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Opinion of the Court.

We cannot accept this view of the meaning and effect of the order in question. What was sought in the petitions was leave to intervene in a pending and undetermined cause, and that right alone was determined. The very terms used by the court, that the facts stated were "not sufficient to show that the petitioners, or either of them, have a legal right to intervene," shows that what was considered was the right to intervene. That right refused, the petitioners were left free to assert such other rights as they might possess in any other tribunal. That this was the view of Judge Sanborn himself is seen in the following language of his opinion:

"Whatever the petitioner's right or interest may be, it is nothing more than a contingent, speculative future possibility.. It is contingent, because it is conditioned upon the construction of a railroad. It is speculative, because it depends for its existence upon the question whether or not capitalists shall see sufficient profit in the construction of such a railroad to induce them to put in the necessary money for that purpose. It is future, because it has not yet come into existence, and it is possible because it may come into existence. Courts of equity are not accustomed, perhaps they have not the power, to adjudicate upon possible rights which are not in being and which are merely susceptible of coming into being at some unlimited time in the future."

The question was well considered by the Circuit Court of Appeals, and we quote and adopt its statement, as follows:

"When such an action is taken, that is to say, when leave to intervene in an equity case is asked and refused, the rule, so far as we are aware, is well settled that the order thus made denying leave to intervene is not regarded as a final determination of the merits of the claim on which the intervention is based, but leaves the petitioner at full liberty to assert his rights in any other appropriate form of proceeding. Such an order not only lacks the finality which is necessary to support an appeal, but it is usually said of it that it cannot be reviewed, because it merely involves an exercise of the discretionary powers of the trial court. It is doubtless true that cases may arise where the denial of a third party to intervene therein would be

acter.

Opinion of the Court.

a practical denial of certain relief to which the intervenor is fairly entitled, and which he can only obtain by an intervention. Cases of this sort are those where there is a fund in court undergoing administration to which a third party asserts some right which will be lost in the event that he is not allowed to intervene before the fund is dissipated. In such cases an order denying leave to intervene is not discretionary with the chancellor, and will generally furnish the basis for an appeal, since it finally disposes of the intervenor's claim by denying him all right to relief. The cases at bar, however, are not of that charThe petitioners were under no obligation to intervene in the litigation against the Union Pacific Railway Company to preserve their alleged right to form a junction with the road of that company when they should have completed their own road to a suitable junction point. The question which they sought to litigate in the pending litigation, could, we think, with more propriety and with less difficulty, have been litigated by an independent bill after they had completed, or were about completing, their line to a suitable junction point. Prior to that time the questions which they sought to raise by means of the intervening petitions were speculative questions, which the lower court, as we think, very properly, refused to consider or determine."

In Connor v. Peugh, 18 How. 394, it was said by Mr. Justice Grier, giving the opinion of the court:

"On the 5th of June, 1855, the tenant in possession came into court for the first time, and moved to set aside the judgment and execution issued thereon, and to be allowed to defend the suit for reasons set forth in her affidavit. The court refused to grant this motion, whereupon the said Mary Ann Connor prayed an appeal.'

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"The tenant in possession having neglected to appear and have herself made defendant and confess lease, entry and ouster the judgment was properly entered against the casual ejector. No one but a party to the suit can bring a writ of error. The tenant having neglected to have herself made such, cannot have a writ of error to the judgment against the casual ejector. The motion made afterwards to have the judgment set aside and for

Opinion of the Court.

leave to intervene was an application to the sound discretion of the court. To the action of the court on such a motion no appeal lies, nor is the subject of a bill of exceptions or a writ of error."

In Ex parte Cutting, 94 U. S. 14, it was held that an appeal does not lie from an order of the court below, denying a motion in a pending suit, to permit a person to intervene and become a party thereto. Guion v. Liverpool, London, &c., Ins. Co., 109 U. S. 173, is to the same effect.

