removal of the cause to this court on appeal, an appeal from such order will not be entertained.

3. An order ratifying the report of the commissioners in such proceedings does not transfer the title of the property nor affect any vested rights; and therefore an act of Congress directing 5 Ct. App.-32

the court to vacate its order of condemnation cannot be construed to be an abandonment by the Government of its intention to take the land.

4. A report of commissioners as to the value of the land involved in condemnation proceedings is equivalent to the verdict of a jury, and cannot be reviewed on an appeal from an order of the court confirming the report, upon the ground that the damages awarded are excessive.

5. Where, by the condemnation of a portion of a tract of land to be used as a highway, the owner is divested of the beneficial use of the balance of the tract, he is entitled to compensation for the injury sustained to the portion of the tract not actually taken.

6. An instruction by a trial court to the commissioners in condemnation proceedings will not, at the instance of the Government, be held to be erroneous, which directs them to estimate the value of the land to be taken with reference to its present uses. If erroneous, such error would operate against the owner and not the Government.

7. Where a statute providing for the condemnation of land for highway extension purposes makes no provision for the assessment of benefits or damages, it is improper to charge against the land owner benefits which may accrue to the remainder of his property by the extension of a highway through a portion of it, or to allow such benefits to be set off against the value of the land taken.

8. The public authorities, in the pursuit of an avowed purpose to acquire certain land by condemnation for public use, may not, while persisting in the avowal of such purpose, withdraw from the inquisition and the judgment of the court thereon, because they are dissatisfied with the result, and seek by other methods to procure a smaller valuation of the desired property. Nos. 359, 373, 419, and 420. Submitted February 4, 1895. Decided March 4, 1895.

HEARING on an appeal and cross-appeal from an order of the Supreme Court of the District of Columbia sitting as a District Court of the United States, confirming the report of the commissioners in condemnation proceedings; and an appeal by the District of Columbia from a decree in an equity suit granting a permanent injunction against further or other condemnation proceedings. Order modified and decree affirmed.

The COURT in its opinion stated the case as follows:

These several appeals all refer to the same subject matter,

and were argued together. They arise out of proceedings instituted in the Supreme Court of the District of Columbia under an act of the Congress of the United States for the opening of an extension beyond the limits of the city of Washington of the street known as North Capitol street.

The act of Congress referred to was one of December 21, 1893, entitled "An act to extend North Capitol street to the Soldiers' Home." By it the Commissioners of the District of Columbia were directed to open and grade North Capitol street from T street to the Soldiers' Home, and to condemn, in the manner provided by law prior to March 2, 1893, for the condemnation of land in the District of Columbia, such of the lands of the Prospect Hill Cemetery and of Annie E. Barbour as might be necessary for the extension of said street. The law in force prior to March 2, 1893, is found in an appropriation act of August 30, 1890 (26 Stat. 371, 412), in which it was provided that, for the purpose of procuring land in the city of Washington for the construction of additional buildings for the use of the Government Printing Office, applications should be made by petition to the Supreme Court of the District of Columbia, which, after proper notice to the parties in interest, should appoint three capable and disinterested persons as commissioners to appraise and value the land proposed to be taken, and to return their valuation thereof to the court, and that, upon confirmation by the court of their report, the President of the United States should, if he thought the public interest required it, cause payment to be made to the parties in interest in accordance with the judgment of the court, and upon such payment the lands should be deemed to be condemned and taken by the United States for the public use. And it was further provided in the act that thereafter, in all cases of the taking of property in the District of Columbia for public use, the proceedings should be as in this act prescribed.

Prior to this act of August 30, 1890, the matter of the construction of public highways in the District of Columbia