66 circulation of air; and including not only structure had been there, and down to the time of trial. The plaintiff offered to prove the value of the building, before and after the defendant's elevated rail-pensation for other discomforts and inconroad was built. This evidence was objected to by the defendant, and excluded by the court. Thereupon the following colloquy took place: 'Defendant's Counsel. You only come down to the commencement of this action, I suppose? I will ask counsel to make a determination of what he is going for. I suppose I have a right to ask for an election at this point. The Court. For what length of time do you claim to recover? Plaintiff's Counsel. We claim for permanent injury. The Court. If you are entitled to recover, you claim damages should be assessed by the jury until now? Plaintiff's Counsel. No, sir; but until as long as grass grows and water runs. The Court. May be they will take it down; if they should, then you would not want to pay back anything. But you claim the right to recover prospectively. Counsel is entitled to know what you claim. I think the common law is, as I stated it, that where there is a consequential injury resulting from damages, the damages may be recovered up to the time of the trial, and if they continue the right of recovery continues also. I think I will go by the common law, unless I see to the contrary before the trial closes." Other witnesses were afterwards called and examined by both parties, without objection, as to the diminution of the light, air, and rental of the building, from the time of the erection of the defendant's structures to the time of the trial, and as to the causes of such diminution. Evidence that the value of the plaintiff's property had increased since the erection of this railroad structure was offered by the defendant, and objected to by the plaintiff. The court sustained the objection, and excluded the evidence, and the defendant eexcepted. Julien T. Davies and E. S. Rapallo, for plaintiff in error. Wm. F. MacRae, for defendant in error. *Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court. The law of the state of New York, as de At the close of the evidence, the court denied successive motions of the defendant to direct a verdict for the defendant, because no facts had been shown sufficient to constitute a cause of action, and to direct the jury to render a verdict for the plaintiff for nominal damages only, and the defendant excepted to the denial of each of these motions. The court in-clared by the court of appeals, appears to structed the jury that the plaintiff, having erected its building after Third avenue and Twenty-Third street had been laid out as public streets, had the right to have those streets remain forever as open streets; and that if the structure erected by the defendant was such a permanent thing in the way of either street, as an open street, as to make it cease to be an open street, or cease in a measure to be an open street, and so to subvert it from an open street into something else at that place, the plaintiff was entitled to recover "such damages as it has sustained by reason of the erection of this structure, which has subverted the street, from the time it was put up until now," taking into consideration the injury to the part of the building occupied as a bank, by hindering access to and egress from it, and by obstructing the admission of light and the be as follows: An elevated railroad erected in and over a street pursuant to the statutes of the state, and with due compensation to the owners of property taken for the purpose, is a lawful structure. The owners of lands abutting on a street in the city of New York have an easement of way, and of light and air, over it; and, through a bill in equity for an injunction, may recover of the elevated railroad company full compensation for the permanent injury to this easement; but, in an action at law, cannot, without the defendant's acquiescence, recover permanent damages, measured by the diminution in value of their property, but can recover such temporary damages only as they have sustained to the time of commencing the ac-tion. In re New York El. R. Co., 70 N. Y. 327; In re Gilbert El. Ry. Co. Id. 361; Story v. Railroad Co., 90 N. Y. 122; Lahr v. Rail *442 way Co., 104 N. Y. 268, 10 N. E. Rep. 528; Pond v. Railway Co., 112 N. Y. 186, 19 N. E. Rep. 487. This rule of damages at law has not prevailed in analogous cases decided in other jurisdictions, and collected in the briefs of counsel; and in the case last above cited the court observed that "it might be productive of less inconvenience on the whole, if an opposite rule could be adopted. 112 N. Y. 190, 19 N. E. Rep. 489. But we are relieved from the necessity of laying down a general rule on the subject, because in this case it clearly appears that the defendant procured or acquiesced in the rulings under which the trial was conducted, and thereby waived the right to object to them. Lahr v. Railway Co., 104 N. Y. 268, 294, 10 N. E. Rep. 528; Drucker v. Railway Co., 106 N. Y. 157, 12 N. E. Rep. 568; Hussner v. Railroad Co., 114 N. Y. 433, 21 N. E. Rep. 1002; Shaw v. Stone, 1 Cush. 228, 243. The complaint was framed in the double aspect of claiming damages for the injury accruing to the use and enjoyment of the plaintiff's property by the obstruction of light and air and the diminution of rents, as well as damages for the permanent injury to the market and rental value of the property. The plaintiff began by introducing evidence, to the admission of which the defendant took no objection or exception, of the injury to the use and enjoyment of the property by obstructing the access of light and air, and by diminishing the rents, down to the time of trial. When the