after April 24, 1876, shall be considered by the | has been to protect those who, in good faith, setcommissioners. But aside from this view, other tled upon public land and made improvements considerations lead us to the same conclusion. thereon; and not those who by violence or fraud The Act as already mentioned, followed our de- or breaches of contract intruded upon the possescision that certain persons, claimants and occu- sions of original settlers and endeavored to appants of portions of the reservation were not en-propriate the benefit of their labors. There has titled to the land, and was designed to confer been in this respect in the whole legislation of the upon them and others in like position a title to country a consistent observance of the rules of such portions as they had occupied or improved, natural right and justice. There was a time, in after first setting aside and reserving from sale the early periods of the country, when a party a tract sufficiently large to include the Hot who settled in advance of the public surveys Springs and land immediately adjacent. Those was regarded as a trespasser, to be summarily parties were not trespassers, in the offensive and roughly ejected. But all this has been meaning of that term, nor intentional invaders changed within the last half century. With the of the rights of the United States. They entered acquisition of new territory, new fields of [285] upon the land in the confident belief that they enterprise have been opened, population has were authorized to do so. The plaintiff relied spread over the public lands, villages and towns upon a New Madrid certificate which was lo- have sprung up on them; and all the industries cated upon the lands in controversy as far back and institutions of a civilized and prosperous as 1820, and his failure to secure the title arose, people have been established, with the church as already stated, from the omission of the pub- and school house by their side, before the surlic surveyor to return the survey and a plat of veyor with his quadrant and line appeared. them to the recorder of land titles before the Act of 1832 took effect and withdrew the lands from appropriation. The government did not treat him and the other claimants as wanton intruders on the public domain, for then it might have ejected them by force. Instead of that it authorized proceedings for a judicial ascertainment of the merits of their respective claims. The Act of 1877 embraces, therefore, under the designation of claimants and occupants, those who had made improvements, or claimed possession under an assertion of title or a right of preemption by reason of their location or settlement. It was for their benefit that the Act was [284] passed, in order that they should not entirely forfeit their claims from location or settlement, and their improvements, but should have, except as to the portions reserved, the right of purchase. Parties succeeding, by operation of law or by conveyance, to the possession of such claimants and occupants, would succeed also to their rights. But lessees under a claimant or occupant, holding the property for him, and bound by their stipulation to surrender it on the termination of their lease, stand in no position to claim an adverse and paramount right of purchase. Their possession is, in law, his possession. The contract of lease implies not only a recognition of his title but a promise to sur-tion of a large tract of land, which includes render the possession to him on the termination of the lease. They, therefore, whilst retaining possession, are estopped to deny his rights. Blight v. Rochester. 7 Wheat., 535.

With absolute confidence, these pioneers have relied upon the justice of their government, and they have never been disappointed. The most striking illustrations of this confidence, and of the just action of the government are found in the settlement of Oregon and California. Before any laws of the United States had been extended to Oregon, enterprising men crossed the plains and took possession of its fertile fields. They organized a provisional government embracing guaranties of all private rights. They passed laws under which persons and property were protected and justice administered with as much care and wisdom as in old communities. They prescribed regulations for the possession and occupation of land among themselves and, when the laws of the United States were extended over the country, those regulations were respected and the rights acquired under them recognized and enforced.

On this subject Mr. Justice Miller, speaking for the court in Lamb v. Davenport, said of the settlement upon the land which now embraces the Town of Portland: "It is sufficient here to say that several years before that (the donation) Act was passed, and before any Act of Congress existed by which title to the land could be acquired, settlement on and cultiva

the lets in controversy, had been made, and a town laid off into lots, and lots sold, and that these are a part of the present City of Portland. Of course no legal title vested in any one by This rule extends to every person who en these proceedings, for that remained in the ters under lessees with knowledge of the terms United States: all of which was well known and of the lease, whether by operation of law or by undisputed. But it was equally well known purchase and assignment. The lessees in this that those possessory rights and improvements case, and those deriving their interest under placed on the soil were, by the policy of the them could, therefore, claim nothing against government, generally protected, so far at least the plaintiff by virtue either of their posses- as to give priority of the right to purchase sion, for it was in law his possession; or of whenever the land was offered for sale, and their improvements, for they were in law his when no special reason existed to the contrary. improvements and entitled him to all the bene- And though these rights or claims rested on no fits they couferred, whether by preemption or statute or any positive promise, the general otherwise. Whatever the lessees and those un-recognition of them in the end by the governder them did by way of improvement on the ment, and its disposition to protect the meritoleased premises inured to his benefit as abso rious actual settlers, who were the pioneers of lutely and effectually as though done by him- emigration in the new territories, gave a decided and well understood value to these claims. They were all subject to bargain and sale, and as among the parties to such contracts they were

self.

