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Opinion of the Court.

court over the property sold-took place when that property was in the exclusive custody and control of the District Court: and, by reason of its prosecution to a sale, was an invasion of the jurisdiction of that court. No stress is laid on the fact, that notice of the proceeding, by affixing a copy of the summons upon the building, which was required by the statute, could only be made by an actual entry by the sheriff upon the property, to that extent disturbing the possession of the marshal, because the same result, in our opinion, would have followed, if no such, notice had been required or given. The substantial violation of the jurisdiction of the District Court consisted, in the control over the property in its possession, assumed and asserted, in commencing the proceedings to enforce against it the lien claimed by the plaintiffs in those actions, prosecuting them to judgment and consummating them by a sale. The principle applied in Wiswall v. Sampson, ubi supra, must be regarded as firmly established in the decisions of this court. It has been often approved and confirmed. Peale v. Phipps, 14 How. 368; Ilagan v. Lucas, 10 Pet. 400; Williams v. Benedict, 8 How. 107; Pulliam v. Osborne, 17 How. 471; Taylor v. Carryl, 20 How. 583; Yonley v. Lavender, 21 Wall. 276; People's Bank v. Calhoun, 102 U. S. 256; Barton v. Barbour, 104 U. S. 126; Covell v. Heyman, 111 U.

S. 176.

But it is to be understood, as a qualification of what has been said, that we do not mean to decide that the plaintiffs in the actions in the State court might not, without prejudice to the jurisdiction of the District Court, commence their actions, so far as that was a step required by the mechanics' lien law of New Jersey, for the mere purpose of fixing and preserving their rights to a lien, provided, always, they did not prosecute their actions to a sale and disposition of the property, which, by relation, would have the effect of avoiding the jurisdiction of the District Court under its seizure. That was the course, under similar circumstances, adopted and sanctioned by the Supreme Judicial Court of Massachusetts in Clifton v. Foster, 103 Mass. 233, where a petition to enforce a mechanic's lien, which, by statute, it was necessary to file within a fixed time in order to

Opinion of the Court.

preserve it, was permitted to be filed after the property, by the bankruptcy of the owner, had passed into the custody of the District Court, but all further proceedings thereon were stayed to await the action of that court in the bankruptcy proceedings, on the ground that such seasonable filing was necessary to keep the lien alive, and that, without further proceedings it could not be construed as an encroachment upon the jurisdiction of the bankruptcy court. The distinction seems to us reasonable and just, and is supported by the decisions in Williams v. Benedict, 8 How. 107, and Yonley v. Lavender, 21 Wall. 276. In conformity with it, we refrain from pronouncing the proceeding in the State court of New Jersey invalid, so far as they do not affect the legal title of the purchaser at the marshal's sale to the premises in controversy. We decide, not that they are invalid for the purpose of declaring and establishing the lien, but that they are not good for the purpose of enforcing it, as was attempted, by a sale and conveyance of the premises in controversy.

This view, though decisive of the case and resulting in the affirmance of the judgment of the Circuit Court, proceeds upon assumptions the most favorable which can be indulged to the plaintiff in error. It is merely an application of the familiar and necessary rule, so often applied, which governs the relation of courts of concurrent jurisdiction, where, as is the case here, it concerns those of a State and of the United States, constituted by the authority of distinct governments, though exercising jurisdiction over the same territory. That rule has no reference to the supremacy of one tribunal over the other, nor to the superiority in rank of the respective claims, in behalf of which the conflicting jurisdictions are invoked. It simply requires, as a matter of necessity, and, therefore, of comity, that when the object of the action requires the control and dominion of the property involved in the litigation, that court which first acquires possession, or that dominion which is equivalent, draws to itself the exclusive right to dispose of it, for the purposes of its jurisdiction. It was in accordance with this principle that in Pulliam v. Osborne, 17 How. 471, this court confirmed the legal title of land to a purchaser under an execution upon a judg

VOL. CXII-20

Syllabus.

ment rendered in a State court, because first actually levied as against one claiming under an execution out of the District Court of the United States, which had a priority of lien by reason of having been first issued.

We, therefore, now determine that the plaintiff in error does not hold the legal title of the premises in controversy, as against the defendant in error, claiming under the marshal's sale and the decree of the District Court; and we decide nothing beyond that. The other questions, argued at the bar-whether the forfeiture decreed by the District Court operated to transfer the whole title of the premises against all claimants; whether, if it operated only upon the interest of the owner at the time the alleged offences were committed, subject to all valid liens then existing, nevertheless, those liens were transferred to the proceeds of the sale, and the claimants were bound at their peril to intervene in their own behalf in that proceeding; or, whether the sale, as made, passed the legal title, subject to all existing liens, including those sought ineffectually to be enforced by the proceedings under which the plaintiff in error claims; and whether, in that event, these may be enforced against the land or present owners, and if so, in what mode-we have passed by without considering, as not necessary to the decision. of the case.

The judgment of the Circuit Court is affirmed.

EAST TENNESSEE, VIRGINIA & GEORGIA RAILROAD CO. v. SOUTHERN TELEGRAPII COMPANY.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA.

Submitted November 10, 1884.-Decided November 24, 1884.

Hilton v. Dickinson, 108 U. S. 165, again affirmed. The Circuit Courts of the United States, taking jurisdiction of a proceeding to enforce a remedy given by a State statute, can act only in accordance with the statute creating the remedy, and are possessed only of the powers con

Statement of Facts.

ferred by it on the State courts: and this court will modify a supersedeas granted by a Circuit Court of the United States in such a proceeding, in order to make it conform to the powers conferred upon State courts in that respect.

This was a motion to dismiss a writ of error for want of jurisdiction; or, if that should be denied, to modify the supersedeas.

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

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Statement of Facts.

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causes, and the amount thereof for each parcel shall constitute the compensation to be paid therefor, as hereinafter directed, before the appropriation thereof shall be made by the petitioner." Sec. 3589. It is specially made the duty of the court to speed the cause. Sec. 3590. "An appeal to correct errors of law only may be had, if applied for within three months after the assessment, to either the Circuit Court of the same county or the Supreme Court; . . but no appeal shall, during the pendency of it, prevent or hinder the petitioner from occupying the land involved therein, and proceeding to work thereon; but the petitioner, before doing so, shall pay into the court, for the person or persons entitled thereto, the amount of damages and compensation by the jury therefor assessed." Sec. 3593. The amount assessed may be paid to the person entitled thereto or to the clerk of the court. Sec. 3594.

The Southern Telegraph Company, a New York corporation, being desirous of erecting a line of telegraph from Montgomery, Alabama, by way of Selma to Meridian, in the State of Mississippi, filed in the Probate Court of Montgomery County, Alabama, an application for the proper proceedings under the Code to enable it to acquire the right of way for that purpose along a line of railroad in Alabama operated by the East Tennessee, Virginia and Georgia Railroad Company from Selma to the Mississippi State line. Upon this application being made the necessary notices were served on the railroad company to appear on the 10th of April, 1884, and a jury was summoned for an inquiry into the amount of compensation to be paid the company for the appropriation sought. On the day named the railroad company intervened for its interest and showed cause against the appropriation, and averred in its intervention that the value of the property to be appropriated was $12,000, and that this was the proper measure of the compensation and damages it was entitled to if the prayer of the petition should be allowed. On the same day the railroad company filed in the Probate Court a petition for the removal of the cause to the Circuit Court of the United States for the Middle District of Alabama,

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