text:
Ashcroft v. Railroad Company

APPEAL from the Circuit Court of the United States for the District of Massachusetts.

English letters-patent No. 1830, dated July 21, 1863, and sealed Jan. 19, 1864, were granted to William Naylor, of England, for improvements in safety-valves and in apparatus connected therewith. The specification describes his invention as consisting, 'when using a spring for resisting the valve from opening, in the employment of a lever of the first order, one end resting by a suitable pin upon the safety-valve, and the other end of the lever resting upon the spring, the end resting upon the spring being bent downwards to an angle of about forty-five degrees from the fulcrum, so that when the valve is raised by the steam the other end of the lever is depressed upon the spring downwards, and at the same time is moved inwards towards the fulcrum, thus virtually shortening the end of the lever, and thereby counteracting the additional load upon the valve as it is raised from its seat by the greater amount of compression put upon the spring.' He also describes a contrivance consisting of a lateral branch or escape-passage for a portion of the steam after it has passed the valve, the valve being made to project over the edges of the exit-passage, the projecting edges of the valve being made to curve slightly downwards, so that the steam on issuing between the valve and its seat will impinge against the curved projecting portion of the valve, and a portion of it be directed downwards into the annular chamber surrounding the central passage, which chamber communicates at once with the branch exit-pipe, whilst the other portion of the steam ascends past the edges of the valve. He then says, 'By this means I am enabled to avail myself of the recoil action of the steam against the valve, for the purpose of facilitating the further lifting of such valve when once opened; but I wish it to be understood that I lay no claim to such recoil action, nor to the extension of the valve laterally beyond its seat.'

The specification of English letters-patent No. 1038, granted to Charles Beyer for improvements in safety-valves, dated April 25, 1863, and sealed Oct. 16, 1863, describes his invention as consisting 'in forming a flange around the valve, commencing at the outer edge of the valve facing, which flange is under-cut and concave in shape, and the concave side is towards the seating of the valve, which has also a flange upon it, commencing at the outer edge of the valve-seating, but the upper surface of this flange is convex, and corresponds nearly to the concave surface of the flange upon the valve. There is a slight space between the concave and convex surfaces of the two flanges, which diminishes towards the outer edges of the flanges. When the steam begins to escape from between the surfaces of the valve, it gets between the concave and convex surfaces of the two flanges, and its force thus acts upon a larger area, and reacts upon the concave surface of the valve, and causes it to open to a greater extent than the ordinary valve.'

Letters-patent of the United States No. 58,962 were issued, Oct. 16, 1866, to said Naylor for an improvement in safety-valves. The description of his invention in the specification is substantially the same as in that of his English patent. Nothing is said, however, of availing himself of the 'recoil action of the steam against the valve, for the purpose of facilitating the further lifting of such valve when once opened;' nor is there any disclaimer, as in the English specification, of the recoil action and the extension of the valve laterally beyond its seat. The claim of the specification was the arrangement in safety-valves 'of bent levers of the first order, acting in combination with a spring or springs, the whole operating in the manner and for the purpose set forth.' Sept. 8, 1869, Naylor assigned his letters-patent to Edward H. Ashcroft, who thereupon surrendered them for reissue. The specification of the reissued letters to Ashcroft, as the assignee of Naylor, which are No. 3,727, and bear date Nov. 9, 1869, declares that the main object to be attained by the invention, viz. the counteracting the additional load upon the valve as it is raised from its seat produced by the increased resistance of the spring, 'is accomplished by using a lever of the first order, one end resting by a suitable pin upon the safety-valve, constructed and arranged as hereinafter described, and the other end of the lever resting upon a spring; but, in lieu of having this lever straight or nearly so, I propose to bend downward that end which is acted upon by the spring to an angle of about forty-five degrees, so that when the valve is raised by the steam the other end of the lever is depressed upon or against the spring downward, and at the same time is moved inward toward the fulcrum, thus virtually shortening the end of the lever, and thereby counteracting the additional load upon the valve as it is raised from its seat by the greater amount of compression or tension, as the case may be, which is put upon the spring; and my invention also consists in the valve C, constructed with projecting downward-curved lip or periphery, and in the annular chamber D, surrounding the valve-seat, whereby, as the spring is compressed by the lifting of the valve, the projecting lip of the valve and the annular recess are available in causing an increased pressure on the valve, and thus overcome the increased resistance of the spring, due to its compression, as hereinafter more fully set forth.

'Figs. 1 and 2 represent, respectively, a vertical section and front elevation of a safety-valve constructed according to my invention.

'A is the main thoroughfare, leading directly from the boiler; B, a lateral branch or escape-passage for a portion of the steam after it has passed the valve C. I make this valve to project over the edges of the exit-passage A, and to curve its projecting edges slightly downward, as shown in Fig. 1, so that the steam, on issuing between the valve and its seat, will impinge against the curved projecting portion of the valve, and a portion of it will be directed downward into the annular chamber D, surrounding the central passage A, and communicating with the exit-pipe B, while the other portion of the steam ascends past the edge of the valve.'

The claims of the reissue are:--

'1. The combination and arrangement, with the hereinbefore-described safety-valve, of bent levers of the first order, and the spring or springs, in the manner substantially as hereinbefore set forth.

'2. The safety-valve C, with its overhanging, downward-curved lip or periphery, and annular recess D, substantially as herein shown and described, and for the purpose set forth.

'3. The annular recess D, surrounding the valve-seat, substantially as herein set forth.

'4. The combination of the valve C and the annular recess D, as herein set forth, and for the purpose described.'

Figs. 1 and 2 are as follows:-- Dec. 14, 1869, this bill was filed by Ashcroft, to enjoin the alleged infringement by the Boston and Lowell Railroad Company of his reissued letters. The answer denied that they were for the same invention as that described in the original letters, that Naylor was the first and original inventor of the improvements specified in the reissued letters, or that they embrace the valve used by the company; and averred that the valves used by it were described by and embraced in letters-patent of a prior date to that of Naylor's invention, and were made under letters-patent No. 58,294, granted by the United States, Sept. 25, 1866, to George W. Richardson.

The specification of Richardson's patent describes his invention as follows:--

'E E is the valve seat.

'F F is the ground joint of the valve and seat.

'P is the countersink or centre upon which the point of the stud extending from the scale lever rests in the usual manner.

