Dissenting Opinion: Field, J.

their possession, without showing a title in the government. They must show in that way their right to the possession. under that title. The case of United States v. Lee, 106 U. S. 196, is sufficient authority on this point. Referring to that case, in In re Ayers, 123 U. S. 443, 501, this court said: "In that case the plaintiffs had been wrongfully dispossessed of their real estate by defendants, claiming to act under the authority of the United States. That authority could exist only as it was conferred by law, and as they were unable to show any lawful authority under the United States, it was held that there was nothing to prevent the judgment of the court against them as individuals, for the individual wrong and trespass." See also Cunningham v. Macon & Brunswick Railroad, 109 U. S. 446, 452. Establishing the title of the government and thus showing their own possession under the government to be rightful, the action will be defeated. But the officers or agents cannot plead the statute of limitations in their own behalf if they hold under the United States, and in maintaining a different doctrine there is, in my opinion, a plain error in the decision of the court. The action of ejectment, or of trespass to try title, necessarily implies the wrongful possession of the defendant. He can only defeat that position by showing title or ownership in the party under whom he holds or in himself. But how can he show title or ownership in himself? If he has a title by deed which he can trace back beyond the claim of the plaintiff he can do so; but if he relies upon the statute he must show adverse possession of the property in himself for the period prescribed. To render his possession adverse it must be accompanied by a claim of title or ownership in himself as against the whole world. It must be exclusive and continuous, and not referable to any other claimant. If the defendant admits that any other person, or that the government, has the title, or owns the property at any time within the period of prescription, his adverse possession, on which alone he can rely, fails, and his claim of right to the property is defeated. This doctrine is sustained by the whole current of authorities in the English and American courts, as will be seen by reference to the

Dissenting Opinion: Field, J.

treatise on the statute of limitations by Angell, and also to the one by Buswell, under the chapters on "Adverse Possession," where the adjudged cases are cited. See also Sedgwick and Wait on Trial of Title to Land, sec. 729 to sec. 740; and Doswell v. De la Lanza, 20 How. 29; Melvin v. Merrimack Proprietors, 5 Met. (Mass.) 15; Ward v. Bartholomew, 6 Pick. 408; and Adams v. Burke, 3 Sawyer, 415, 420.

The statute of Texas prescribing the limitations of actions for the recovery of real property is not materially different, except in the periods designated, from the statutes of limitations of other States. It provides that every suit to recover real estate "as against any person in peaceable and adverse possession thereof, under title or color of title, shall be instituted within three years next after the cause of action shall have accrued, and not afterwards." "Peaceable possession" is described as "such as is continuous, and not interrupted by adverse suit to recover the estate." Adverse possession is defined as being "an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another."

If the defendants cannot show title in the party under whom they hold, or in themselves, they are trespassers against the real owner, whether they claim under the government or a private party, and the doctrine that if they hold under the government, the title to which is not established, they can be allowed to set up adverse possession in themselves, or, in other words, to plead the statute of limitations, when they expressly disavow any claim or title to the property, upon the assertion of which alone such adverse possession can be maintained or the statute made available, is, in my judgment, in conflict with well settled principles, and the whole course of judicial decisions in England, and in every State of the Union. The defendants, by their own admissions, are not in a position to set up any such defence.

Statement of the Case.

In re HABERMAN MANUFACTURING COMPANY, Petitioner.

ORIGINAL.

No number. Submitted January 30, 1893. —- Decided February 6, 1893.

Under § 7 of the act of March 3, 1891, c. 517, 26 Stat. 826, 828, which provides for an appeal to the Circuit Court of Appeals from an interlocutory order or decree granting or continuing an injunction, on a hearing in equity, the granting of a stay of the operation of the injunction during the pendency of the appeal, by the court which granted or continued it, is not a matter of right, but is a matter of discretion.

Such discretion of that court cannot be controlled by a writ of mandamus from this court.

