A bill in equity prayed for an injunction restraining the
defendant from trespassing on the land of the plaintiff and taking
mineral and ore therefrom, and that he account to the plaintiff for
the value of the ore already taken therefrom. After a hearing on
pleadings and proofs, the circuit court made a decree granting a
perpetual injunction, and ordering an account before a master.
that the decree was not final or appealable.
In equity. The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is a suit in equity, brought in the Circuit Court of the
United States for the Eastern District of Arkansas by Matt Martin
against the Keystone Manganese and Iron Company.
The bill alleges that the plaintiff, owning a piece of land in
Independence County, Arkansas, conveyed it, in June, 1853, with
other lands, to one Smith and his heirs forever, subject to the
condition that Martin retained to his heirs, representatives, and
"a perpetual and unlimited right in fee to all the stones and
minerals that may be in or upon said lands, and full and
unquestioned power and right to enter said lands for the purpose of
digging, quarrying, and mining upon said lands, with full power and
right of ingress and egress thereto and therefrom, and upon said
lands to remain and erect buildings thereon, and to use such timber
and other materials as may be convenient and proper for the
Page 132 U. S. 92
manufacture, and removal of such stones and minerals and
improvements as may be connected with the working of said stones
and minerals, it being well understood by the parties hereto that
the right of sale and all else is hereby conveyed to said Thomas C.
Smith, except the right to the stones and minerals on said lands,
which, with all needful and proper rights and privileges to obtain,
prepare for market, and remove the same, are expressly reserved
The deed was executed by Martin alone.
The bill further alleges that ever since said deed, the
plaintiff has been and now is in the possession of the mineral and
ore in and upon the land; that there are large and valuable
deposits of manganese therein, and that the defendant, in December,
1885, unlawfully entered upon said mineral deposits and began to
mine and remove therefrom the manganese, and had carried it away,
to the value of more than $5,000. It prays for an injunction
restraining the defendant from the commission of further trespasses
during the pendency of the suit; that an account be had of the
quantity and value of the ore taken by the defendant from the land,
and that it be decreed to account to the plaintiff therefor, and be
perpetually enjoined from further trespassing upon the mineral and
ore in the land.
The defendant put in an answer, setting up its right to mine and
remove the manganese ore by virtue of its having obtained such
right, for a specified period of time, from persons who had become
the owners of the land through a sale of it for the nonpayment of
taxes, and also setting up a statute of limitation.
After a replication, proofs were taken on both sides and the
circuit court decided in favor of the plaintiff, upon the ground
that, under the laws of Arkansas in force at the time the taxes
were assessed for the nonpayment of which the land was sold, it was
necessary that the mine, having been separated from the surface
soil, should be separately assessed, and it could not be sold for
taxes, except upon such an assessment, and that neither the mine
nor the mineral in it was in the present case assessed or sold. The
court made a decree
Page 132 U. S. 93
perpetually enjoining the defendant from entering upon or
removing the mineral or any part thereof from the land, and further
ordering that an account be taken of the quantity and value of the
mineral and ore already removed by the defendant from the land, and
that the defendant account to the plaintiff for its value, and
appointing a master to take said account, and to hear evidence, and
report the same to the court. From that decree the defendant has
appealed to this Court, and the case has been argued by the
appellee on its merits, and submitted on a printed brief by the
We think that the decree is not a final decree, and that this
Court has no jurisdiction of the appeal. The decree is not final
because it does not dispose of the entire controversy between the
parties. The bill prays only for an injunction and an account of
the quantity and value of the ore taken from the land by the
defendant. The injunction is granted, but the account remains to be
taken. The case is not one where nothing remains to be done by the
court below, except to execute ministerially its decree. In all
cases like the one before us, this Court has uniformly held that
the decree was not final and was not appealable.
The principal cases in which it has held that the decree was not
appealable because not final are the following: The
10 Wheat. 502; Perkins v.
6 How. 206; Pulliam v.
6 How. 209; Barnard v.
7 How. 650; Craighead
18 How. 199; Beebe v.
19 How. 283; Humiston
2 Wall. 106; Railroad
Co. v. Swasey,
23 Wall. 405; Bostwick v.
Brinkerhoff, 106 U. S. 3
Grant v. Phoenix Insurance Co., 106 U.