'The nature of my invention consists in increasing the area of the head of the common safety-valve outside of its ground joint, and terminating it in such a way as to form an increased resisting surface, against which the steam escaping from the generator shall act with additional force after lifting the valve from its seat at the ground joint; and so, by overcoming the rapidly increasing resistance of the spring or scales, insure the lifting of the valve still higher, thus affording so certain and free a passage for the steam to escape as effectually to prevent the bursting of the boiler or generator, even when the steam is shut off and damper left open.

'To enable others skilled in the art to make and use my invention, I will proceed to describe its construction and operation. To the head of the common safety-valve, indicated by all that portion of Fig. 2 lying within the second circle from the common centre, I add what is indicated by all that portion lying outside of the said circle, in about the proportion shown in the figure. A transverse vertical section of this added portion is indicated, in Fig. 4, by those portions of the figure lying outside of the dotted lines p p, p p, while all that portion lying within the dotted lines p p, p p indicates a transverse vertical section of the common safety-valve alone. This increased area may be made by adding to a safety-valve already in use, or by casting the whole entire.

'I terminate this addition to the head of the valve with a circular or annular flange or lip c c, which projects beyond the valve-seat E E, Fig. 3, and extends slightly below its outer edge, fitting loosely around it and forming the circular or annular chamber D D, whose transverse section, shown in the figure, may be of any desirable form or size. This flange or lip c c, fitting loosely around the valve-seat E E, is separated from it by about 1/64 th of an inch for an ordinary spring or balance. For a strong spring or balance this space should be diminished, and for a weak spring or balance it should be increased to regulate the escape of the steam as required. Instead of having the flange or lip c c project beyond, and extend below and around the outer edge of the valve-seat, as shown in Fig. 3, a similar result may be attained by having the valve-seat itself project beyond the outer edge of the valve-head and terminating it with a circular or annular flange or lip, extending slightly above and fitting loosely around the outer edge of the flange or lip c c of the valve-head; but I consider the construction shown in Fig. 3 preferable.

'With my improved safety-valve, constructed as now described, and attached to the generator in the usual way, the steam escaping in the direction indicated by the arrows in Fig. 3 first lifts the valve from its seat at the ground joint E F, and then, passing into the annular chamber D D, acts against the increased surface of the valve-head, and by this means, together with its reaction produced by being thrown downwards upon the valve-seat F E, it overcomes the rapidly increasing resistance of the spring or balance, lifts the valve still higher, and escapes freely into the open air until the pressure in the generator is reduced to the degree desired, when the valve will be immediately closed by the tension of the spring or balance. The escape of the steam, by means of this safety-valve, is so certain and free, that the pressure of the steam in the generator or boiler will not increase beyond the point or degree at which the valve is set to blow off.

'What I claim as my improvement, and desire to secure by letters-patent, is a safety-valve with the circular or annular flange or lip c c constructed in the manner, or substantially in the manner, shown, so as to operate as and for the purpose herein described.'

The drawings referred to in Richardson's specification are as follows:--

The court below, upon final hearing, dismissed the bill, upon the ground that there was no infringement. The complainant then appealed here.

Mr. Francis Forbes and Mr. Thomas William Clarke for the appellant.

Mr. Benjamin Dean and Mr. J. G. Abbott, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Ashcroft v. Railroad Company


text: Talk:Ashcroft v. Railroad Company

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:Ashcroft v. Railroad Company


text:
Ashcroft v. Railroad Company/Opinion of the Court

Causes of action arising under the patent laws are originally cognizable, as well in equity as at law, by the circuit courts, or the district courts having the power and jurisdiction of a circuit court, subject to the condition that the final judgment or decree in such a case may be removed here for re-examination.

Improvements were made by William Naylor in steam safety-valves, for which, on the 16th of October, 1866, he obtained letters-patent of the United States; and it appears that he subsequently assigned the patent to the complainant, and that the complainant, as such assignee, surrendered and obtained the reissued patent which is the foundation of the present suit. Wrongful infringement is charged, and the complainant prays for an account and for an injunction. Service was made; and the respondents appeared and set up certain defences in their answer, as follows: 1. That the reissued patent is not for the same invention as the original. 2. That the assignor of the complainant was not the original and first inventor of the improvement. 3. That the reissued patent does not cover and embrace the safety-valve used by the respondents. 4. That safety-valves such as are used by the respondents were described and patented in letters-patent granted prior to the patent and supposed invention of the assignor of the complainant, as alleged in the answer.

Proofs were taken, the parties heard, and the Circuit Court entered a final decree dismissing the bill of complaint.

Due appeal was taken by the complainant, and he assigns the following errors: 1. That the court erred in giving weight to the disclaimer of the supposed inventor, as set forth in his English patent. 2. That the court erred in ruling that the patent of the complainant must be limited to claims for a combination of the valve described in the specification, with the annular recess surrounding the central chamber, as explained in the court's opinion. 3. That the court erred in deciding that the assignor of the complainant did not invent the overhanging, downward-curved lip, and that he was not the first to use an annular chamber surrounding the valve-seat, into which a portion of the steam is deflected as it issues between the valve and the seat. 4. That the court erred in deciding that the valve used by the respondents is not within the complainant's reissued patent. 5. That the court erred in deciding that there is a substantial difference between the valve used by the respondents and the valve described in the complainant's reissued patent.

Preliminary to the investigation of the inquiries suggested in the errors assigned by the appellant, it becomes expedient to ascertain what is the construction of the patent described in the bill of complaint, and whether the same has been infringed by the respondents. Obvious convenience suggests that these two matters be first determined, for the plain reason that, if the proofs fail to establish the charge of infringement, most or all of the errors assigned will become immaterial in disposing of the case.

Persons seeking redress for the unlawful use of letters-patent are obliged to allege and prove that they, or those under whom they claim, are the original and first inventors of the improvement described in the patent, and that the same has been infringed by the party against whom the suit is brought. Both of those allegations must be proved by the party instituting the suit; but where he introduces the patent in evidence, it affords a prima facie presumption that the first allegation is true, and inasmuch as it is not controverted in the answer in this case, the finding in that regard must be in favor of the complainant.

Suppose that is so, still the charge of infringement is denied by the respondents, which issue cannot be satisfactorily determined without first ascertaining the true nature and character of the improvement secured to the complainant in his reissued letters-patent.

