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If again, the government seek to take the property of A, consisting of a single house in a city, and he has also acquired, through a separate title and at a different time, houses adjoining, would the government be liable to A for the damage sustained by that other property on account of the use the government proposes to make of the property taken? Or again, if A purchase a block of vacant lots in a city from one source and at one time and erect a row of buildings there on, and one building the government seeks to take, would the government be liable for the damages sustained by the other houses by reason of the uses to which it would put the building taken? These are questions involving different facts which may possibly show the various difficulties inhering in the subject under some circumstances (see Lin

and Wellington v. Boston & M. R. Co. 164 Mass. 380, 41 N. E. 652); but in the case before us those difficulties do not, in our judgment, exist. There are here separate and distinct farms conducted under the circuinstances detailed, and we cannot see that the owner of those separate farms not taken established any right of payment for damages to them arising from the use which the government intended to make of the land it took.

subject of the condemnation proceedings. It had never been farmed or used in connection with either of the other farms owned by the plaintiff in error. It was in no way reasonably or substantially necessary to the enjoyment of the other two tracts. Separated from it by a public road, the White farm, so called, had only been purchased by plaintiff in error ten days before the proceedings for condemnation were begun. The authorities cited by the defendant in error fully support their contention in this respect. In Currie v. Waverly & N. Y. Bay R. Co. 52 N. J. L. 392, 20 Atl. 56, cited by counsel for plaintiff in error, for the proposition that where a part of the tract is taken for condemnation, damages to the remaining land shall be given, the court also says: 'It is an established rule in law, in proceedings for condemnation of land, that the just compen-coln v. Com. 164 Mass. 368, 41 N. E. 489, sation which the land owner is entitled to receive for his lands, and damages thereto, must be limited to the tract, a portion of which is actually taken. The propriety of this rule is quite apparent. It is solely by virtue of his ownership of the tract invaded that the owner is entitled to incidental damages. His ownership of other lands is without legal significance.' It is enough to say that, in our opinion, the two other farms or tracts of land owned by plaintiff in error constituted such separate and independent Although denying the right to recover cerparcels, as regards the land in question, that|tain alleged damages to the land remaining, they cannot properly be spoken of as the the court was not illiberal in the rules it residue of a tract of land from which the adopted for ascertaining the compensation land in question was taken." due for the taking of the land. It permitIf A own a single house in a block in a ted the jury to consider not only the purpos city and the government proposes to take it, es to which the land taken had been put, but is it liable to the owner of the house adjoin- also, as bearing upon its value, the jury was ing for a depreciation in its value by reason directed to consider evidence as to the adapt of the taking of the house of A for the pur- ability of the land for other than merely ag poses proposed? In other words, would the ricultural purposes; that while no merely government be liable to the owner of land speculative value was to be placed on the not taken for damages which were incidenland, this possible adaptability was to be tal because of the use intended by the gov- considered, and if, in the judgment of the ernment of the property it took? In such case no property of the owner of the other jury, it was probable that the improvements land is taken, and although very great dam- which had been spoken of in*the testimony age might be inflicted upon him by the use would, within some reasonable time, be of the property taken, has he a constitution-made, that was an element which might enal right of recompense? It would be within the discretion of Congress to provide that this damage should be paid to the owner of Therefore the jury was permitted to take the land not taken, yet still, in proceedings into consideration the future possible buildto condemn a property for public use on pay-ing of a railroad in the neighborhood which ment of "just compensation," under the Constitution, we cannot think (in the absence of Congressional action to that effect) that the government would be liable for consequential damages sustained by a party, no portion of whose property was taken. Although the present is not exactly such a case, yet the illustration serves to somewhat bring out the principle under review.

ter into their calculation in forming their estimate of the value of the land.

would pass within a mile or so of Fort Mott, although no steps had yet been taken to build it; still, as there had been some talk of building it, and the railroad might thereafter be built, the jury were instructed that if they thought from the evidence it would be built within a reasonable time, and that if built it would enhance the value of the property, they might take that fact into consider

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ation as giving the then present actual value | application, and that they withheld direct beyond that of an ordinary farm.