plaintiff afterwards offered evidence of the value of the building, before and after the erection of the defendant's structure, the defendant objected to this evidence, and it was excluded by the court. The defendant's counsel thereupon suggested that the plaintiff's damages should come down to the commencement of the action only, and the plaintiff's counsel replied that they claimed damages for the permanent injury. | The court declined to adopt either of these views, and refused to allow damages to be recovered for the permanent injury, but ruled that damages might be recovered to the time of trial. Neither party having excepted to this ruling at the time, both parties must be presumed to have assented to it. In accordance with that ruling, the trial proceeded upon the theory that damages were not to be awarded for permanent injury, but were to be assessed down to the time of trial; and in accordance with that theory further evidence was introduced by both parties, without any objection or exception by either party to the admission of the evidence, or to the rulings under which it came in. The defendant having, by his objection sustained by the court, prevented the plaintiff from introducing evidence of permanent injury to the building, and having permitted the trial to proceed in accordance with the ruling of the court admitting evidence of injury to the time of the trial, without excepting either to that ruling or to the evidence admitted in accordance with it, could not afterwards be permitted to change front, and to insist either that the damages must be assessed for the permanent injury, or that the damages must be limited to the time of the commencement of the action. The court, therefore, rightly declined to permit the defendant to introduce evidence (competent only upon the issue of injury to the permanent value of the property, which by the defendant's procurement had been excluded from the consideration of the jury) that the value of the property had been increased by the erection of the defendant's structure; and rightly refused the instruction, requested by the defendant after the charge, that the recovery could be only for the permanent injury to the plaintiff's property. For the same reason, the defendant's exception to so much of the charge as allowed damages to be recovered to the time of the trial cannot be sustained. There can be no doubt that the court rightly declined to order a verdict for the defendant, or a verdict for the plaintiff with nominal damages; and that the instruction which allowed the jury to award a fair compensation for the discomforts and inconveniences in the occupation of the plaintiff's building, caused by the existence of the defendant's structure in front of it, independently of the running of trains thereon, was sufficiently favorable to the defendant. Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. Rep. 719; Buccleuch v. Board, L. R. 5 H. L. 418. As the damages recovered appear by the bill of exceptions, made part of the record, to have been assessed to the time of trial, the judgment in this case may be a bar to any subsequent action, at least for damages suffered before that time. Hussner v. Railroad Co., 114 N. Y. 433, 438, 21 N. E. Rep. 1002; Warner v. Bacon, 8 Gray, 397, 402; Goslin v. Corry, 7 Man. & G. 342, 345, 8 Scott, N. R. 21, 24. But that point is not now presented for adjudication. Judgment affirmed. Mr. Justice BREWER, not having been a member of the court when this case was argued, took no part in the decision. A decree setting aside a conveyance as fraudulent, appointing a receiver of all the property which passed to defendants under the conveyance, and ordering defendants to account for such property, together with all proceeds from the sale of any part of it, and the rents and profits, and to deliver possession of the same to the receiver who is ordered to sell it, but which does not specify the particular property to be delivered, or its amount, but merely gives its value at the time of the conveyance,-is not a final decree, settling the rights between the parties, and no appeal lies therefrom. Appeal from the supreme court of the territory of Montana. Amanda Twell brought her action in equity in the district court, second judicial district, Deer Lodge county, Montana territory against Richard Twell, Joseph Lodge, and Samuel Beaumont, to set aside certain transfers of property by Twell to Lodge and Beaumont, on the ground that they were made with intent to defraud the appellee in the matter of alimony awarded her by a decree of divorce, and to have the property applied to the payment of such alimony. The divorce decree was entered December 17, 1883, and adjudged that defendant Twell pay to complainant, during her natural life, or until further order of the court, the sum of $50 per month, and that he give security therefor. The bill averred that defendant Twell had failed to obey said decree in that he had not paid the monthly installments for alimony and had failed to give the required security; that he had departed from the territory without making any provision for the payment, and leaving unpaid the sum of $150; that on December 22, 1883, being the owner of real estate situated in Deer Lodge county of the value of $1,200, and of *personal property worth $5,000, to avoid the process of the court for the enforcement of said decree, he made a pretended sale and assignment of his property to the defendants Lodge and Beaumont; and that said sale and assignment were fraudulent and void, and were intended and made for the purpose of delaying and hindering and defrauding the plaintiff, to the knowledge of defendants Lodge and Beaumont, who made the purchase to enable Twell to so defraud the plaintiff of her rights. The bill