Three patents-one in England, two in the United States-were granted to the complainant or his assignor for the improvement which is the subject of the present controversy. Naylor, it is claimed, was the inventor of the patented improvement, and he took out his first patent in England, where he resided. As the patentee states, the invention relates to certain improvements in safety-valves, and consists, when using a spring for resisting the valve from opening, in the employment of a lever of the first order, one end resting by a suitable pin upon the safety-valve, and the other end of the lever resting upon the spring, the end resting upon the spring being bent downwards to an angle of about forty-five degrees from the fulcrum, so that when the valve is raised by the steam the other end of the lever is depressed upon the spring downwards, and at the same time is moved inwards towards the fulcrum, thus virtually shortening that end of the lever, and thereby counteracting the additional load upon the valve as it is raised from its seat by the greater amount of compression put upon the spring.

Exceptional modifications in certain features of the improvement are subsequently suggested, and then the patentee proceeds to explain the functions of the different devices by reference to the drawings, in the course of which he states that he prefers to make the valve project over the edges of the exit-passage and to curve the projecting edges of the valve slightly downwards, so that the steam on issuing between the valve and its seat will impinge against the curved projecting part of the valve, which will direct a portion of it downwards into the annular chamber surrounding the central passage, while the other portion of the steam ascends past the edges of the valves. By that means the patentee states that he is enabled to avail himself of the recoil action of the steam against the valve, for the purpose of facilitating the further lifting of the valve when once opened; but he adds, what it is important to notice, that he wishes it to be understood that he lays no claim to such recoil action, nor to the extension of the valve laterally beyond its seat.

Prior to that, a safety-valve of substantially the same mode of operation had been patented in the same country to Samuel Beyer, and the reasonable presumption is that the disclaimer was inserted in the patent subsequently granted, because it had been previously invented by another.

Letters-patent to Charles Beyer were sealed Oct. 16, 1863; and the patentee states that his invention consists in forming a flange round the valve, commencing at the outer edge of the valve-facing, which flange is under-cut and concave in shape, and that the concave side is towards the seating of the valve, which has also a flange upon it, commencing at the outer edge of the valve-seating, but that the upper surface of the flange is convex, and corresponds nearly to the concave surface of the flange upon the valve. There is a slight space between the concave and convex surfaces of the two flanges, which diminishes towards the outer edge of the same. When the steam begins to escape from between the surfaces of the valve, it gets between the concave and convex surfaces of the two flanges, and thus acts upon a larger area, and reacts upon the concave surface of the valve, and causes it to open to a greater extent than the ordinary safety-valve. Such a valve, the patentee states, will lift promptly when the required pressure is obtained, and will open to a much greater extent than the valve in common use prior to that invention. Extra pressure upon the valve will readily close it after it has lifted, but it does not shut self-acting till the pressure in the boiler has diminished several pounds below the pressure at which the valve was lifted.

Without more, these suggestions are sufficient to show that the Beyer patent, which antedates the invention of the complainant, contains substantially the same mode of operation to produce the recoil action of the steam as that disclaimed in the English patent, and shows that the disclaimer was in all probability made because it was well known to the patentee and to the officials who issued the letters-patent that another was the original and first inventor of the patented valve. Nothing of the kind is embraced in the claims of the English patent granted to the patentee, nor is there any thing in the specification which has any tendency to show that the patentee ever supposed that he invented that feature of the improved valve which he disclaimed.

Two patents for the improvement have been granted in this country,-one, the original, to the alleged inventor, and the reissued patent to the complainant, on which the suit is founded. Neither of them contains any disclaimer of the kind mentioned in the English patent, though it is conceded that both the original and the reissued patent were granted for the same invention as the English patent. Nor could that concession properly be withheld, as it is as certain as truth that the feature of the steam-valve in question was fully and clearly described in that specification, and that the patentee stated that he wished it to be understood that he did not lay any claim to the recoil action, nor to the extension of the valve laterally beyond its seat.

Explicit as that disclaimer is, still it is assigned for error by the complainant that the circuit judge erred in giving weight to it; but the court here is of the opinion that there is no merit in that objection. Instead of that, the court decides that the patent in suit, in order that it may be held valid, must be construed in view of the disclaimer contained in that patent, and be limited to the particular devices shown in the specification for effecting such recoil action of the steam.

Taken as a whole, the facts show conclusively that the assignor of the complainant was not the first person to devise means for using the recoil action of steam to assist in lifting the seat of the steam-valve for the purpose described, and it follows that the patent in suit must be limited to what he actually invented, which is the devices, shown in the specification and drawings, to enable the party to avail himself of such recoil action.

Decided support to that view is found in the specification of the Beyer patent, which shows that the apparatus in question had an overhanging, downward-curved lip, and an annular recess into which the steam was directed downwards on issuing between the valve and its seat, while a portion of the steam impinged against the projecting part of the valve.

Viewed in the light of that suggestion, it is clear, as decided by the circuit judge, that the assignee of the invention in controversy cannot claim that Naylor was the original and first inventor of that feature of the improvement, nor can it properly be claimed that he invented the combination in a spring safety-valve of every form of a projecting, overhanging, downward-curved lip in such a device, with the annular recess surrounding the valve-seat, into which a portion of the steam is deflected as it issues between the valve and its seat. Limited in that way as the patent must be, in order that it may be upheld as valid, the question remains whether it has been infringed by the respondents.

Throughout, the steam-valve used by the respondents is the valve patented to George W. Richardson, whose patent makes a part of the record. He obtained his patent Sept. 25, 1866, nearly a month earlier than the date of the original American patent granted to Naylor. His invention, as he describes it, consists in increasing the area of the head of the common safety-valve outside of its ground joint, and terminating it in such a way as to form an increased resisting surface, against which the steam escaping from the generator shall act with additional force after lifting the valve from its seat at the ground joint, and so by overcoming the rapidly increasing resistance of the spring or scales will insure the lifting of the valve still higher, thus affording so certain and free a passage for the steam to escape as effectually to prevent the bursting of the boiler or generator, even when the steam is shut off and the damper left open.

Safety-valves previously in use were not suited to accomplish what was desired, which was to open for the purpose of relieving the boiler, and then to close again at a pressure as nearly as possible equal to that at which the valve opened. Sufficient appears to show that Richardson so far accomplished that purpose as to invent a valve which would open at the given pressure to which it was adjusted, and relieve the boiler, and then close again when the pressure was reduced about two and one-half pounds to the inch, even when the pressure in the generator was one hundred pounds to the same extent of surface, which made it in practice a useful spring safety-valve, as proved by the fact that it went almost immediately into general use.

