CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.
MR. JUSTICE VAN DEVANTER delivered the opinion of the court.
This was a suit by the owner of a large body of lands in two counties in North Carolina to cancel certain deeds under which the defendant was claiming several thousand
growing trees on the lands, to enjoin the defendant from entering on the premises and cutting or interfering with any of the trees thereon, and to recover damages for trees alleged to have been wrongfully cut and removed before the suit. The bill charged, in effect, that the deeds were utterly void; that if they were not originally void, all rights under them had been exhausted by the felling and removal of all the trees covered by them; and that, if those rights had not been thus exhausted, they had been lost by abandonment and lapse of time. The answer asserted the validity of the deeds, alleged that such cutting and removal as occurred prior to the suit was done in the lawful exercise of the rights acquired under the deeds, denied that those rights had been lost by abandonment, lapse of time or otherwise, and asserted that most of the trees covered by the deeds were still standing and the defendant was entitled to cut and remove them without any restriction in point of time. It appeared from the pleadings that the deeds had been executed twenty-four years before the suit and did not purport to cover all the trees, but only a designated number of pine and poplar trees two feet in diameter at the butt, all marked with the letter "L." After the issues were framed the Circuit Court, with the acquiescence of the parties, entered the following order:
"And it appearing to the court that the rights of the defendants in this action depend primarily on several questions of law based on documentary evidence of its title to the trees in question;
"And it further appearing to the court that it would facilitate the hearing of said cause, if such documentary evidence were offered and such preliminary question of title first disposed of by the court;
"Now, therefore, it is ordered that these questions of law and the documentary evidence bearing thereon be first presented to the court for argument and all questions
of fact in this cause be held in abeyance until said preliminary questions are disposed of by the court."
A partial hearing pursuant to that order resulted in the rendition of a decree to the effect that through the deeds in question the defendant acquired an absolute and indefeasible title in fee simple to the trees therein described, as also a right of ingress and egress for the purpose of cutting and removing them, and that under a proper construction of the deeds the defendant was not restricted to a reasonable time within which to fell and remove the trees, but was entitled to do so whenever it chose. The decree concluded: "And this cause if retained for further orders." Shortly thereafter an order was entered reciting that "there is much other proof touching the matters in issue necessary to be heard, looking to a final judgment," and appointing a special matter "to take proofs of all and singular the issues herein (except the evidence in the cause heretofore heard by this court), especially to take evidence concerning the identity of certain marked trees described in the pleadings, and to report the number and identity of such trees, and to ascertain and report his findings to this court."
Without awaiting the incoming of the report of the special master or the action of the court thereon the plaintiff prayed and was allowed an appeal from the decree before described to the Circuit Court of Appeals, and the decree was there affirmed. 181 Fed. Rep. 462. The plaintiff then petitioned this court for a writ of certiorari, which was allowed.
The first question that claims our attention is, whether one of the judges who sat at the hearing in the Circuit Court of Appeals was disqualified under the statutory provision, act of March 3, 1891, 26 Stat. 826, c. 517, § 3, which declares "that no justice or judge before whom a cause or question may have been tried or heard in a District Court, or ...