also alleged that said Twell had no other property within the jurisdiction of the court, and prayed that the sale and assignment be declared fraudulent and void as against the plaintiff; that a receiver be appointed; that Lodge and Beaumont be required to account for all the property received by them, with the rents, issues, and profits, and all proceeds arising from sales thereof; that the defendants be enjoined from disposing of any of said property or its proceeds; and that the receiver be directed to sell the property, and pay the $150 then due and whatever sum might be due at the time of the sale, holding the balance subject to the order of the court to pay on the aforesaid decree. A decree by default was entered against the defendant Twell. Lodge and Beaumont demurred, which demurrer was overruled, and the defendants excepted. They also filed their separate answer, denying the allegations of the bill touching fraud. The cause came on for trial on the 6th of December, 1884, and the defendants Lodge and Beaumont, by leave of court, amended their answer, and denied" that the value of the property sold or assigned to these defendants, Lodge and Beaumont, as specified in complainant's complaint, was, at the time of the purchase thereof, of the value of six thousand two hundred dollars, or any greater value than about three thousand five hundred dollars." This amendment was verified by Lodge and Beaumont. The trial court found that the sale was fraudulent and void, and made with intent to hinder, delay, and defraud the plaintiff, and that plaintiff was entitled to the relief asked for in her complaint, and, among other facts, "that the property sold by defendant Twell to defendants Lodge and Beaumont was, at the time of said sale, of the value of at least $4,200, and that defendants Lodge and Beaumont have realized from the personal property sold, since said sale, the sum of about twenty-five hundred dollars, and still have all the real estate and personal property, of the value of at least $600, in their hands." The defendants Lodge and Beaumont moved the court for judgment, notwithstanding the findings, which motion was overruled, and the defendants excepted. A decree was then entered in favor of the plaintiff, setting aside the sale and assignment by Twell to Lodge and Beaumont, and appointing a receiver of the property and effects of Twell, which he had at the time of the entry of said decree of divorce, and sold and conveyed to Lodge and Beaumont on or about December 22, 1883, which property was described as consisting at that date of personalty of the value of at least $4,200, and real estate of the value of $600; and it was further de creed that Lodge and Beaumont account for all property received by them, or either of them, under either the sale or assignment above mentioned, and for all proceeds arising from any sale or sales thereof, and for the rents, issues, and profits thereof; that they deliver possession of the same to the receiver; that the receiver sell the property delivered; and that out of the proceeds he pay the costs and expenses of the sale and receivership, and all sums due by defendant Twell to the plaintiff under and by virtue of the decree of divorce, and hold the balance of the proceeds of such sales, subject to the order of the court in the above-mentioned decree of divorce between plaintiff and defendant Twell, and for costs. From this decree Lodge and Beaumont appealed to the supreme court of the territory, (9 Pac. Rep. 537,) which affirmed the judgment,and they then appealed to this court, which appeal was allowed February 25, 1886, and an appeal-bond then given and approved. An affidavit of value was filed as stated in the opinion. S. S. Burdett, for appellants. I. Brownson, Jr., for appellee. James Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion, of the court. "It will be perceived that the decree did: not identify the particular property to be delivered, nor specify the amount of money to be paid or collected. The court had found that Lodge and Beaumont had sold part of the original property, and realized therefrom about $2,500, but the exact amount was not determined by the decree, nor the amount of the rents, issues, and profits received by them, nor that Lodge and Beaumont, while directed to account for the property, should respond, as of the date of the invalidated sale, for the value of so much as they had disposed of, or for the proceeds only. The receiver was directed to sell the property delivered to him, but what that property would be necessarily could not appear until what had been sold by Lodge and Beaumont had been ascertained. Until these matters were adjusted, and the account taken, it was impossible to tell for what amount an order of payment or a money decree should go against the defendants Lodge and Beaumont, after the delivery of the property they had on hand to the receiver. What was left to be done was something more than the mere ministerial execution *234 of the decree as rendered. The decree was interlocutory, and not final, even though it settled the equities of the bill. Craighead v. Wilson, 18 How. 199; Young v. Smith, 15 Pet. 287; Iron Co. v. Martin, 132 U. S. 91, ante, 32. In Railroad Co. v. Swasey, 23 Wall. 405, 409, Mr. Chief Justice WAITE, in passing upon a decree of foreclosure and sale, observed that an appeal may be taken from such a decree" when the rights of the parties have all been settled and nothing remains to be done by the court but to make the sale and pay out the proceeds. This has long been settled. The sale in such a case is the execution of the decree. By means of it the rights of the parties, as settled, are enforced. But to justify such a sale, without consent, the amount due upon the debt must