Other inventors prior in date to the Naylor invention attempted to make the desired improvement in the common safety-valve, and it is evident from what appears in the record that the efforts of one or more of them besides Beyer were attended with more or less success; but it is unnecessary to enter into those details, as it is obvious, from what appears in the Beyer patent, that Naylor did not invent the overhanging, downward-curved lip of the improved valve, nor was he the first to use an annular chamber surrounding the valve-seat, into which a portion of the steam is deflected as it issues between the valve and its seat; and the court here concurs with the circuit judge that his patent must be limited to the combination of the other elements with such an annular recess as he has described, and operating in the described manner, so far as such recess separately considered or in combination differs in construction and mode of operation from the patented steam-valves which preceded it, as shown in the evidence giving the antecedent state of the art. It follows, therefore, that the claims of the reissued patent in suit cannot be held to cover the safety-valve used by the respondents, which in its construction and mode of operation is substantially different, as appears from a comparison of the models and an inspection of the drawings, as well as from the description given of the same in the respective specifications.

Support to that view of a decisive character is also derived from the testimony of the expert witnesses on both sides. Enough appears in the explanations of the specification and the expert testimony to satisfy the court that it was the intention of the inventor of the complainant's valve to use the impact of the issuing steam upon the concave lip of the valve to assist in lifting it without other aid, except so far as it was helped by the diminution of atmospheric pressure on the top of the valve, consequent upon the issuing of a portion of the steam in an upward direction around the periphery of the valve, the annular chamber into which the steam is discharged on leaving the valve serving no other purpose than that of a conduit for the steam, if the valve is constructed in accordance with the drawings of the original patent.

Examined in the light of these suggestions, it is plain that the steam-valve used by the respondents cannot be held to be an infringement of that described in the specification of either of the three patents representing the invention claimed by the complainant.

Coming to the specification that describes the steam-valve used by the respondents, it will at once be seen that its construction and mode of operation is substantially different in important particulars, as follows: When the valve opens, the steam expands and flows into the annular space around the ground joint. Its free escape, which might otherwise be too free, is prevented by a stricture or narrow space formed by the outer edge of the lip and the valve-seat. By these means the steam escaping from the valve is made to act, by its expansive force, upon an additional area outside of the device, as ordinarily constructed, to assist in raising the valve, the stricture being enlarged as the valve is lifted from its seat, and varying in size as the quantity of the issuing steam increases or diminishes.

Important functions, not very dissimilar in the effect produced, are performed by the two patented valves in controversy; but the means shown in the respective specifications, and the mode of operation described to produce the effect, are substantially different in material respects, which shows to a demonstration that the complainant cannot prevail, unless it can be held that his assignor invented the overhanging, downward-curved lip, and that he was the first to use an annular chamber surrounding the valve-seat, into which a portion of the steam is deflected as it issues between the valve and its seat. Neither of those conditions can be found in favor of the complainant, and of course it cannot be held that the respondents have infringed his patent.

Confirmation of that conclusion of the most decisive character is found in the testimony of the experts, which will not be reproduced, as it would extend the opinion beyond a reasonable length.

Experiments almost without number were made by the experts, and the court is furnished with very many exhibits intended to explain the construction and mode of operation of the different steam-valves described in the various patents given in evidence in the case; but the court has not found it necessary to enter into those details, preferring to rest the decision upon the construction of the complainant's patent and his failure to show that it has been infringed by the respondents.

Decree affirmed.


text: Talk:Ashcroft v. Railroad Company/Opinion of the Court


text:
McMicken v. United States

APPEAL from the District Court of the United States for the District of Louisiana.

The facts are stated in the opinion of the court.

Mr. Willis Drummond and Mr. Robert H. Bradford for the appellant.

The Solicitor-General, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: McMicken v. United States


text: Talk:McMicken v. United States

title: Talk:McMicken v. United States


text:
McMicken v. United States/Opinion of the Court

The claim to lands in this case originated as follows: On the 17th of December, 1798, William Coleman, an inhabitant of New Feliciana, within the bounds of the present State of Louisiana, east of the Mississippi River, applied to the Spanish governor-general for a grant of six hundred and ten arpents of land, for a plantation and settlement, in the district of Baton Rouge, three miles from the Mississippi. A certificate of the local surveyor was annexed to the application, certifying that there were vacant lands in the district of St. Helena, on the west bank of the Tangipahoa River, beginning at the thirty-first parallel of latitude (the boundary line of the United States), in which could be found the arpents front which the petitioner asked for, excluding whatever might be in the possession of actual settlers. The place thus indicated was about fifty miles east of the Mississippi. To this application Grandpr e, the surveyor of the district, added a further certificate, dated Dec. 22, 1798, and addressed to the governor, by which he stated that four hundred and ten arpents might be conceded in the place indicated by the local surveyor. Thereupon the governor, De Lemos, on the 2d of January, 1799, issued a warrant or order of survey, in the following terms (as translated):--

'NEW ORLEANS, Jan. 2, 1799.

'The surveyor of this province, Don Carlos Trudeau, shall locate this interested party on four hundred and ten arpents of land, front, in the place indicated in the foregoing certificate, they being vacant, and thereby not causing injury to any one, with the express condition to make the high-road and do the usual clearing of timber in the absolutely fixed limit in one year; and that this concession is to remain null and void if at the expiration of the precise space of three years the land shall not be found settled upon, and to not be able to alienate it within the same three years, under which supposition there shall be carried out uninterruptedly the proceedings of the survey, which he (the surveyor) shall transmit to me, so as to provide the interested party with the corresponding title-papers in due form.

(Signed) 'MANUEL GAYOSO DE LEMOS.'