The same instructions were given in relation to a trolley road which it was supposed might be built to run near this land.

consent, leaving the matter entirely to the court to determine. When the motion was submitted, objection to the granting of leave was made by counsel for appellees.

The jury was also permitted to consider the adaptability of the land for a hotel or cottage sites, and in addition, as already stated, the court charged that if the evi-ing dence showed that by reason of the severance of these farms they were made so small that it would be unprofitable to work them, the jury ought to give the damages arising therefrom.

Where, in a pending case, application to file briefs is made by counsel not employed therein, but interested in some other pendcase involving similar questions, and consent is given, the court has always exercised great liberality in permitting this to be done. And doubtless it is within our discretion to allow it in any case when justified by the circumstances. Green v. Biddle, 8 The last assignment of error arose from Wheat. 17, 5 L. ed. 551; Florida v. Georgia, the charge of the judge that the jury must 17 How. 491, 15 L. ed. 188; The Gray Jackbe satisfied as to the value and damage by et, 5 Wall. 370, 18 L. ed. 646. It does not the testimony that was produced before it, appear that applicant is interested in any without reference to any testimony that was other case which will be affected by the deciproduced before the commissioners, or influ- sion of this case; as the parties are repre enced by the commissioners' report. This sented by competent counsel, the need of asinstruction we think was clearly correct. sistance cannot be assumed and consent has The case was tried de novo upon the appeal | not been given. before the court and a jury, and the only testimony to be considered was that which was received on that trial, supplemented by the knowledge obtained by the jury from a personal view of the premises.

Upon a consideration of the whole record, we think, there was no error committed upon the trial of the case before the jury, and the judgment of the Circuit Court of Appeals for the third circuit, affirming the judgment of the District Court for the district of New Jersey, is, therefore, affirmed.

(191 U. S. 555)
NORTHERN SECURITIES COMPANY et
al., Appts.,

v.

UNITED STATES.

Amicus curia-leave to file briefs.

Leave to file briefs in a pending case as amicus curia will be denied where it does not appear that the applicant is interested in any other case which will be affected by the decision, and the parties are represented by competent counsel, whose consent has not been secured.

[No. 277.]

Leave to file must, therefore, be denied.

(191 U. S. 225) LOUISVILLE TRUST COMPANY, Receiver of the Estate of the Evening Post Company, Appt.,

บ.

STUART R. KNOTT et al.

Direct appeal from circuit court — case in which jurisdiction is in issue.

The question whether a Federal circuit court, under the principles of equity and comity gov. erning all courts having concurrent jurisdiction over the same subject-matter, has authority to administer a trust estate after a suit with reference thereto has been begun in a state court, does not involve the jurisdiction of the circuit court as a Federal tribunal, which alone, under the act of March 3, 1891, chap 517, § 5 (26 Stat. at L. 827, U. S. Comp. Stat. 1901, p. 549), can furnish ground for a direct appeal to the Federal Supreme Court as a case in which "the jurisdiction of the court is in issue."

[No. 389.]

Submitted October 13, 1903. Decided November 30, 1903.

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Mr. Justice Harlan delivered the opinion | leased the property and assets of the old of the court:

This case arises out of the conflicting claims by the circuit court of the United States for the western district of Kentucky, and the circuit court of Jefferson county, Kentucky, chancery branch, as to the right to administer the property and affairs of the Evening Post Company, a corporation of Kentucky.

company, until a sale should take place.