Whenever Congress has relieved parties from the consequences of defects in their title, its aim

[286]

valid. The right of the United States to dispose of her own property is undisputed, and to make rules by which the lands of the government may be sold or given away is acknowledged; but subject to these well known principles, parties in possession of the soil might make valid contracts, even concerning the title, predicated upon the hypothesis that they might thereafter lawfully acquire the title, except in cases when Congress had imposed restrictions on such contracts." 18 Wall., 313, 314 [85 U.S., XXI., 761, 762].

thorities, and if not incorporated, for the judge of the county court, to enter, at the proper landoffice and at the minimum price, such land "In trust for the several use and benefit of the oocupants thereof, according to their respective interests; the execution of which trust as to the disposal of the lots in such town, and the proceeds of the sale thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the State or Territory in which the same is situated." The Act of Congress of March 3, 1853 [10 Stat. at L., So in California the discovery of the precious 244], extended the provisions of this Act, and metals was followed, as is well known, by a with certain exceptions, made the whole of the large immigration to the State which increased public lands, not being mineral, occupied as her population in a few years to several hun- towns or villages subject to like entry, whether dred thousand. The majority of the immi- settled upon before or after they were surveyed. grants at first found their way into the mineral In Ricks v. Reed, decided in 1862, the proper regions and became seekers of gold. But still construction of the Act was a question before [288] a very large number settled upon the farming the Supreme Court of California, and the court lands, erected houses thereon, planted vine- said: "It is true the entry of the town lands by yards and orchards, and subjected portions to the corporate authorities or county judge is, cultivation. Much of this was in advance of under the Act of Congress, 'in trust for the the public surveys and even before the passage several use and benefit of the occupants thereof, of an Act of Congress opening the agricultural according to their respective interests;' but this lands to settlement, and providing for the sale provision does not establish that it was the inof the mineral lands. Yet the progress of the tention of Congress to give the benefits of the country was not thereby stayed. The first ap- entry to mere temporary occupants of particupropriator of mineral lands within certain lim-lar tracts at the date of the entry, without refits, or the first settler on agricultural lands to erence to the character of their occupancy and, the extent prescribed by the preemption laws thereby, in many instances, deprive the origiin force in other States, was recognized every- nal bona fide settlers of the premises and imwhere as having a better right than others to provements in favor of those who had, by force the claim appropriated, or to the land settled or otherwise, intruded upon their settlement. upon. In all controversies, except as against Were such the effect of the provision in questhe government, he was regarded as the original tion, the trespasser of yesterday or the tenant owner from whom title was to be traced. And of to-day would often be in a better position when the government extended its surveys over than the parties who, by their previous occuthe agricultural lands it gave the privilege of pation and industry, have built up the town purchasing, the preemption right, to the first and made the property valuable. We do not settler, requiring only that his possession should think Congress could have contemplated that be continued, accompanied with improvement. results of this nature should follow from its [287] And when it allowed the mineral lands to be legislation, but, on the contrary, that it insold, it was to the original appropriator or to tended that the original and bona fide occupants those deriving their claim from him that title should be the recipients of the benefits of the was given. In no instance in the legislation of entry to the extent, at least, of their interestthe country have the claims of an intruder upon that is, of their actual occupancy and improvethe prior possession of others, or in disregard of ments." 19 Cal.; 575. their rights, been sustained. Laborers occupying mining claim, or agricultural lands whilst working for the first appropriator or settler, acquired no preemptive rights over him to such claims or lands; nor did any permissive occupation under him, as tenant or otherwise, impair his rights. To construe the Act of 1877 so as to give to lessees a better right than their laudlord to purchase the land of which he had been in occupation more than a third of a century, would require us to attribute to Congress not only the intention to do him flagrant injustice, but to depart from its previous uniform and long settled policy to protect the pioneer and original settler upon the public domain.

