Opinion of the Court.

machine of the defendants has divergent grooves or serrations formed on the surface of the friction table. We are of opinion that it is not a sound conclusion that the corrugations on the friction beam in the defendants' machine perform the office of Coupe's stretcher-bar K, interposed between the friction beam and the roller H. While it is true that the corrugations prevent the hide from wrinkling, yet, as there is not in the defendants' machine any lateral stretch, it is not true that such corrugations keep the hide to its lateral stretch. There is no lateral stretch which is kept from going back by such corrugations. Any office of the corrugations to keep a lateral stretch from going back would be unnecessary in the defendants' machine, because the hide is to be taken out and reattached at new points, and stretched longitudinally in the very direction in which the previous transverse stretching, if it existed, would have been performed.

It is shown by the evidence that the hide does not, in the defendants' machine, enter the grooves or serrations to any appreciable extent; that they are not deep enough to have any such effect; that there is no indication on the upper surface of the hide that its lower surface enters into the serrations; that there is no indication that the under surface of the hide is not supported by a smooth bar or table; and that this is shown by the fact that the upper surface of the hide appears smooth where it lies over the grooves or serrations. It is not shown by the evidence for the plaintiffs that the grooves are not too shallow to have any effect in giving lateral movement to the hide, or that the hide would not show on the upper surface whether the under surface was engaged in the grooves, or that there was any appearance on the upper surface indicating any such engagement.

Irrespectively of this, the combination of the first claim of the patent is one in which the stretcher-bar is interposed between the friction table or beam and the roller. In the defendants' machine, the organization is different.

We are of opinion that the first claim is not infringed, because the defendants do not have the stretcher-bar K, or any substitute for it, performing the same operation. They

Opinion of the Court.

get their transverse stretch by taking out the hide and grasping it at new points, and stretching it between those points. The corrugations only keep the hide from wrinkling, an operation which the patent says is performed before the stretcher-bar acts upon the hide. It does not appear that, as the defendants' machine is used, there is any lateral stretching of the hide simultaneously with its longitudinal stretching. The corrugations are not combined with the friction beam and the roller, as the convex stretcher-bar of the patent is; for that is interposed between the friction beam and the roller, and the description in the specification is that the hide, after being longitudinally stretched on the friction beam, passes to and is stretched transversely by the stretcher-bar; whereas, in the defendants' machine, the corrugations are integral with the friction beam. It would not be practicable to make the convex stretcher-bar of the patent integral with the friction beam. The specification describes the stretcher-bar as having a lateral movement relatively to the friction beam; and this excludes the idea of the stretcher-bar being integral with the friction beam.

The defendants do not stretch the hide longitudinally and transversely at the same time, but only stretch it longitudinally in different successive directions across the hide.

The third claim is not infringed, because the described method of operation of the combination of the first claim is not performed by the defendants.

The decree of the Circuit Court is reversed, and the case is remanded to that court with a direction to dismiss the bill with costs.

Opinion of the Court.

LUXTON v. NORTH RIVER BRIDGE COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY.

No. 1106. Submitted December 22, 1892. — Decided January 16, 1893.

An order of the Circuit Court of the United States, appointing commissioners to assess damages for land in New Jersey taken by the North River Bridge Company for the approaches to a bridge across the North or Hudson River between New York and New Jersey, under the act of July 11, 1890, c. 669, § 4, is not a final judgment, upon which a writ of error will lie.

THE case is stated in the opinion.

Mr. Gilbert Collins for plaintiff in error.

Mr. Joseph D. Bedle for defendant in error.

MR. JUSTICE GRAY delivered the opinion of the court.

This is a writ of error to reverse an order made by the Circuit Court of the United States for the District of New Jersey, on the petition of the North River Bridge Company, appointing commissioners to assess damages for the appropriation and condemnation of land of the plaintiff in error in the city of Hoboken, county of Hudson and State of New Jersey, for the approaches to a bridge across the North or Hudson River between the States of New York and New Jersey, under the act of Congress of July 11, 1890, c. 669, (26 Stat. 268,) entitled "An act to incorporate the North River Bridge Company, and to authorize the construction of a bridge and approaches at New York City, across the Hudson River, to regulate commerce in and over such bridge between the States of New York and New Jersey, and to establish such bridge a military and post road," the constitutionality of which, as authorizing such appropriation and condemnation, is denied by the plaintiff in error.