Prior to the making of that instrument, to wit, on May 12th, 1903, the executors and executrix of the estate of W. N. Haldeman commenced a suit in the Jefferson (Kentucky) circuit court, chancery branch, first division, against the old Post Company, the Columbia Finance & Trust Company, Richard W. Knott, J. M. Atherton, John R. The Federal court having possession, by Knott, Eugene Q. Knott, and Laura G. its receiver, of the property of that company, Boyle; the plaintiffs and the individual dedeclined to surrender possession to the fendants being respectively owners of stock Louisville Trust Company, the receiver ap- in the old company. The object of that suit, pointed by the state court. From the final as disclosed by the petition, was to obtain a order dismissing the intervening petition of settlement of the accounts of the company the latter company, the present appeal was and of its liquidator; and to that end the prosecuted. That order stated: "This ap- plaintiffs asked a reference of the cause to peal is granted solely upon the question of the commissioner of the court to audit and jurisdiction over the subject-matter of the settle the accounts of the Columbia Finance trust estate of the Evening Post Company & Trust Company, and after such auditing in controversy, and the question of whether and settlement, that the assets of the comthis court, or the said Jefferson circuit pany be sold, and the proceeds distributed court, chancery branch, first division, has according to law. The plaintiffs further prior jurisdiction in [is] the single question | prayed that pending the action, and until upon which this cause is decided as to the the final liquidation of the affairs of the old said Louisville Trust Company; this court company, and the sale of its assets, the court holding that its jurisdiction over the said determine whether its affairs should be contrust estate of the Evening Post Company is tinued in operation, and if so, that the manprior and exclusive of the said Jefferson cir- agement of the plant be under the direction cuit court, chancery branch, first division, of the court; further, that a preliminary or all of which is hereby certified on the appeal der be entered, commanding and directing of the said Louisville Trust Company as re- the defendants and each of them to allow the ceiver, etc., to the Supreme Court of the plaintiff's reasonable access to, and an examUnited States for review as required by ination of, the books, papers, documents, law." and affairs of the old company, including all documentary information in connection therewith in the possession of defendants or of either of them.

It will be more satisfactory and conduce to a clear understanding of the precise ground upon which our decision must rest if the principal facts in the history of this controversy be stated.

On the 19th of May, 1903, upon due notice. the plaintiff's moved for an order directing the defendants to allow the plaintiffs, their counsel, and accountant, reasonable access to, and inspection of, the books, records, and documents of the old company, relating to its assets, liabilities, and business affairs. To that motion the defendants objected, and the motion was assigned for hearing on May 23d, 1903. On the day last named the parties appeared, the plaintiffs filed affidavits in support of their motion, and the defendants interposed a demurrer to the petition, as well as filed their several answers. The mo

On the 30th day of April, 1903, at a meeting of the stockholders of the Post Company, a resolution was adopted-all the stockholders except the owners of 48 shares concurring-by which the Columbia Finance & Trust Company was appointed liquidator of that corporation, with authority to conduct its business and affairs for the benefit of stockholders until its property could be sold and possession delivered to the purchaser in accordance with the statute of Kentucky. The liquidator was directed from the proceeds of sale to pay the debts of the corporation and demurrer were card in part, and tion, and to distribute any balance remaining among stockholders according to their legal rights. It took immediate possession of all the property, books, and papers of the Post Company.

On the 10th day of May, 1903, another corporation was organized under the laws of Kentucky. It is referred to in the record as the New Evening Post Company. To that company the liquidator on May 18th, 1903,

the further hearing of them was postponed until May 25th, 1903. On the latter day, the hearing not being concluded, the cause was postponed until the 30th of May, on which day it was, submitted on the pending motion of plaintiffs, on defendants' demurrer to the petition, and on a motion of the Columbia Finance & Trust Company, entered on that day, for leave to file an amended and supplemental answer. By an order entered

228

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ples of law and the plain rights of the judg-| der the order of the Federal court, whereby ment creditor demand that this court shall the state court was prevented from giving maintain its jurisdiction over it under these any *effectual relief to the parties before it, circumstances as certainly as it would have wag inconsistent with the relations which, abandoned it if the first seizure had been by upon principles of comity and right, always the state court. It results that the motion exist between courts having concurrent ju of the intervening petitioner must be over- risdiction over the same subject-matter. ruled and denied and intervening petition Peck v. Jenness, 7 How. 624, 12 L. ed. 846; dismissed." Taylor v. Carryl, 20 How. 596, 15 L. ed. 1032.