In the dealing of the government with occupants of lots in towns built upon the public lands, we have a further illustration of the good faith which is exacted from parties seeking the title of the United States. The Town Site Act of Congress of May 23, 1844 [5 Stat. at L., 657], provides that whenever any portion of the surveyed public lands has been settled upon and occupied as a town site, it shall be lawful, if the town be incorporated, for the corporate au- |

The provision of the Act that the commission-
ers shall finally determine the right of each
claimant or occupant to purchase the land or a
portion of it, does not necessarily withdraw that
determination from the consideration of the
court. It is final so far as the land department
is concerned. By the general law, all proceed-
ings for the alienation of the public lands, from
the incipient steps to a patent, are placed under
the supervision of that department.
The pro-
vision in question takes the action of the board,
in the particulars mentioned, from that super-
vision. In effect it substitutes the board in the
place of the ordinary land officers, with only a
modification of duties and powers adapted to
the peculiar circumstances of the case. It does
not withdraw its decisions from the correcting
power of the court, when the board has miscon-
strued the statute and thus defeated its manifest
purpose and made its benefits inure to those
who were never in the contemplation of Con-
gress, and therefore were not intended to be the
recipients of its bounty.

The powers of the commissioners under the
Act of 1877 are not essentially different from

[289]

those of the receiver and register of the land-of- | and the question had become one of private
fice in cases of conflicting claims to preemption. right, the jurisdiction of courts of equity might
The latter officers must hear the evidence of par- be invoked to ascertain if the patentees did not
ties, and decide as to which has the better right hold in trust for other parties; and if it appeared
to the patent certificate. The judicial charac- that the party claiming the equity had estab-
ter of their investigation and determination is as lished his right to the land upon a true construc-
great and important as that of the commission- tion of the Acts of Congress and by an errone-
ers 'under the Act of 1877. The acts done in ous construction the patent had been issued to
both cases relate merely to the sale of public another, the court would correct the mistake.
lands; and it is difficult to perceive any reason In the opinion Mr. Justice Miller, speaking for
why, when private rights are invaded, the door the court, referred to the general doctrine that
should be closed against relief in the courts of when a special tribunal has authority to hear
the country in the one case more than in the and determine certain matters arising in the
other.
course of its duties, its decision within the scope
of its authority is conclusive upon all others,
and said:

The case as shown by the bill is one of a clear disregard by the commissioners of their authority. The statute in terms declares that they shall "That the action of the land-office in issuing not consider any claims accruing after April 24, a patent for any of the public lands, subject to 1876. They have not heeded this injunction, sale by preemption or otherwise, is conclusive but awarded the right of purchase to parties of the legal title, must be admitted under the whose only claim originated in 1877. It would principle above stated; and in all courts and in require, under these circumstances, very clear all forms of judicial proceedings, where this language to deprive the injured party of relief. title must control, either by reason of the limAgain, the statute, in requiring them to finally ited powers of the court, or the essential characdetermine the right of each claimant or occu-ter of the proceeding, no inquiry can be perpant to purchase parts of the reservation, recog- mitted into the circumstances under which it nizes the existence of rights as between differ- was obtained. On the other hand there has [291] ent claimants, though equally without title so always existed in the courts of equity the power far as the government is concerned. But in their in certain classes of cases to inquire into and decision they have ignored the universally ac- correct mistakes, injustice and wrong, in both knowledged right as between landlord and ten- judicial and executive action, however solemn ants, giving to the latter what could by no pos- the form which the result of that action may assibility belong to them in the relation which they sume, when it invades private rights; and by occupied. Had Congress intended to invest the virtue of this power the final judgments of commissioners with absolute discretion in courts of law have been annulled or modified, awarding the privilege of preemption of the sev- and patents and other important instruments iseral parcels of land, its language would have suing from the Crown, or other executive been different; it would not have required an branch of the government have been corrected examination of witnesses, a regard for existing or declared void, or other relief granted. No boundaries and a determination of rights. reason is perceived why the action of the landEverything in the statute, from the beginning office should constitute an exception to this to the end, indicates an intent that, in awarding principle. In dealing with the public domain the right of preemption, the commissioners under the system of laws enacted by Congress should be governed, not by an arbitrary discre- for their management and sale, that tribunal detion, but by the existence of claims by posses- cides upon private rights of great value, and sion and a consideration of the mutual rights of very often, from the nature of its functions, this parties as between one another. They had no is by a proceeding essentially ex parte, and peright to disregard the very principle on which culiarly liable to the influence of frauds, false their appointment was based. swearing and mistakes. These are among the On matters depending upon conflicting evi- most ancient and well established grounds of dence as to the extent of occupation and the the special jurisdiction of courts of equity revalue of improvements, and many other mat- ferred to, and the necessity and value of that ters, the action of the commissioners is undoubt-jurisdiction are nowhere better exemplified than edly final; but upon the construction of the law, in its application to cases arising in the land[290] and particularly as to the parties for whose ben- office." efit it is designed, it is subject equally with all local boards of limited jurisdiction to have its conclusions, if erroneous, reviewed and corrected by the judicial tribunals. This question was very fully and thoughtfully considered in Johnson v. Towsley, 13 Wall., 72 [80 U.S., XX., 485]. In that case the direct question was as to the effect to be given to the 10th section of the Act of June 12, 1858, which declared that appeals in cases of contest between different settlers for the right of preemption should thereafter be decided by the Commissioner of the General Land-Office, "Whose decision shall be final unless appeal therefrom be taken to the Secretary of the Interior." It was held that the finality there declared had reference only to the supervisory action of the land department; that, after the title had passed from the government

