The order then provided for the appointment of three engineers, one to be nominated by each of the parties, and one to be selected by the court, who were required to ascertain and report to the court to what extent, in the construction of two roads from Cañon City to the twentieth mile post, must the two companies occupy the same track; whether the Grand Cañon of the Arkansas was broad enough to enable both companies to proceed without interference with each other in their respective roads, or if one be already constructed, then whether such constructed line will interfere with or render impracticable the construction of a second line; whether in the narrow portions of the cañon there is any place where such a course was impracticable, and if so, whether any road-bed or railroad has been constructed in such place or places, and the cost and reasonable value of same; whether, if two roads shall be built on the Ar-kansas River from Cañon City to the twentieth mile post, to what extent should they be located on opposite sides of the river, and the relative cost thereof; what has been done by the Cañon City Company or the Pueblo and Arkansas Valley Railroad Company towards constructing a railroad from Cañon City to the twentieth mile post, and what is its value and its location, with reference to the Arkansas, its defiles and cañons, and what part of the line so constructed is on the public domain, what part on lands owned by individuals or corporations, and what is the value of each part separately. Upon a subsequent day of the same term the Denver Company, by petition, suggested that the decree rendered was not full and complete, and that the court had not awarded all the relief to which it was entitled under the opinion and mandate of this court. The Circuit Court, however, held that further and final decree should be deferred until the matters set forth in the decree of July 14, 1879, were determined. Thus stood the case, in its essential features, when the petition for mandamus was filed in this court. Subsequently, the attention of the court was called to the final decree rendered in the Circuit Court in January, 1880. After a careful consideration of all that has been said in support of the present application, we are of opinion that a mandamus should be denied. Our former opinion discloses the fact that many matters growing out of this litigation were necessarily left undisposed of, and were remitted to the Circuit Court for such determination as the rights and equities of the parties required under the circumstances existing at the time its action was invoked. We took care to say that nothing determined apon the issues presented upon the original appeals would affect the question as to whether the Atchison, Topeka, and Santa Fé Railroad Company, or the Pueblo and Arkansas Valley Rail road Company, had, subsequently to the decree of July, 1878, become, by valid contract, the owner of the property, or entitled to the control of the rights, affairs, and suits of the Denver Company. That question, in distinct terms, was left open for subsequent adjudication, in a court of original jurisdiction, upon proper pleadings and by appropriate proceedings. We expressly limited our decision to a determination of the rights of the parties as they existed when the decrees of July, 1878, were rendered, and as manifested in the records then before us. Whether, therefore, the supplemental bills, filed upon the return of the causes, raised, in proper form, the question as to the right of the Atchison, Topeka, and Santa Fé Railroad Company, or the Pueblo and Arkansas Valley Railroad Company, under the alleged contracts made with the Denver Company subsequently to the decrees of July, 1878, to control the pending suits so far as they affected the interests of the latter company, — whether the Denver Company, in consequence of said alleged contracts, had lost or waived the right, improperly denied to it by the decree of July, 1878, of occupying the Grand Cañon for the purpose of constructing its road, were matters about which the Circuit Court was at liberty, and was bound to exercise its judicial discretion. It is contended that the Circuit Court plainly disobeyed our mandate when declining to make such orders as would place the Denver Company, upon the filing of the mandate, in the actual occupancy or possession of the Grand Cañon, without reference to, or without awaiting the determination of, the claim which the Cañon City Company, or its successor, had on account of money expended in the construction of its road in the Grand Cañon, or in that portion of it which admitted of but one roadbed or track. It is true that we said referring necessarily to --- the rights of parties as they existed at the date of the decree of July, 1878 that the Circuit Court erred in enjoining the Denver Company from constructing its road in the Grand Cañon; and that that company should have been allowed to proceed without obstruction from or interference by the latter company. We, therefore, directed, among other things, that the order granting the injunction should be set aside, and that, by proper orders, the prior right of the Denver Company to occupy and use the cañon be recognized. These directions were substantially complied with. The prior right of the Denver Company to locate and construct its railway in the cañon was expressly recognized and established by the order of July 14. 