This is the only title presented, and neither survey nor settlement, nor improvement of any kind, appears ever to have been made on the part of the petitioner or any one claiming under him. The only thing done by him in that direction was to procure from Pintado, the local Spanish surveyor at Baton Rouge, on the 26th of February, 1806, after the country had been ceded to the United States, but before this part had been surrendered by Spain, an authority to one Ira C. Kneeland, a deputy surveyor, to survey the tract according to certain general instructions (which do not appear), specifying, however, that it was understood that the warrant was for a certain number of arpents in front, and that the depth ought to be forty arpents, or four hundred perches of Paris; which would make the tract contain sixteen thousand four hundred arpents, the quantity now sought to be recovered of the United States. But nothing was ever done by Kneeland, and the prosecution of the grant seems to have been abandoned by Coleman and his assigns until long afterwards. Grandpr e himself, in 1806 (having become governor), issued a warrant for a thousand arpents, on a portion of the tract, to one Robert Yarr, who entered upon and settled the same; and his title was subsequently confirmed by the United States. And before the country was occupied by our government, actual settlers had become possessed of the whole tract, who were subsequently confirmed in their holdings by the act of March 3, 1819, upon the report of the commissioners who had been appointed to investigate the title to lands in that region. Most of the claims of these settlers were presented to Commissioner Cosby in 1812, 1813, and 1814, he being then engaged in ascertaining all claims to lands in the district west of Pearl River. His report was made in the early part of 1815 (Amer. State Papers, Public Lands, vol. iii. pp. 39-76); but no claim seems to have been presented by Coleman for the lands in question.

On the 16th of September, 1814, he assigned his right to the land to one Charles McMicken, under whom the appellant claims as devisee. But neither did McMicken present any claim to the commissioner.

Under the various laws extending the time for presenting claims several other reports were subsequently made by the commissioners for the St. Helena district west of Pearl River; and finally, under an act passed May 26, 1824 (4 Stat. 59), additional claims were received in that year, and a report was made in the January following, in which the claim in question first comes to notice. The petition in this case states that it was presented to the commissioners on the 26th of December, 1824. With various others, it was rejected by them on the ground that 'the claimants had not complied with the requisitions of the law as regards either habitation or cultivation.' Amer. State Papers, Public Lands, vol. iv. pp. 438, 443. This report was confirmed by Congress by the act of May 4, 1826. 4 Stat. 159. In 1846, McMicken instituted suit in the United States District Court of Louisiana, against the United States, under the provisions of the act of June 17, 1844, for the confirmation of the grant; but this suit was not prosecuted when called up for trial, and was dismissed, and judgment entered for the United States. In March, 1873, the present suit was brought under the act of June 22, 1860, entitled 'An Act for the final adjustment of private land-claims in the States of Florida, Louisiana, and Missouri, and for other purposes.' 12 id. 85. A decree was rendered in favor of the United States. McMicken thereupon appealed to this court.

Two questions arise in the case: First, whether the petitioner has shown any derivation of title to himself; and, secondly, whether the claim is a valid one.

The petitioner claims as devisee of Charles McMicken, under his will, bearing date in 1855, which is set out in full in the record. An inspection of this will shows that the tract in question was not named in it, nor devised in any way. It mentions various other tracts in Louisiana belonging to the testator, but not this one. It would seem that McMicken had abandoned all idea of establishing the validity of the claim. As the appellant does not pretend to have any other title than that of devisee under this will, it is difficult to see how his petition can be sustained. If this were an action of ejectment, there could be no question on the subject. But it is contended on the part of the petitioner that whether his own title be properly deraigned or not, the court, if satisfied of the validity of McMicken's title, might make a decree in favor of his legal representatives, for the benefit of whom it might concern. A decree in this form is often made against the government in these land cases, when a title is satisfactorily established, and the parties prosecuting it connect themselves in some way with it, so as to show some real interest to be protected. Castro v. Hendricks, 23 How. 438; Brown v. Brackett, 21 Wall. 387. But a mere stranger to the title can hardly ask the court to go that length. It is not for every one who chooses to take up the prosecution of such claims, without any connection whatever with the title sought to be established.

But the more important question in this case is that relating to the validity of McMicken's title to the land.

We do not understand that the act of 1860 was intended to make any claims valid which would not have been so before, if the government making the grant had had the right to make it. The objection of want of title in the granting power was removed by the act, as to all grants made by a government in possession which were otherwise sustainable on the principles of justice and equity; the time for presenting claims was opened and extended; and actual surveys were dispensed with where the land could be otherwise identified. These were the principal remedial provisions of the act so far as relates to the validity of titles. Claims invalid from intrinsic defects in 1815 or 1825 are not helped by the act of 1860. The utmost that our treaty stipulations ever required was, that we should sustain titles which would have been sustained by the government from which our title to the territory was derived. Nothing more could be fairly asked, and we think that nothing more was intended by Congress to be given, except to make provision (as it did from time to time) in favor of actual settlers.

The question then arises, whether the decision of the commissioners in 1824, with regard to this claim, was not correct. The title was nothing but a warrant or permit to survey, occupy, and improve the land, with a view to a grant when this should be done, and with an express condition to be void if not done within three years. Such warrants or permits have invariably been respected by our government, whenever there has appeared any bona fide attempt to perform the conditions, or any plausible excuse for their non-performance. But where no such attempt has been made, and no excuse is offered for not making it, the claim has been disallowed. Under such circumstances it would be simply asking the government for a gratuity, a donation without the slightest consideration, to seek a grant of the land. The government does not stand upon formal conditions. It does not demand that there should have been an actual survey, if the land can be otherwise identified. The act of 1860 expressly gives relief not only in case of 'orders of survey duly executed,' but where there has been 'any other mode of investiture of title, by separation of the land from the mass of the public domain, either by actual survey, or definition of fixed natural and ascertainable boundaries, or initial points, courses, and distances, by the competent authority prior to the cession to the United States.' The present case may perhaps come within this category. The description in the warrant, aided by the usages of the Spanish government with regard to surveys in Louisiana, may admit of definite identification on the ground both as to location and quantity. But the main defect still remains,-the absence of any attempt at settlement and cultivation. These conditions have always been regarded as material by the various commissioners appointed to investigate these titles, and their decisions on the subject have been uniformly confirmed by Congress. They seem to be in accord with the laws and usages of the Spanish government; which laws and usages, from the first, were adopted as the proper criterion for determining the validity of titles emanating from that government.

These propositions will be corroborated by a reference to the laws which have been passed and the proceedings which have been taken in relation to French and Spanish titles in Louisiana.