This case is a leading one in this branch of the law and has been uniformly followed. The decision aptly expresses the settled doctrine of this court with reference to the action of officers of the land department, that when the legal title has passed from the United States to one party, when in equity, and in good conscience, and by the laws of Congress, it ought to go to another, a court of equity will convert the holder into trustee of the true owner, and compel him to convey the legal title. This doctrine extends to the action of all officers having charge of proceedings for the alienation of any portion of the public domain. The parties actually entitled under the law cannot, because of its misconstruction by those officers, be deprived of their rights. Shepley v. Cowan, 91 U. S., 330 [XXIII., 424]; Moore v. Robbins, 96 Id., 530

[XXIV., 848]; Quinby v. Conlan, 104 Id., 420 | 4321, Division B, granted to Charles Graebe and

[XXVI., 800]; Smelting Co. v. Kemp, Id., 636
[XXVI., 875].

Charles Liebermann, April 4, 1871, for an improve-
ment in dyes or coloring matter from anthracine,
the original patent, No. 95465, having been granted
to them, October 5, 1869, namely: "Artificial alizar-
ine, produced from anthracine or its derivatives, by
either of the methods herein described or by any
other method which will produce a like result," is
construed so broadly as to cover a dye-stuff, im-
ported from Europe, made by a process not shown
to be the same as that described in No. 4321, and con-
taining large proportions of coloring matters not
It follows, from the views expressed, that the de-shown to be found to any practically useful extent
cree of the court below must be reversed and the in the alizarine of the process of No. 4321, such as
cause remanded with instructions to overrule the isopurpurine or anthrapurpurine, it is wider in its
scope than the original actual invention of the pa-
demurrer and to take further proceedings in ac-tentees and wider than anything indicated in the
cordance with this opinion, the plaintiff to have specification of the original patent. If the claim is
to be construed so as to cover only the product
leave to amend his bill and the defendants to an
which the process described in it will produce, it
does not cover a different product, which cannot be
practically produced by that process.
[No. 282.]

[292] The bill is open to the objection that it does not allege that the heirs of Ballantine have acted upon the award, and purchased the lands in controversy; but the counsel makes no point upon this omission and admits that they have, in fact, purchased.

swer.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.
Mr. Chief Justice Waite, dissenting:

I am unable to agree to this judgment. In
my opinion the Act of March 3, 1877, granted

a new right to the occupants of the Hot Springs

Reservation and provided a special tribunal for
the settlement of all controversies between con-

Argued Mar. 26, 27,28,1884. Decided Apr. 14, 1884.

A states for the Southern District of New York.

PPEAL from the Circuit Court of the United

The history and facts of the case fully appear in the opinion of the court.