be determined, and the property to be sold ascertained and defined. Until this is done the rights of the parties are not all settled. Final process for the collection of money cannot issue until the amount to be paid or collected by the process, if not paid, has been adjudged. So, too, process for the sale of specific property cannot issue until the property to be sold has been judicially identified. Such adjudications require the action of the court." "The authorities are uniform," said Mr. Chief Justice WAITE, in Dainese v. Kendall, 119 U. S. 53, 54, 7 Sup. Ct. Rep. 65, "to the effect that a decree, to be final for the purposes of an appeal, must leave the case in such a condition that if there be an affirmance here the court below will have nothing to do but to execute the decree it has already entered." Upon applying for the allowance of an appeal to this court, Lodge and Beaumont made affidavit that, by the judgment and decree of the district court, it had been found that the personal property sold to them by Twell was of the value of $4,200, and that the real estate was of the value of $600, and they stated in effect that they had received, up to the rendition of the judgment of the supreme court, rents and profits sufficient, if added to those sums, to make an aggregate in excess of $5,000. But, as we have seen, the decree referred to the value of the property as of the date of the alleged sale and assignment, and did not in terms require Lodge and Beaumont to account at that value, so that until the entry of another decree it would remain problematical whether the money which might thereby be decreed to be paid and the value of the property recovered in specie, together, would be equal to the amount necessary to give us jurisdiction. Taking this decree as a whole, we are satisfied that the appeal from the judgment affirming it will not lie, and it is accordingly dismissed. (135 U. S. 244) BEATTY et al. v. BENTON. FEDERAL QUESTION-JURISDICTION ON APPEAL. Where a state court decides a case, involving a federal question, on grounds which are independent of the federal question, and are broad enough to maintain the judgment, a writ of error to the supreme court of the United States will be dismissed. In error to the supreme court of the state of Georgia. Salem Dutcher, for plaintiffs in error. In BLATCHFORD, J. On the 3d of May, 1854, one Carrie executed and delivered to Elijah D. Robertson, a white man, a warranty deed of a lot of land in Augusta, Ga., 82 feet 6 inches in width by 200 feet in depth. The consideration expressed in the deed was $600, and it conveyed to Robertson, his heirs and assigns, forever, the lot in question, in trust, nevertheless, to and for the sole use, benefit, and behoof of the following free persons of color, of Augusta, "to-wit, Fanny Gardner, the wife of Thomas Gardner, and their daughter, Frances Gardner, and any future issue of the said Fanny by the said Thomas, and, in case of the death of the said Frances and Fanny, in trust for the next of kin of the said Thomas Gardner." The deed also authorized Robertson, in case it should be deemed advisable and to the interest of all concerned that a sale of the property should take place, to sell and make titles to it, provided the consent of the said Frances and Fanny, their guardian or guardians, should be first had and obtained. March, 1879, Fanny Gardner filed a bill in equity in the superior court of Richmond county, Ga., setting forth the purchase of the lot of land by Gardner from Carrie for $600, and the making of such deed; that Gardner, who was her husband, and the father, by a former wife, of Frances Gardner, who had intermarried with one Beatty, died in 1865; that all of those persons were free persons of color; that on the 3d of May, 1854, Gardner and the plaintiff and Frances took possession of the property; that afterwards Frances, having married, Gardner divided the lot and erected a house on a part of it for Frances; that the parties thus continued in the possession of the property until the death of Gardner; that from that time Frances had remained in the possession of the portion of the lot on which the house was erected for her use, and the plaintiff had occupied the remaining part of the lot; that the deed to Robertson was void, because at that time all conveyances of real estate in Augusta to or for the use of free persons of color residing therein were prohibited by law; that the plaintiff acquired title to the property occupied by her, by actual adverse possession of the same for 20 years, and Frances had acquired title in the same way to the premises occupied by her; that the plaintiff desired to sell her part of the property, but could not do so, because Frances claimed that, under the terms of the trustdeed, she owned a remainder interest in the whole of the property, and the plaintiff had only a life-estate therein; and that the property could not be sold except with the consent of Frances. The bill prayed for a decree that the plaintiff owned a fee*simple title to the portion of the lot so oc-* cupied by her; that the trust-deed be canceled; that, if the court should hold that the title of the plaintiff and of Frances was derived from seven years' possession under the trust-deed, as color of title, it would decree that the terms of such deed did not bind the plaintiff or limit her title. in the property; that, if the plaintiff did | such lives, to convey the property to such not have a fee-simple title to the part in her possession, she and Frances might be decreed to be tenants in common of the entire property, and the same might be divided by commissioners, or be sold, and the proceeds divided, share and share alike, between the plaintiff and Frances and for general relief. The bill