; Dainese v. Kendall, 119 U. S.
; Parsons v. Robinson, 122 U.
, while the decree has been held final for the
purposes of an appeal in Ray v. Law,
Cranch 179; Whiting v. Bank of the United
13 Pet. 6; Forgay v.
6 How. 201; Bronson v. Railroad
2 Black 528; St. Louis Iron Mt. &c.
Railroad v. Southern Express Co., 108 U. S.
; Ex Parte Norton, 108 U.
; Winthrop Iron Co. v. Meeker,
109 U. S. 180
In The Palmyra,
a prize case, the captors had filed a
Page 132 U. S. 94
the district court, and that court had dismissed it, without
costs and damages against the captors. The circuit court affirmed
the decree of restitution, with costs and damages. The libellants
having appealed to this Court, the appeal was dismissed, on the
ground that the decree of the circuit court was not final, Chief
Justice Marshall saying:
"The damages remain undisposed of, and an appeal may still lie
upon that part of the decree awarding damages. The whole cause is
not therefore finally determined in the circuit court, and we are
of opinion that the cause cannot be divided so as to bring up
successively distinct parts of it."
In Perkins v. Fourniquet,
the circuit court decreed
that the plaintiffs were entitled to two-sevenths of certain
property, and referred the matter to a master to take and report an
account of it, and reserved all other matters in controversy until
the coming in of the master's report. It was held that that was not
an appealable decree, Chief Justice Taney saying:
"The appellant is not injured by denying him an appeal in this
stage of the proceedings, because these interlocutory orders and
decrees remain under the control of the circuit court, and subject
to their revision, until the master's report comes in, and is
finally acted upon by the court, and the whole of the matters in
controversy between the parties disposed of by a final decree. And,
upon an appeal from that decree, every matter in dispute will be
open to the parties in this Court, and may all be heard and decided
at the same time."
In Pulliam v. Christian,
a decree of the circuit court
set aside a deed made by a bankrupt before his bankruptcy, and
directed the trustees under that deed to deliver over to the
assignee in bankruptcy all the property remaining undisposed of in
their hands, but without deciding how far the trustees might be
liable to the assignee for the proceeds of sales previously made
and paid away to the creditors, and directed an account to be taken
of these last-mentioned sums, in order to a final decree. It was
held that the decree was not appealable, Mr. Justice McLean saying:
"There is no sale or change of the property ordered which can
operate injuriously to the parties."
Page 132 U. S. 95
In Barnard v. Gibson,
the suit was one for the
infringement of letters patent. By the decree of the circuit court,
a perpetual injunction was awarded, and it was referred to a master
to ascertain and report the damages which the plaintiff had
sustained. It was held that the decree was not appealable. The
decree in that case was in all substantial particulars like the
decree in the present case.
In Craighead v. Wilson,
the decree of the circuit court
ascertained the heirship of the plaintiffs and their relative
rights in a succession, but referred it to a master to state
accounts between the plaintiffs and defendants, and ascertain how
much property remained in the hands of the latter, and how much had
been sold, with the prices, and to ascertain what might be due from
either of the defendants to the plaintiffs. It was held that the
decree was not appealable.
In Beebe v. Russell,
the bill prayed that the
defendants might be ordered to convey to the plaintiff certain
pieces of property, which it was alleged they fraudulently withheld
from him, and account for the rents and profits. The circuit court
decreed that the defendants should execute certain conveyances and
surrender possession, and then referred the matter to a master to
take an account of the rents and profits, giving instructions in
regard to the manner of taking it. This Court stated that the
object of the statute in regard to appeals was to prevent a case
from coming to this Court from the courts below, in which the whole
controversy had not been determined finally, and that such final
determination might be had in this Court, and that whenever the
whole controversy had been determined by the circuit court, and
ministerial duties only were to be performed, although an amount
due remained to be ascertained, the decree was final. The decree in
that case was held not to be appealable.
In Humiston v. Stainthorp,
which was a patent suit, the
decree was like that in Barnard v. Gibson,
and the appeal
In Railroad Co. v. Swasey,
it was held that a decree of
foreclosure and sale was not final, in the sense which allowed an
appeal from it, so long as the amount due upon the debt
Page 132 U. S. 96
had not been determined, and the property to be sold had not
been ascertained and defined.