Mr.Edward N.Dickerson,for appellants. Messrs. Benj. F. Thurston, J. Van Santvoord and Livingston Gifford, for appellee.

flicting claimants. The right and the remedy were created by the same statute and, consequently, the remedy thus specially provided was exclusive of all others. No provision was made for a review of the decisions of the tribunal. Its determination, therefore, of all ques- Mr. Justice Blatchford delivered the opintions arising under the jurisdiction must neces-ion of the court: sarily be conclusive, and not open to attack col- This is a suit in equity, brought in the Cirlaterally. It seems to me there is a very broad cuit Court of the United States for the Southdistinction between this case and that of John-ern District of New York, by Badische Anilin son v. Towsley, 13 Wall., 72 [80 U. S., XX., and Soda Fabrik, a Corporation organized un485], and others of that class. Here a special der the laws of the Grand Duchy of Baden, in tribunal has been created for a special purpose. the Empire of Germany, against the appellants, It has been clothed with power to compel the for the infringement of re-issued letters patent attendance of witnesses and to finally determine No. 4321, granted to Charles Graebe, of Frankthe right of each claimant or occupant to pur-fort-on-the-Main, and Charles Lieberman, of chase from the United States, under the pro- Berlin, Prussia, April 4, 1871, for an improvevisions of the Act of Congress, the ground he ment in dyes or coloring matter from anthraoccupies or claims. The duties of the tribunal cine. The original patent, No. 95465, was are judicial in their character and their decis-granted to the same persons, October 5, 1869, ions evidently intended to be binding on the for an improved process of preparing alizarine. parties. The question now is not whether, if Rec- It was re-issued on two separate amended specitor had kept away from the tribunal and Gib-fications, Division A and Division B. No. 4321 bon had got a title under his occupancy, he is Division B. could be charged as trustee for Rector on account of his tenancy, but whether, having appeared before the tribunal and been beaten in a [293] contest with Gibbon, on that identical question, Rector can in this suit correct the errors of the tribunal in its decision. I think he cannot. If he can it is difficult to see why all the decisions of the tribunal are not open to revision by the courts.

The following is the text of the specifications of No. 4321 and No. 95465. Reading in it what is outside of brackets and what is inside of brackets, omitting what is in italics, gives the specification of No. 4321. Reading what is outside of brackets, including what is in italics, omitting what is inside of brackets, gives the specification of the original patent: "Be it known, that we, Charles Graebe, of Frankforton-the-Main, and Charles Lieberman, of Berlin, in the Kingdom of Prussia, have invented a [new and useful improvement in the manufacture of alizarine] process for preparing alizarine James H. McKenney, Clerk, Sup. Court, U. S. from anthracine; and we do hereby declare the

I am authorized to say that Justices Harlan, Woods and Blatchford concur with me in this opinion.

True copy. Test:

following to be a full, clear and exact description thereof, which will enable those skilled in the art to make and use the same. We first change the anthracine into anthrakinon (oxanthracine), a substance known to [the] chemists by the investigations of Anderson. For this cine, two and half parts, by weight, of bichropurpose we take one part, by weight, of anthramate of [potash] potassa, and ten or fifteen parts, by weight, of concentrated acetic acid, and we heat these substances together in a ves

Having thus described the nature of our invention
and the manner of performing and carrying out
the same, we would have it understood that we do
not confine ourselves to the exact details hereinbe
fore given."
"Arti-

The claim of No. 4321 is as follows:
ficial alizarine, produced from anthracine or its
derivatives by either of the methods herein de-
scribed, or by any other method which will pro-
duce a like result." The claim of the original
patent was in these words: "The within de-

by first preparing bibromanthrakinon or bichlo-
ranthrakinon, and then converting these sub-
stances into alizarine, substantially as above set
forth."

