ment will not benefit the lot because the lot is occupied for railroad purposes and will continue so to be occupied. Compare Chicago, Burlington & Quincy R. R. v. Chicago, 166 U. S. 226, 257, 258. That, apart from the specific use to which this land is devoted, land in a good-sized city generally will get a benefit from having the streets about it paved, and that this benefit generally will be more than the cost, are propositions which, as we already have implied, a legislature is warranted in adopting. But, if so, we are of opinion that the legislature is warranted in going one step further and saying that on the question of benefit or no benefit the land shall be considered simply in its general relations and apart from its particular use. See Illinois Central R. R. v. Decatur, 147 U. S. 190. On the question of benefits the present use is simply a prognostic, and the plea a prophecy. If an occupant could not escape by professing his desire for solitude and silence, the legislature may make a similar desire fortified by structures equally ineffective. It may say that it is enough that the land could be turned to purposes for which the paving would increase its value. Indeed, it is apparent that the prophecy in the answer cannot be regarded as absolute, even while the present use of the land continues-for no one can say that changes might not make a station desirable at this point; in which case the advantages of a paved street could not be denied. We are not called on to say that we think the assessment fair. But we are compelled to declare that it does not go beyond the bounds set by the Fourteenth Amendment of the Constitution of the United States.

Judgment affirmed.

MR. JUSTICE HARLAN, not having been present at the argument, took no part in the decision.

MR. JUSTICES WHITE and PECKHAM dissent.

Argument for Appellant.

197 U. S.

STILLMAN v. COMBE.?

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF TEXAS.

No. 174. Argued March 10, 13, 1905.-Decided April 3, 1905.

All the parties to an action in the United States Circuit Court, to determine title to land, united in an agreement that judgment be entered in favor of two of the parties who were to convey the property to a purchaser and to deposit the purchase price in a bank to the credit of arbitrators, who were to determine the exact rights of all the parties and distribute the fund accordingly; judgment was entered and never appealed from or otherwise attacked. Held that: The parties in whose favor judgment is entered are not trustees of the court, nor is the purchase price received by them a fund of, or under the control of the court; and a suit brought against them to compel them to account for the purchase money is not ancillary to the original action and the final judgment rendered therein, and jurisdiction of the Circuit Court cannot be maintained on that ground alone.

The appeal to this court on the ground that the Circuit Court had no jurisdiction by a defendant who had not appeared generally is not affected by the fact that one of the defendants has appealed to the Circuit Court of Appeals.

THE facts are stated in the opinion.

Mr. John A. Garver and Mr. James M. Beck for appellant: The sole ground of jurisdiction was that the case was ancillary to the action at law; as the United States Circuit Court is of statutory and limited jurisdiction the presumption must always be that the court is without jurisdiction, unless the contrary affirmatively appears from the record. Turner v. Bank, 4 Dall. 8; Bors v. Preston, 111 U. S. 252; Mansfield &c. R. Co. v. Swan, 111 U. S. 379, 383; Lehigh &c. Co. v. Kelly, 160 U. S. 327, 337. The appellant has not waived his right to object to the jurisdiction, by having served an answer after his plea to the jurisdiction under a limited appearance has been overruled. Harkness v. Hyde, 98 U. S. 476; So. Pac. Co. v. Denton, 146 U. S. 202; Mexican R. Co. v. Pinkney, 149 U. S. 194.

197 U.S.

Argument for Appellees.

A suit is ancillary when supplemental to, and connected with, a previous suit so as to form an incident to, and substantially continues it. Barrow v. Hunton, 99 U. S. 80; Marshall v. Holmes, 141 U. S. 589, 597; Raphael v. Trask, 194 U. S. 272, 278.

Ancillary suits fall into two general classes: Where the court has possession of a fund derived from the previous litigation. Where the court is asked to take some action with reference to a previous judgment or decree rendered by it or to an action at law still pending and undetermined, either to assist in carrying the previous judgment into effect or to correct or modify the judgment. None of those elements exist in this case.

In this case there was no jurisdiction at law or in equity and the title vested in Stillman and Carson was not a trust.

Mr. Fred Beall and Mr. J. D. Childs, with whom Mr. C. L. Bates was on the brief, for appellees:

In order to constitute a consent judgment, it is not necessary that the agreement to enter it by consent should be filed as a paper in the cause, or brought to the attention of the court, or made to appear in any manner upon the record. The consent of parties is a fact to be proved, like any other fact. Campbell v. Railroad Co., 1 Woods, 368.