That province was acquired by the treaty with France of April 30, 1803. Spain had ceded it to France by the treaty of St. Ildefonso, on the 1st of October, 1800; but did not deliver possession of it until after it was ceded to the United States. That portion of the territory west of the Mississippi, including New Orleans, was surrendered to our government on the 20th of December, 1803; but Spain retained possession of the remainder, east of the Mississippi, for several years longer, under the pretence that it belonged to West Florida, and made many grants of land in that time. The United States did not acquire entire possession of the country till 1813, though portions of it were occupied in 1810. Amer. State Papers, For. Relations, vol. ii. pp. 582, 575; vol. iii. p. 397; and Act of Congress, Feb. 12, 1813, 3 Stat. 472. The treaty with France required that the inhabitants should be protected in their liberty, property, and religion. In carrying out this stipulation the United States repudiated the grants of land made by the Spanish government subsequent to the treaty of St. Ildefonso, except when made in accordance with the known laws, usages, and customs of that government; which laws, usages, and customs had special reference to the colonization and settlement of the lands, and not to a sale of them for the purposes of revenue or speculation. Whilst repudiating the grants referred to, as of no binding obligation upon the United States, a liberal policy was adopted towards the grantees wherever they had actually settled upon and cultivated their lands, and had thus in good faith complied, or attempted to comply, with the conditions upon which they were made. In carrying out this policy, it will be seen that all imperfect titles, such as orders of survey, permissions to settle, and the like, which had annexed to them the condition of settlement and cultivation of the lands as a prerequisite to a complete title, were rejected, if no attempt was made by the claimants to perform those conditions.

By the act of March 26, 1804, by which the ceded territory was organized into the territories of Orleans and Louisiana, whilst it was expressly declared that all grants made by the Spanish government, and all proceedings looking to a grant, made or taken after Oct. 1, 1800, should be deemed absolutely void, a provision was inserted for the confirmation, to the extent of one square mile, of all regular grants made to actual settlers, and of all bona fide acts and proceedings done by them to obtain grants, if the settlements were actually made prior to Dec. 20, 1803.

By the act of March 2, 1805, actual settlers who had only incomplete titles from the French and Spanish governments, issued prior to Oct. 1, 1800, and who actually inhabited and cultivated their lands on that day, were confirmed in their titles thereto, provided that they were heads of families or of age, and had fulfilled the conditions and terms on which the completion of the grants was made to depend. The act went further, and declared that all who, prior to Dec. 20, 1803, with the permission of the proper Spanish officers, and in conformity with the laws and usages of the Spanish government, had made an actual settlement of any tract, and did then actually inhabit and cultivate the same, should have such lands to the extent of one mile square to each person, with the customary addition for a wife and family. By the act of April 21, 1806, permission to settle was to be presumed, if the party had commenced an actual settlement prior to Oct. 1, 1800, and had continued actually to inhabit and cultivate the land for three years prior to Dec. 20, 1803.

The act of March 23, 1807, further provided that any person who, on the 20th of December, 1803, had for ten consecutive years been in possession of a tract of land not exceeding two thousand acres, and not claimed by others, and was on that day resident in the territory, and had still possession, should be confirmed in his title thereto. The fourth section of this act gave the commissioners appointed, or to be appointed, for the purpose of ascertaining the rights of persons claiming land in the territory full power to decide, according to the laws and established usages and customs of the French and Spanish governments, upon all claims to lands in their respective districts, when made by those who were inhabitants of Louisiana on the 20th of December, 1803, and for a tract not exceeding one league square. By the eighth section they were to arrange the claims presented to them in three classes, showing: first, claims which, in their opinion, ought to be confirmed in conformity with the provisions of previous acts; secondly, claims which, though not embraced by those provisions, ought nevertheless, in the opinion of the commissioners, to be confirmed in conformity with the laws, usages, and customs of the Spanish government; thirdly, claims which neither were embraced in the provisions of previous acts, nor ought, in the opinion of the commissioners, to be confirmed in conformity with the laws, usages, and customs of the Spanish government.

By the act of April 25, 1812, that part of the ceded territory lying between the Mississippi and Perdido Rivers was divided into two land districts, one on the east, the other on the west side of Pearl River; and all persons claiming lands by virtue of grant, order of survey, or other evidence of claim derived from the French, British, or Spanish governments were required to deliver the same to the commissioner of the proper district, to be examined and recorded. By the fifth section of this act the said commissioners were empowered to inquire into the justice and validity of the claims presented, and to this end to ascertain in each case whether the lands claimed had been inhabited and cultivated; when surveyed, and by whom and what authority; and into every other matter respecting the claims which might affect the justice and validity thereof: and all evidence thus obtained was to be recorded. These claims they were to arrange into classes, and report them to the Secretary of the Treasury; and they were also to report a list of all actual settlers on the lands not having any claims derived from prior governments, and the time when the settlements were made.

In pursuance of this act, and others in continuation of it, reports were made from time to time by commissioners appointed for the purpose. The first report from the St. Helena district, on the west of the Pearl River (where the lands in question are situated), was made in 1815. Amer. State Papers, Public Lands, vol. iii. pp. 39-76. Others were made Dec. 24, 1819, Nov. 18, 1820, July 24, 1821, Jan. 19, 1825, and Dec. 8, 1825. Id., vol. iii. pp. 436, 465, 505; vol. iv. pp. 538, 473. These reports presented classified lists or registers of the claims presented, as required by the act. In the report for 1815, for example, Register A exhibited a list of claims founded on complete grants derived from either the French, British, or Spanish governments, which, in the opinion of the commissioner, were valid agreeably to the laws, usages, or customs of such governments. This list embraced not only grants made before Oct. 1, 1800, but also grants made after that date whilst Spain continued in possession of the country. But the latter were either based on an order of survey made prior to Oct. 1, 1800, or were followed up by inhabitation and cultivation according to the laws and usages of the Spanish government. Register B. exhibited a list of claims founded on incomplete titles only, such as orders of survey, permits to settle, &c., derived from either the French, British, or Spanish authorities, which, in the opinion of the commissioner, ought to be confirmed. The majority of these claims, the commissioner says, were originated by the Spanish authorities prior to the purchase of Louisiana by the United States, and, agreeably to the laws, usages, and customs of the then existing government, would have been completed by the same power which granted them. Some were issued subsequently to the purchase. In relation to these, the decision in their favor was not predicated upon the validity of the orders of survey, but simply upon the fact that the parties had occupied and cultivated their lands, and had complied with all the requisitions of the government which at that time exercised ownership over the soil. Amer. State Papers, Public Lands, vol. iii. p. 66. Registers C and D contained a list of grants and orders of survey made after the cession to the United States, and not in the regular way, according to the laws and usages of the Spanish government, and, generally, not followed by any habitancy or cultivation of the lands. These grants and orders of survey were mostly of a speculative character, many of them being for large tracts, obtained at a few cents per acre, and evidently made for the purpose of getting as much as possible out of the precarious and disputed title by which the Spanish government still held possession of the country. The reports also contained a list of actual settlers upon the lands, who had no written title to show.