sel, either of glass or clay, to about 100° centigrade to 120° centigrade, till nearly all of the [295] bichromate of [potash] potassa is dissolved and the liquid has acquired a deep green color. We then recover the acetic acid not consumed in the reaction by distillation and treat the residuum with water to remove the chromic acetate. From the insoluble mass, we obtain the anthrakinon in a pure state by distilling the whole from a retort of glass or iron. In the place of the acetic acid, sulphuric acid, diluted with one or two parts of water, may be employed. In-scribed process for the production of alizarine, stead of the method just described, we also employ the following one: we heat the anthracine in a vessel of glass or of clay with ten parts of concentrated acetic acid, to about 100° centigrade, or a little higher, and we add nitric acid The bill of complaint alleges that No. 4321 of about 1.3 specific gravity, in small portions, was issued for a distinct and separate part of till the violent reaction ceases. After distillation the same invention, on a corrected specification, of the acetic acid, we purify the residuum, as on the surrender of No. 95465; and No. 4321 before. We then convert the anthrakinon, pre- states on its face that, on such surrender, new pared by one of the methods described, into bi- letters were ordered to issue on two separate bromanthrakinon. For this purpose we take amended specifications. But Division A, No. three parts of anthrakinon, five parts of bromine, 4320, is not in the record before us. The bill and we heat these substances for ten or twelve alleges the infringement to have been commithours, or until nearly the whole of the bromine ted by making, selling or using the invention has disappeared, to a temperature, by prefer- or dyes containing it. The answer denies the ence, of about 100° centigrade, in a suitable manufacture of alizarine, but avers that the declose vessel, either of glass or enameled or glazed fendants have sold in the United States alizairon, which is capable of sustaining the pressure rine lawfully made in Germany, and imported [which is] generated by the reaction. The ap- as an article of commerce, which was not made paratus is then allowed to cool. It is opened by the process described in No. 4321, or any in order to permit the escape of [bromic] hydro- process substantially the same, but was made bromic acid, which can be recovered by absorp-according to processes which were invented subtion either in water or in an alkaline solution. sequently to the date of No. 95465, and are the We purify the bibromanthrakinon remaining subject of different and independent letters pain the vessel, as a solid substance, by crystalli- tent. The answer also avers "That alizarine is [297] zation from benzole. Instead of the method a natural product, having a well known definite above described for preparing bibromanthra- constitution; that it is not a composition of matkinon, we also employ the following: we con- ter, within the meaning of the statute, but has vert first the anthracine into a bromine deriva- been well known in the arts, from time immetive, into the tetrabromanthracine, known to morial, for the purpose of dyeing, and has genchemists by the investigations of Anderson. erally been extracted from madder root,' and We take one part of this tetrabromanthracine, from other analogous products, by various and we heat it in a retort of glass or clay processes suitable for that purpose; that, therewith about five parts of nitric acid of about 1.3 fore, there can be no valid patent granted for specific gravity to 100° centigrade, as long as alizarine; and that No. 4321 is void." The anvapors of bromine are evolved. We distill off swer refers to "Watts Chemical Dictionary, the greater portion of the nitric acid, wash the published before 1869, under the title Alizarine, residuum with water, and purify it by crystal- to show that alizarine was well known long belization from benzole. We thus receive the bi-fore the said patent;" and also sets up that the bromanthrakinon as before, in the form of a patent had expired because prior patents grantyellow, solid mass. We then convert the bibro-ed to the patentees in foreign countries, for the manthrakinon into alizarine. For this purpose same invention had expired. we take one part of bibromanthrakinon, two to three parts of caustic potash or soda, and so much water as is necessary to dissolve the alkali, [296] and we heat the whole in an open vessel of glass, glazed or enameled iron, or silver, to about 180° to 260° centigrade for one hour, or [till] until the mass has acquired a deep blue color. We then dissolve it in water and filter the violet solution, from which we precipitate the alizarine by an inorganic or organic acid. We collect the yellow flocks of alizarine thus obtained on a filter and wash them with water. By these methods we receive the alizarine in a form in which it can be employed in the same manner as the different preparations from madder. In This re-issued patent No. 4321 has been adthe place of bromine, chlorine [also] may also judicated in the circuit courts in several cases. be employed, but not so conveniently, as the It was before the Circuit Court in Massachureactions above described are more difficult to setts, in February, 1878, and the decision of Judge accomplish with chlorine than with bromine. | Shepley is in Badische Anilin and Soda Fabrik

Proofs were taken and, on final hearing, the Circuit Court decreed that No. 4321 was valid and had been infringed, and ordered a reference as to profits and damages and a perpetual injunction against the making, using or selling of the article designated in No.4321 artificial alizarine, or dyes containing the invention described in and secured by No. 4321. Afterwards, there was a final decree against the defendants for $13,326.65 and costs, of which $12,871.86 was for profits made by the defendants, "by the sale of artificial alizarine, in infringement" of No. 4321. From this decree the defendants have appealed.