In Bostwick v. Brinkerhoff,
Chief Justice Waite stated
the principle as follows:
"The rule is well settled and of longstanding that a judgment or
decree, to be final, within the meaning of that term as used in the
acts of Congress giving this Court jurisdiction on appeals and
writs of error, must terminate the litigation between the parties
on the merits of the case, so that, if there should be an
affirmance here, the court below would have nothing to do but to
execute the judgment or decree it had already rendered."
This view was repeated in Grant v. Phoenix Co.,
an appeal by the defendant from a decree in a foreclosure suit was
dismissed, the decree neither finding the amount due nor ordering a
sale of the mortgaged property, although it overruled the defense,
declared the plaintiff to be the holder of the mortgage, and, in
order to ascertain the amount due to it and other lien creditors
and for taxes, referred the case to a master and appointed a
receiver to take charge of the property.
In Dainese v. Kendall,
the principle was again asserted
"a decree, to be final for the purposes of an appeal, must leave
the case in such a condition that if there be an affirmance here
the court below will have nothing to do but to execute the decree
it has already entered."
The same view was maintained in Parsons v.
It remains to see the principle upon which this Court has acted
in holding decrees to be appealable as final decrees.
In Ray v. Law,
it was held that a decree for a sale
under a mortgage was an appealable decree. Of course, this involves
the proposition that the court below had ascertained and fixed the
amount due under the mortgage.
In Whiting v. Bank of United States,
this Court held
that a decree of foreclosure of a mortgage and for a sale was a
final decree, and that it was not necessary to the finality of it
that the sale should have taken place and been confirmed. The court
said that if the sale had been completed under the decree, the
title of the purchaser would not have been overthrown or
invalidated even by a reversal of the decree; that
Page 132 U. S. 97
consequently the title of the defendants to the land would have
been extinguished, and their redress upon a reversal would have
been of a different kind from that of a restitution of the land
sold, and that, under a decree of foreclosure and sale, the
ulterior proceedings were but a mode of executing such decree.
A leading case where this Court held the decree below to be
final was that of Forgay v. Conrad.
The decree in that
case ordered that certain deeds be set aside as fraudulent and
void; that certain lands and slaves be delivered up to the
plaintiff; that one of the defendants pay a certain sum of money to
the plaintiff; that the plaintiff have execution for those several
matters, and that the master take an account of the profits of the
lands and slaves, and an account of certain money and notes, and
then concluded as follows:
"And so much of the said bill as contains or relates to matters
hereby referred to the master for a report is retained for further
decree in the premises, and so much of the said bill as is not now,
nor has been heretofore, adjudged and decreed upon, and which is
not above retained for the purposes aforesaid, be dismissed without
prejudice, and that the said defendants do pay the costs."
It was held that that decree was a final decree, and appealable,
Chief Justice Taney saying:
"And when the decree decides the right to the property in
contest, and directs it to be delivered up by the defendant to the
complainant, or directs it to be sold, or directs the defendant to
pay a certain sum of money to the complainant, and the complainant
is entitled to have such decree carried immediately into execution,
the decree must be regarded as a final one to that extent, and
authorizes an appeal 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."
In Bronson v. Railroad Co.,
it was held that a decree
for the sale of mortgaged premises was a final decree, settling the
merits of the controversy, and that the subsequent proceedings were
simply a means of executing the decree. The same principle was
applied in St. Louis, Iron Mountain &
Page 132 U. S. 98
Southern Railroad Co. v. Southern Exp. Co.
Ex Parte Norton.
In Winthrop Iron Co. v. Meeker,
it was held that where
a decree decides the right to the property in contest, and the
party is immediately entitled to have it carried into execution, it
is a final decree although the court below retains possession of so
much of the bill as may be necessary for adjusting accounts between
the parties, the Court remarking that such a case was different
from a suit by a patentee to establish his patent and recover for
infringement because there the money recovery was a part of the
subject matter of the suit.
Within the principles established by the foregoing cases, the
decree now before us was not a final decree, and the appeal must