This report, with some qualifications, was confirmed by the act of March 3, 1819. 3 Stat. 528. The claims founded on complete grants, and contained in Register A, were all confirmed. As to those founded on orders of survey, permission to settle, &c., which the commissioners reported in favor of, the act confirmed such of them as were derived from the Spanish government prior to the 20th of December, 1803, and when the land was claimed to have been cultivated and inhabited on or before that day; and as to the remainder, declared that the claimants should be entitled to grants by way of donation, not to exceed twelve hundred and eighty acres to any one person. The act also made a donation of six hundred and forty acres to each actual settler who had no written title. This provision included most of the persons who had settled on the tract in question in this case.

Subsequent reports and confirmations were made; but the above is a fair sample of all, and evinces the principles upon which the government proceeded in confirming titles derived from the French and Spanish governments. They are cited for the purpose of showing, and we think they conclusively show, the fact that the government of the United States has always regarded the condition of inhabitancy and cultivation, annexed to imperfect titles derived from the Spanish government in the Louisiana territory, as material and essential, and as having this character by the laws and usages of that government.

We might have rested for the conclusion thus reached upon a line of cases decided by this court, and concisely summed up by Mr. Chief Justice Taney, in the able opinion delivered by him in the case of Fremont v. United States, 17 How. 553-556. But as it seems to be thought that every semblance of title or concession, however stale, and without regard to conditions of whatever kind, has been revived and validated by the act of 1860, we have preferred to review the original grounds upon which the policy of the United States government, with regard to these Spanish and other grants, was based, and to show what that policy really was. Mr. Chief Justice Taney, speaking of these incomplete titles in Louisiana and Florida, with very accurate knowledge of the subject, says: 'These grants were almost uniformly made upon condition of settlement, or some other improvement, by which the interest of the colony, it was supposed, would be promoted. But until the survey was made no interest, legal or equitable, passed in the land. The colonial concession granted on his petition was a naked authority or permission, and nothing more. But when he had incurred the expense and trouble of the survey, under the assurances contained in the concession, he had a just and equitable claim to the land thus marked out by lines, subject to the conditions upon which he had originally asked for the grant. But the examination of the surveyor, the actual survey, and the return of the plat were conditions precedent, and he had no equity against the government, and no just claim to a grant until they were performed; for he had paid nothing, and done nothing, which gave him a claim upon the conscience and good faith of the government.'

We have been referred to some cases decided by this court which are supposed to treat the conditions contained in these titles as of no importance, and as not necessary to be performed. But it will be found that these cases relate to perfected grants, or that they are otherwise distinguishable from cases like that now under consideration.

The first is Chouteau's Heirs v. United States, 9 Pet. 147. The condition in that case related to the number of cattle which the grantee ought to have, according to Governor O'Reilly's regulations, in order to be entitled to the lands claimed by him. The grant had, in fact, been made; and the court rightly held that this was a preliminary condition, and that the fact that the applicant possessed the requisite amount of property to entitle him to the land he solicited was submitted to the officer who decided on the application, and that he was not bound to prove it to the court which passed on the validity of the grant.

The next case is United States v. Aredondo and Others (6 id. 691), in which there was a complete grant of title, with a condition subsequent that the grantee should establish on the lands granted two hundred Spanish families, and begin the establishment within three years, no time being fixed for its completion. It was begun in the prescribed time, but its completion was prevented by the change of government. The court held that, in equity, the doctrine of cy pres would be applied to relieve the grantees from that strict performance which a court of law would require. The performance was held to have become impossible by the act of the grantor.

The next case is United States v. Sibbald, 10 id. 313. A concession had been made by the governor of East Florida of a right to build a saw-mill, and of sixteen thousand acres of land to supply the same with timber, with a condition that the grant for the land should not take effect until the mill was erected. The land was duly surveyed, and various attempts were made to complete the mill, which were frustrated by floods and other accidents. It was not completed until 1827, some time after the United States had acquired possession of the country. The court sustained the grant, holding that there was no time limited for erecting the mill, that it was completed in sufficient time, and that, in equity, it would have been sufficient to show a performance cy pres. Doubts were, indeed, expressed whether the court was authorized to give effect to a condition of forfeiture where the land had been legally granted; but that point was not necessarily involved in the case.

Hornsby v. United States, a California case (10 Wall. 224), is also referred to. There a decree for a concession had been duly made, with direction for a grant to issue, and the formal grant had issued accordingly, containing the usual conditions, that the grant should be approved by the departmental assembly, and that the grantees should solicit the proper judge to give them judicial possession, marking the boundaries with proper land-marks, &c. The quantity granted was nine square leagues of the surplus of a certain ranche, after satisfying two former grants. Judicial possession had not been obtained when the United States took possession of the territory, which happened about sixty days after the grant had been made. This was held a sufficient excuse for not complying with that condition. The opinion says: 'The court cannot inquire into any acts or omissions by them [the grantees] since those authorities [the Mexican authorities] were displaced. It is not authorized to pronounce a forfeiture for any thing done or any thing omitted by them since that period.' p. 239. As to the condition of obtaining the confirmation of the departmental assembly, it was held that this was the duty of the governor, and not of the grantee; and that as the conditions were all conditions subsequent, the estate could not be defeated by the governor's neglect. It was further held that the grant, in that case, being a full and perfect grant for so many leagues in a certain locality, to be surveyed by the officers of the government, could not fail for want of the survey being actually made: that mere neglect to comply with the conditions did not work a forfeiture, which could only be set up after a denouncement, or some other formal act indicating an intention on the part of the sovereign to resume proprietorship of the land.