The agreement and judgment created an express, active, special trust; Fort Brown Reservation was designated as the trust estate; defendants Stillman and Carson were constituted the trustees; the title to the trust estate was by the consent judgment vested in the trustees; the agreement declared the trust, defined its purpose, which was to convert the trust estate into money, by conveying it to the United States, collecting the purchase price, and depositing it to the credit of arbitrators, to be disbursed according to the rights of the parties. Salinas v. Stillman, 66 Fed. Rep. 677; Carson v. Combe, 86 Fed. Rep. 202; Pomeroy's Eq. Jur. § 1159; Perry on Trusts, §§ 18, 24, 81, 82, 448; Lewin on Trusts and Trustees, *56, *108.

The Circuit Court in which the consent judginont was repdered is vested with ancillary jurisdiction to entertain this suit

in equity for the purposes of granting to the other parties to the former suit and their privies equitable relief against the unjust, inequitable and fraudulent use of that judgment and the process of the court that rendered it, and to prevent the violation of said contract, and the breach of said trust, and to determine the conflicting claims of the parties to said fund, and to compel appellant to account for the trust fund converted by him and pay the same over to the parties found to be entitled to it, and to secure to the parties the fruits, benefits and advantages of the proceedings and judgment in the former suit, and to regulate the operation of said judgment by engrafting a trust upon it. Krippendorf v. Hyde, 110 U. S. 276, 287; Pacific R. Co. v. Missouri P. R. Co., 111 U. S. 505; New Orleans v. Fisher, 180 U. S. 185, 199; Pennock v. Coe, 23 How. 117; Clark v. Mathewson, 12 Pet. 164; Dunn v. Clark, 8 Pet. 1; Jones v. Andrews, 10 Wall. 327; Root v. Woolworth, 150 U. S. 401; Freeman . Howe, 24 How. 450; Milwaukee &c. R. R. Co. v. Soutter, 2 Wall. 609, 645; Hatch v. Dorr, 4 McLean, 112; Babcock v. Millard, Fed. Cas. 699; Dunlap v. Stetson, 4 Mason, 349; Cortez Co. v. Tannhauser, 9 Fed. Rep. 226; Bank v. Leland, Fed. Cas. 9452; Thompson v. McReynolds, 29 Fed. Rep. 657; Lamb v. Ewing, 54 Fed. Rep. 272; Bank v. Turnbull, 16 Wall. 190; Carey v. H. & T. C. Ry. Co., 161 U. S. 113.

Besides this suit is ancillary, and the court has possession of and gave the orders which secured the res, this, therefore, draws to the lower court all controversies concerning the res. Byers v. McAuley, 149 U. S. 614; Hayes v. Pratt, 147 U. S. 570; Green v. Creighton, 23 How. 90; Chambers v. Cannon, 62 Texas, 293; Eckford v. Knox, 67 Texas, 205; Patton v. Gregory, 21 Texas, 513.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court, upon the single question of the jurisdiction of that court. The jurisdiction was sustained de bene, on appeal from a preliminary

injunction, by the Circuit Court of Appeals. 86 Fed. Rep. 202; S. C., 29 C. C. A. 660. It is certified that jurisdiction was entertained solely upon the ground that this cause is ancillary to an action at law and the final judgment rendered therein. If that ground fails it is apparent from the record and is not disputed that there is no other. To decide the case it is not necessary to consider anything except the allegations of the bill, and a large part of those may be laid on one side as not material to the question here.

The purpose of the bill is to reach and distribute to the parties found entitled to the same the proceeds of a sale to the United States of land which the defendants Stillman, the appellant, and Carson, as administrator, recovered in the above-mentioned action at law. The land was occupied without right by the United States as part of the Fort Brown military reservation, and on March 3, 1885, Congress appropriated $160,000 to pay for the land and its use and occupation, but not until a complete title should be vested in the United States, the full amount of the price to be paid directly to the owners of the property. The next year certain claimants brought suit for the land, in a state court, against Colonel Kellogg, the officer in cornmand of the reservation. The suit was removed to the United States Circuit Court, the United States intervened, and for the purpose of settling the title set up outstanding rights in third persons. Other known claimants, including Stillman and Carson as administrator, each of whom claimed an undivided half, became or were made parties. By the local practice the respective shares of the parties might have been determined in the action as well as the principal question of the right of all or some of them to recover from Colonel Kellogg. But on July 13, 1887, most, although not all, of the claimants, including Stillman and Carson, made an agreement on which the jurisdiction in the present cause is based.

This agreement recited that the case was likely to be tried the next day, that it was apprehended that unless a perfect