VOL. CXLVII-22

Opinion of the Court.

At the threshold of the case lies the inquiry whether the order of the Circuit Court, appointing commissioners to assess damages for the taking by the petitioner of the respondent's land, is a final judgment upon which a writ of error will lie. This depends upon the terms and effect of the act of incorporation of the petitioner by the Congress of the United States, taken in connection with the general railroad law of the State of New Jersey.

By section 4 of the act incorporating the petitioner, Congress has enacted that the compensation for property, real or personal, appropriated and condemned under the act, shall "be ascertained according to the laws of the State within which the same is located;" that "in case any litigation arises out of the construction, use or operation of said bridge or approaches thereto and railroads thereon, or for the condemnation or the appropriation of property in connection therewith, under this act, the cause so arising shall be heard and tried before the Circuit Court of the United States for the judicial district in which the bridge or one of the approaches is located;" and that "applications for condemnation or appropriation of property shall be made in the Circuit Court of the United States for the district in which such property is situated, upon the petition of said company, and the hearing and trial of all other proceedings thereon shall conform as nearly as may be to the practice in the courts of the State in which such district is situated in the case of condemnation or appropriation of property for railroads." 26 Stat. 269, 270.

This direction that the proceedings in the Circuit Court of the United States shall "conform as nearly as may be to the practice in the courts of the State" must, of course, like the corresponding direction as to practice, pleadings and procedure in section 914 of the Revised Statutes, give way whenever to adopt the state practice would be inconsistent with the terms, defeat the purpose, or impair the effect, of any legislation of Congress. Indianapolis & St. Louis Railroad v. Horst, 93 U. S. 291; Chateaugay Co., petitioner, 128 U. S. 544; Southern Pacific Co. v. Denton, 146 U. S. 202.

By the general railroad law of New Jersey, any railroad

Opinion of the Court.

corporation, which cannot agree with the owner of land required for the construction of its road, is to present an application, containing a description of the land, to a justice of the Supreme Court of the State for the appointment of three disinterested, impartial and judicious freeholders, residents in the county in which the land lies, to examine and appraise the land and to assess the damages; the commissioners so appointed are to make a report in writing of their assessment, and to file it, together with the description of the land, in the clerk's office of the county, to remain of record therein; either party aggrieved by the decision of the commissioners may appeal to the circuit court for the county, and there have the damages ascertained by the verdict of a jury, upon which judgment is to be entered; and the report so recorded, with proof of payment or tender by the corporation of the damages assessed by the commissioners, or found by the jury on appeal from their decision, is to be plenary evidence of the company's right to the land. New Jersey Laws of 1873, c. 413, §§ 12, 13, pp. 94, 95; Rev. Stat. of 1877, pp. 928, 929.

The description and report, so filed and recorded, have been declared by the Supreme Court of the State to be equivalent to a deed from the owner. Hetfield v. Central Railroad, 5 Dutcher, (29 N. J. Law,) 571, 574; Taylor v. New York & Long Branch Railroad, 9 Vroom, (38 N. J. Law,) 28.

By the practice in the courts of New Jersey, either the appointment of commissioners, or their award of damages, may be reviewed by the Supreme Court of the State on writ of certiorari; matters affecting the validity or the regularity of their appointment may be considered on certiorari to the justice appointing them, after the order of appointment and before they have acted; and questions of law affecting the power or the action of the commissioners may be determined on certiorari to them, after their award has been filed and not appealed from. Morris & Essex Railroad v. Hudson Tunnel Railroad, 9 Vroom, (38 N. J. Law,) 548; Lehigh Valley Railroad v. Dover & Rockaway Railroad, 14 Vroom, (43 N. J. Law,) 528; Central Railroad v. Hudson Terminal Railway,