.

We are of opinion that the judgment of the circuit court dismissing the intervening petition of the Louisville Trust Company is not subject to review here upon direct appeal or writ of error to that court.

By the judiciary act of March 3d, 1891, chap. 517, 26 Stat. at L. 826 (U. S. Comp. Stat. 1901, p. 549), an appeal or a writ of error, as the one of the other mode may be proper, can be taken directly from a circuit court to this court in certain specified cases, among which is "any case in which the jurisdiction of the court is in issue;" and "in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision." § 5. In all cases, other than those specified in § 5 of that act, the circuit court of appeals is given appellate jurisdiction. § 6.

In all this there was nothing involving the jurisdiction of the circuit court as a Federal tribunal, whose jurisdiction is regulated by acts of Congress. The question of jurisdiction which the statute permits to be cer tified to this court directly must be one involving the jurisdiction of the circuit court as a Federal court, and not simply its general authority as a judicial tribunal to proceed in harmony with established rules of practice governing courts of concurrent jurisdiction as between each other.

We think this question was substantially so determined in Smith v. McKay, 161 U. S. 355, 357, 40 L. ed. 731, 16 Sup. Ct. Rep. 490. That was a suit in equity for an injunction to restrain the defendants from using certain patented machines until they had fully paid the fees they had agreed to pay to the patentee. The defendants moved to dismiss the bill upon the ground that there was a plain, adequate, and complete remedy at law,

thus raising only a question of equity jurisdiction. The motion to dismiss was denied. After final decree for the plaintiff, the case was brought directly to this court by appeal, and it was assigned for error that the circuit court erred in not dismissing the suit for want of jurisdiction. The position of the appellee in that case was that only questions of Federal jurisdiction could be brought directly here; and that if the circuit court had jurisdiction of the parties and of the matters in dispute, the fact that the remedy of the plaintiff was at law, rather than in equity, raised no question of ju risdiction within the meaning of the 5th section of the judiciary act of March 3d, 1891, under which the appeal was taken.

The question presented by the certificate of the circuit court is not one of jurisdiction, within the meaning of the 5th section of the act of 1891, and the jurisdiction of that court was not "in issue." There was diversity in the citizenship of the parties to this suit, instituted by Stuart R. Knott as a citizen of Missouri, and no question was raised, or could have been raised, as to the authority of the circuit court, as a Federal court, to take cognizance of it. The issue made by the intervening petition of the Louisville Trust Company did not involve the jurisdiction of that court, as a Federal tribunal, to appoint a receiver of the assets and property of the Evening Post Company. What the circuit court did in that respect was questioned by the Trust Company, on behalf of the state court, solely upon the ground that the taking by the Federal court of possession of the property and assets of the Post Company-after the state court, by The court observed that the question had the institution of the Haldeman suit, had never been directly decided by it, but that it acquired authority to appoint a receiver of arose in the World's Columbian Exposition such property and assets for administration | Case, 6 C. C. A. 58, 18 U. S. App. 42, 56 Fed. -was in violation of the rule recognized in 654, in which the circuit court, sitting in courts of equity, whether of Federal or state equity, granted an injunction to prevent the origin, that "where the jurisdiction of a opening of the Exposition Grounds to the court, and the right of a plaintiff to prose- public on Sunday. That case was taken by cute his suit in it, have once attached, that appeal to the circuit court of appeals for the right cannot be arrested or taken away by seventh circuit, and a motion was there proceedings in another court;" that as the made to dismiss the appeal. Chief Justice object of the suit in the state court could not Fuller, speaking for that court, said: The be accomplished without possession of the "appellees have submitted a motion to disproperty and assets of the Post Company, miss the appeal upon the ground that the the seizure of such property and assets un-jurisdiction of the circuit court was in is

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