was afterwards amended by inserting an allegation that the plaintiff furnished to Gardner at the time of the purchase one-half of the purchase money of the property, the same being the proceeds of her labor as a free person of color; and, further, that if the court held that the plaintiff acquired no legal interest under the division of the lot by Gardner, in the part which he gave to her and on which she had since lived, and no interest that could ripen by prescription, then Gardner died in possession of all of the lot, leaving the plaintiff and Frances as his only heirs; that such heirs had, by tacit consent, actually occupied, held, and claimed the portion so divided to them by Gardner from the time of his death; and that Gardner made no will and left no other heirs. Frances, being then the wife of one Dadis, answered the bill, denying that the property was ever divided between her and the plaintiff by Gardner, or since his death, otherwise than that Gardner built another house for her on the property, for convenience, because she was married, and had many children; and that her title and that of the plaintiff was that of co-cestuis que trustent for life, with remainder over to the children of Frances who should be living at the termination of such equitable life-estate. children of the defendant as might then be living, and, should there be none such, then to whoever should be next of kin to Gardner; and that the adult son of the defendant be made a defendant, with a guardian ad litem to be appointed for her minor children. The answer was afterwards amended by averring that Gardner died in November, 1865; that from the date of the trust-deed to that time the plaintiff and the defendant and Gardner resided together on the lot, being in occupation of it under and by virtue only of the trust deed; that from the time Gardner died until the bringing of the suit the plaintiff and the defendant continued to occupy the lot; that more than seven years elapsed from the death of Gardner to the bringing of the suit; that under the laws of Georgia, as they existed from the date of the trust-deed, any instrument in writing purporting to convey a title to land, even if void, was good as color of title, and adverse possession of the land thereunder for seven years gave a good title by prescription to the land; that, under the first section of the act of congress of April 9, 1866, all persons within the jurisdiction of the United States became entitled to the equal benefit of all laws and proceedings for the security of person and property as was enjoyed by white citizens, and all citizens of the United States became entitled in every state to the same rights as were enjoyed by the white citizens thereof, as respected real and personal property; that, under the first section of the fourteenth article of amendment to the constitution of the United States it was provided that no state should make or enforce any law which should abridge the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws; that under said act of congress and said amendment the defendant became entitled to the same rights, as to prescriptive title by possession under color of title, as any white prson; that under said act of congress and said amendment, the act of Georgia of December 19, 1818, and that of December 22, 1819, could not be lawfully enforced as against the rights of the defendant under the trust-deed as color of title, even if the deed were originally void; and that under said act of congress and the fourteenth amendment the plaintiff and the defendant, under the trust-deed, and their occupancy of the lot thereunder for seven years after the death of Gardner, had an equitable life-estate in common in the lot, with remainder in fee to the next of kin of Gardner. The answer was also amended by averring that the claim of the plaintiff that she had furnished to Gardner, at the time of the purchase, one-half of the purchase money of the property, was barred by the statute of limitations, the claim being first asserted by an amend By way of cross-bill the answer averred that before January 1, 1863, no proceedings were ever instituted to escheat the property as being conveyed for the benefit of free persons of color; that by section 2627 of the Code of Georgia becoming of force on January 1, 1863, it was declared that escheat should lie only on failure of heirs; that by the act of Georgia of March 17, 1866, free persons of color were vested with all the property rights of white persons; that among those rights was that to a prescriptive title by adverse possession for seven years under written evidence of title; that by possession adverse to all the world, under the trustdeed, for seven years and more prior to the bringing of the bill, the plaintiff and Frances had a good prescriptive title to the property under the limitations of the deed, and had an equitable life-estate in common, with remainder in fee, on their death, to the next of kin of Gardner; that Frances had six children then living, two of them by her first husband, Beatty, one of whom was an adult and the other a minor, and four of them by her husband Davis, all of whom were minors, such six children being the next of kin after Frances to Gardner, their grandfather; and that Gardner had no issue by the plaintiff. The answer prayed that the court might declare the trust to be valid, and appointment to the bill, made June 28, 1884, more a trustee to hold the property for the joint use and benefit of the plaintiff and the defendant during their lives, or the life of either of them, and, at the termination of than 30 years after the purchase of the property by Gardner; and that the plaintiff was estopped by laches from asserting such claim. A guardian ad litem was |