1879. It is true that the injunction was not, in terms, dissolved, but the final decree of July, 1878, upon which its efficacy depended, was expressly vacated and set aside. The injunction necessarily fell with the decree. The foundation upon which it rested was destroyed when the decree was annulled. Had our directions gone no farther than to dissolve the injunction against, and to recognize the prior right of, the Denver Com pany, the present application would rest upon stronger grounds than it does. We could not, however, ignore the fact that, possibly, during the pendency of these causes in the court below, or subsequently to the decree of July, 1878, the Cañon City Company, or its successor, had, under the authority or sanction of the court, expended money in the construction of its roadbed and track in some portions of the Grand Cañon. "In that event,” we said, "the cost thus incurred in those portions of the cañon which admit of only one road-bed and track for railroad purposes may be ascertained and provided for in such manner and upon such terms and conditions as the equities of the parties may require." We gave no direction as to the mode in which such cost should be ascertained, or as to the terms and conditions to be imposed in any provision made for it. Those matters were left for the determination of the court below, according to the principles of equity. It was undoubtedly competent for that court, in the exercise of its judicial discretion, to have put the Denver Company, upon the filing of the mandate, into immediate possession of the Grand Cañon, including the road-bed and track which the Cañon City Company had constructed in the narrow portions of that defile. But the propriety of orders to that effect would have depended upon the equities of the parties as they existed at the time the action of the court, in that direction, was sought. It was not in violation of our mandate that the Circuit Court, after setting aside and vacating the decree of July, 1878, and recognizing the prior right of the Denver Company, should suspend further action as to the ultimate rights of the parties until the matters set out in the supplemental bill, and recited in the decree of July 14, 1879, were inquired into. We recognize, in its fullest extent, the power of this court, by mandamus, to enforce prompt compliance with its mandates; but it is not consistent with the principles and usages of law that we should, in that summary mode, revise the action of inferior courts, as to any matters about which they must or may exercise judicial discretion. "The writ has never been extended so far, nor ever used to control the discretion and judgment of an inferior court of record acting within the scope of its judicial authority." Ex parte Taylor, 14 How. 3; Ex parte Many, id. 24; United States v. Lawrence, 3 Dall. 42; Life and Fire Insurance Company of New York v. Wilson's Heirs, 8 Pet. 291; Ex parte Hoyt, 13 id. 279; Ex parte Myra Clarke Whitney, id. 404; Ex parte Newman, 14 Wall. 152. The remedy for any errors committed by the Circuit Court, either in the decree of July 14, 1879, or in the final decree of January, 1880, is by appeal to this court. We therefore forbear, at this time, any expression of opinion as to the existence or non-existence of errors in those decrees to the prejudice of either party. We decide nothing more, upon the present application, than that this is not a case which, in our judgment, calls for interposition by a writ of mandamus. One of the reasons assigned in oral argument why the application for mandamus should be favorably considered, is that by the act of Congress of March 3, 1877, amending the act of June 2, 1872, the time within which the Denver and Rio Grande Railroad Company must complete its road as far south as Santa Fé, will expire on June 2, 1882; in default whereof, it will forfeit, as to the unfinished portion of the road, the rights and privileges granted by the act of 1872. The time limited, it is urged, will expire before an appeal from the final decree of Jan. 2, 1880, can be reached upon the docket of this court in the usual course of its business. We recognize the force of this suggestion, and feel it to be our duty, under the circumstances, to afford the parties an opportunity to secure an early and final determination of their respective rights in the premises. To that end, upon an appeal being perfected, and upon the filing in this court of a transcript of the record, we will hear a motion to advance this cause for consideration at the present term. Mandamus denied. MR. JUSTICE SWAYNE, MR. JUSTICE FIELD, and MR. JusTICE BRADLEY dissented. MR. JUSTICE FIELD. I dissent from the order of the court denying the mandamus prayed. When the Circuit Court dissolved the injunction restraining the Denver Company from taking possession of the Grand Cañon, there was only a seeming compliance with our mandate, for soon afterwards the court restored the injunction, thus practically defeating our judgment. But as the court has decided to advance the hearing of the appeal from the final decree entered in the court below, on application of the appellants, I will refrain from further comment until that appeal is heard. PHILLIPS v. GILBERT. 1. A mechanic, pursuant to his contract with the owner of certain lots in the city of Washington, erected a row of buildings upon them. Held, that he did not lose his lien because his notice claimed it upon the property as an entirety, without specifically setting forth the amount claimed upon each building. 2. Where a bill is filed to enforce the lien, and the latter is discharged by the owner's written undertaking, with surety approved by the court, that he will pay the amount recovered with costs, - Held, that the decree in personam for the amount due the mechanic can be taken only against the owner. 3. The remedy of the mechanic against the surety is by an action at law upon the undertaking. |