Village of Mackinaw City v. United States

SEVERENS, Circuit Judge, having made the foregoing statement, delivered the opinion of the court. It is a familiar rule that the appellate jurisdiction of the Circuit Courts of Appeals of the United States must be exercised upon an appeal or writ of error according to the nature of the proceeding in the court below; that is to say, whether it was a proceeding in equity or at the common law, or was essentially of the one or the other character. This court has on several occasions been required to apply this rule, and has been compelled to decline jurisdiction because of the mistake of counsel in the adoption of the wrong remedy — a writ of error in a suit in equity, or an appeal in a proceeding at the common law. Among such cases, see Muhlenberg Co. v. Dyer, 13 C. C. A. 64, 65 Fed. 634; U. S. v. Diamond Match Co. (C. C. A.) 115 Fed. 288. Now, while a proceeding to condemn land for a public use is somewhat anomalous, it is clear that it in no sense partakes of the qualities of equitable jurisdiction; nor does it rest upon any ground peculiar thereto. It happens that the first case in which the authority of the United States to condemn land for public uses was vindicated by the Supreme Court was Kohl v. U. S., 91 U. S. 367, 23 L. Ed. 449, which was a proceeding to condemn the land whereon stands the building in which this court is now holding its sessions. The case came into the Supreme Court by writ of error, and the proceedings in the court below were sustained upon the ground that they constituted a suit at common law, within the meaning of the judiciary act of 1789. It is true, no question was raised in that case in respect to the method of obtaining a review in the appellate court, but the ground on which the jurisdiction of the court below was sustained clearly implies that a writ of error is the only remedy for review. The case of Luxton v. North River Bridge Co., 147 U. S. 337, 13 Sup. Ct. 356, 37 L. Ed. 194. confirms this view. That case went up on writ of error. The writ was dismissed, not because it was not the proper remedy, but because it was prematurely sued out — the judgment below not being final. In High Bridge Lumber Co. v. U. S., 16 C. C. A. 460, 69 Fed. 320, a case brought into this court by writ of error to the [254] District Court for the district of Kentucky, Judge Burton, in delivering the opinion of the court, explained that the right of eminent domain is a common-law right, and the remedy for its enforcement is a common-law action. We are clearly of opinion that we cannot review the proceedings of the District Court on this appeal. The appeal is accordingly dismissed.