On the 5th of January, 1893, an interlocutory decree was made, on final hearing, in a suit in equity in the Circuit Court of the United States for the Southern District of New York, brought against the Haberman Manufacturing Company, for the infringement of a patent for improvements in the manufacture of enamelled iron ware. The decree held that the patent was valid and had been infringed by the defendant, and awarded a recovery of profits and damages, to be ascer tained on a reference to a master, and also a perpetual injunction. The defendant perfected an appeal to the Circuit Court of Appeals for the Second Circuit from such interlocutory decree, and, on the 20th of January, 1893, applied to the Circuit Court for a stay of proceedings in that court pending the appeal, including a stay of the injunction, and for the acceptance and approval of a supersedeas bond for that purpose, which bond, in any amount satisfactory to the court, it offered to file. But the court denied the application. The defendant now applies to this court for leave to file a petition that a writ of mandamus issue to the judges of the Circuit Court commanding them to approve and direct the filing of a supersedeas bond in such amount as that court shall fix, to supersede the injunction, and to enter an order vacating, sus

Argument for Petitioner.

pending, or superseding the injunction, which was issued on January 5, 1893, and subsequently served.

Mr. Charles E. Mitchell and Mr. Robert N. Kenyon for petitioner. Mr. W. H. Kenyon was on the brief.

The petition which this motion asks leave to file involves the question whether upon an appeal in a patent suit taken to the United States Circuit Court of Appeals pursuant to the seventh section of the act of Congress, of March 3, 1891, 26 Stat. 826, 828, c. 517, from an interlocutory decree granting an injunction, the defendant and appellant is entitled as a matter of right to a supersedeas of the injunction pending the appeal. That section is as follows: "Sec. 7. That where, upon a hearing in equity in a District Court, or in an existing Circuit Court, an injunction shall be granted or continued by an interlocutory order or decree, in a cause in which an appeal from a final decree, may be taken under the provisions of this act to the Circuit Court of Appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction to the Circuit Court of Appeals: Provided, That the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court during the pendency of such appeal."

The suit against this petitioner in the Circuit Court of the United States for the Southern District of New York is one for the infringement of a patent, and is therefore "a cause in which an appeal from a final decree may be taken to the Circuit Court of Appeals."

Section 7 gives to a defendant taking an appeal under that section from an interlocutory order or decree granting an injunction, an absolute right to a supersedeas of the injunction pending the appeal, upon the filing of a bond satisfactory to the court.

This is its plain meaning, as has been decided by Judge Jackson, Circuit Judge for the Fifth Circuit, in the case of Pasteur v. Blount, 51 Fed. Rep. 610.

Argument for Petitioner.

Judge Jackson's opinion is supported and enforced by a consideration of the language of this section, the evident purpose of its enactment, and the previous practice and legislation which it was designed to supersede.

That it was the intention of Congress that the injunction should be stayed pending the appeal, is shown by the particular form of expression adopted in this section. The section says that "the proceedings in other respects in the court below shall not be stayed," thereby necessarily meaning "that the proceedings in some respect shall be stayed."

The phrase or expression," the proceedings shall be stayed" or "the stay of proceedings " is shown by an examination of the statutes and cases to have a recognized and well-established meaning. It has always been used in connection with appeals and writs of error to refer to the suspension of execution under a judgment or the suspension of the enforcement of a decree. The mere taking of an appeal and the transferring of a case by such appeal from a lower to a higher court has never been termed a stay of proceedings. Kitchen v. Randolph, 93 U. S. 68; Hogan v. Ross, 11 How. 294.

The conditions and regulations prescribed by section 7 in reference to an appeal from an interlocutory order or decree, also confirm the view herein contended for, that the appeal was to operate as a stay of the injunction.

The statute provides that such appeal must be taken within thirty days. This part of the statute has no special meaning unless the statute intended that pending the appeal the injunction should be stayed. This clause was certainly not intended for the benefit of the defendant. It was a restriction upon the defendant's rights. It must then have been intended as a benefit to the complainant, to save the complainant from some hardship or injury that would otherwise result to it. The only hardship or injury that could result to a complainant from the postponement of the appeal would be in case the injunction was suspended during the appeal. If the injunction was not suspended, the delaying of the appeal would work no hardship to the complainant but, on the contrary, would benefit the complainant by giving him the monopoly of the business