Whether the contention of the petitioners that, under the legislation of Congress, they and railroad companies similarly situated had a right to connect with the road of the Union Pacific Railway Company, or shall have such a right with respect to that road in the hands of purchasers under the decree of foreclosure, at such places and upon such just and equitable terms as the President of the United States may prescribe, were not questions that, under the pleadings and evidence, were before the Circuit Court for its determination; and as its action, in denying the petitions to intervene, was an exercise of purely discretionary power, and not final in its character as respects such alleged right to connect, we think the Circuit Court of Appeals was right in holding that the appeals could not be entertained by that court, and its decree, dismissing the same, is accordingly

Affirmed.

MR. JUSTICE MCKENNA took no part in the decision of the cases.

Statement of the Case.

SARANAC LAND AND TIMBER COMPANY v. COMPTROLLER OF NEW YORK.

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

No. 94. Argued December 21, 22, 1899. - Decided April 9, 1900.

Turner v. New York, 168 U. S. 90, is affirmed and followed to the point that "the statute of New York of 1885, c. 448, providing that deeds from the comptroller of the State of lands in the forest preserve, sold for nonpayment of taxes, shall, after having been recorded for two years, and in any action brought more than six months after the act takes effect, be conclusive evidence that there was no irregularity in the assessment of the taxes, is a statute of limitations, and does not deprive the former owner of such lands of his property without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States," and is held to be decisive.

THIS is an action of ejectment brought to recover a tract of 7500 acres of forest land, known as the northwest quarter of township 24, Great Tract One, Macomb's Purchase, situated in Franklin County, in the Northern District of the State of New York.

The plaintiff deraigned title by various mesne conveyances from one Daniel McCormick, who became the grantee of the State of New York in 1798. The defendant claims through deeds executed to the State of New York in pursuance of sales for taxes.

The defendant also set up as a defence a six months' statute of limitations contained in chapter 448 of a law enacted in 1885 -certain statutes against champerty-the illegal organization of the plaintiff in error, and a former adjudication made on an application to cancel one of the tax sales under which the State claimed title.

The first sale upon which the title of the State is based was made in 1877 for unpaid taxes of 1866 to 1877, inclusive. A certificate was issued dated October 18, 1877, showing a sale to the State of the whole of the northwest quarter for the sum of $2756.40, and subsequently a deed in the usual form, and dated

Statement of the Case.

June 9, 1881, which was recorded in Franklin County clerk's office June 8, 1882.

The subsequent sales were made respectively in 1881 for the unpaid taxes of 1871 to 1876; in 1885 for those of 1877 to 1879; in 1890 for those of 1881 to 1885. At all of the sales except the first one the property was treated as already state property, and struck off to the State without giving opportunity for bids. Certificates and deeds were duly issued to the State in pursuance of the sale of 1881 and 1885 in due form, and duly recorded in the clerk's office of the proper county. A certificate alone was issued in pursuance of the sale of 1890.

The taxes for the years 1866 and 1867 were assessed against the whole quarter as one parcel. In the years 1868, 1869 and 1870 the whole quarter was not assessed, and so much of it as was assessed was placed upon the rolls in two parcels, and described as follows:

"Township 24, Great Tract One, Macomb's Purchase; N.W., excepting 1000 acres, lying in N.W. corner; also 1215 acres which is water, leaving 5285 acres.

"Macomb's Purchase, Great Tract One, township 24, 1000 acres, lying in the northwest corner of northwest quarter."

There was evidence tending to show that on the tract in controversy there were bodies of water, but no part of them was within the parcel of 1000 acres laid out in a square form in the northwest corner.

In December, 1894, the defendant caused a notice to be published once a week for three successive weeks in a newspaper published in Franklin County, of which the following is a copy:

"To whom it may concern:

"Notice is hereby given that the following is the list of wild, vacant forest lands located in the county of Franklin to which the State holds title, and that from and after three weeks from the 22d day of December, 1894, possession thereof will be deemed to be in the comptroller of this State, pursuant to the provisions of section 13 of chapter 711, Laws of 1893.

"WILLIAM J. MORGAN,

"Deputy Comptroller."

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