There is nothing in any of these cases inconsistent with the assertion of the forfeiture in the case before us. Here no title was granted: nothing but a permit to inhabit and cultivate as preliminary to a grant. It might have ripened into an equitable title had the conditions been fulfilled, or even if a fair effort had been made to fulfil them, or if any plausible excuse could be offered for their non-fulfilment. But no attempt even appears ever to have been made to fulfil them; and the government proceeded to make other dispositions of the land. There is no need of any more formal assertion by the government of its right to resume the proprietorship. This court has in several cases maintained the doctrine that an actual entry or office found is not necessary to enable the government to take advantage of a condition broken, and to resume the possession of lands which have become forfeited. It was so held in United States v. Repentigny's Heirs, 5 Wall. 211; Schulenberg v. Harriman, 21 id. 44; and Farnsworth v. Minnesota & Pacific Railroad Co., 92 U.S. 49. In Repentigny's Case the court says: 'The mode of asserting or assuming the forfeited grant is subject to the legislative authority of the government. It may be after judicial investigation, or by taking possession directly, under the authority of the government, without these preliminary proceedings. In the present instance, we have seen the laws have been extended over this tract, the lands surveyed and put on sale, and confirmed to the occupants or purchasers, and, in the mean time, an opportunity given to all settlers and claimants to come in before a board of commissioners and exhibit their claims. This is a legislative equivalent for the reunion by office found.' The same doctrine was applied, in the case of Farnsworth, in relation to a grant of lands and privileges for the construction of a railroad.

In the case before us, if any act of the government was necessary to indicate a resumption of the grant for a non-compliance with its essential conditions, nearly all the volumes of the Statutes at Large, and of the State Papers relating to public lands for a period of twenty years, could be cited to show it.

We think that the claim was properly rejected, both by the commissioners in 1825, and by the court below, and that there is nothing in the act of 1860 which can be justly relied on for sustaining it.

Decree affirmed.


text: Talk:McMicken v. United States/Opinion of the Court


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United States v. Watkins Bringier

APPEALS from the District Court of the United States for the District of Louisiana.

The facts are stated in the opinion of the court.

The Solicitor-General, for the United States.

Mr. Willis Drummond and Mr. Robert H. Bradford, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: United States v. Watkins Bringier


text: Talk:United States v. Watkins Bringier

title: Talk:United States v. Watkins Bringier


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United States v. Watkins Bringier/Opinion of the Court

This case is very different from the preceding, being based upon a complete and perfect title, bearing date the 5th of March, 1804. This title consists of a Spanish grant, made by the Intendant Morales to one Charles Ramos, for twenty thousand arpents of land, situated in the St. Helena portion of Baton Rouge district, on the Amite River, and described by certain metes and bounds, according to a survey thereof which had been previously regularly made. The grant was made in pursuance of a sale of the land; and, although made according to the views of our government after the title of Spain had ceased to exist, yet it was made whilst that government had actual possession of the country and claimed the sovereignty thereof; and, therefore, it is within the purview of the act of 1860, and comes clearly within the case of United States v. Lynde, 11 Wall. 632.

The government, however, questions the evidence by which the grant and other documents of title were proved before the District Court. The originals were not produced; but only certified copies of the record thereof, made and preserved by the commissioner for examining land titles for the district where the lands are situated. The claim and the evidence connected therewith were presented to said commissioner in 1814; and this evidence, including the grant, was recorded by him as required by law. He reported against the confirmation of the grant, on account of its being based on a sale, and not competent for the Spanish government to make. Amer. State Papers, Public Lands, vol. iii. pp. 58, 66. His records, however, have been preserved, and turned over to his successors, in whose possession they now are. We think that these records are competent evidence. The fourth section of the act of April 25, 1812 (2 Stat. 715), required every claimant of land in the district in question to deliver to the commissioner a notice of his claim in writing, together with a plat (in case a survey had been made) of the tracts claimed; and to deliver also, for the purpose of being recorded, every grant, or order of survey, deed, conveyance, or other written evidence of his claim; and it was directed that the same should be recorded by the clerk, in books kept for that purpose, on receiving the prescribed fees therefor. The fifth section required the commissioner to record, in like manner, the evidence adduced before him in reference to the justice and validity of each claim. Abstracts of this evidence, and the decision of the commissioner thereon, were to be transmitted to the Secretary of the Treasury. By the seventh section of the act of 1860, under which the present proceedings are had, it is provided, 'That whenever any claim is presented for confirmation, under the provisions of this act, which has heretofore been presented, before any board of commissioners under authority of Congress, the facts reported as proven by the former board shall be taken as true prima facie; and the evidence offered before such former board, and remaining of record, shall be admitted on the examination of the claims made under the provisions of this act.'

This seems to be conclusive on the point. If the non-production of the original documents is, in any case, accompanied by such circumstances as to raise a suspicion of their genuineness, the question of the sufficiency of the record may be properly raised. But in the absence of any such suspicion, the record is sufficient evidence, prima facie, of the documents it contains. We think the objection cannot be sustained.

Other questions raised in the case depend upon the disposition of the property subsequent to the original grant. On the 8th of March, 1804, three days after the date of the grant, Ramos conveyed the property to William Simpson and John Watkins. The petitioners in the case are,-1st, the heirs of Watkins; 2d, Melanie Bringier, formerly the widow of Simpson, and who, in the original petition, claimed his half of the lands as his sole legal heir. The claim of Watkins's heirs to represent him seems to be sufficiently substantiated. The case also shows a duly certified copy of the will of William Simpson, dated Jan. 16, 1813, which was duly executed and proved in New Orleans, and by which he gave and devised to his wife, Melanie Bringier Simpson, all his estate and property, with the exception of a few trifling logacies. But a supplemental and amended petition was filed in the case, by which Melanie Bringier admits that it had come to her memory and notice that, on or about the year 1813, she sold to James Innerarity, for a valuable consideration, all her right and interest in the succession of her then recently deceased husband, William Simpson; which conveyance, she acknowledges, seems to estop her from claiming the undivided moiety of the lands, unless for the use and benefit of the said Innerarity, his heirs or legal representatives. She claims, however, that Innerarity was the testamentary executor of her husband, and was then engaged in settling his estate, which consisted mostly of the shares held by him in the extensive house of John Forbes & Co., of which John Forbes, Innerarity, and Simpson were the partners. [The report of Commissioner Cosby shows (Amer. State Papers, Public Lands, vol. iii. p. 58) that the claim under the Ramos grant was presented to him in 1814, by the heirs of Innerarity.] The supplemental petition proceeds to say, 'that it was an old-established maxim of said house that no partner could hold real estate purchased by him as separate property, but that it should belong to the house jointly; that, in the year 1814, it appears that the said Innerarity in presenting the land claim now sued on to the United States commissioner for land claims west of Pearl River, only claimed for himself, or the estate of William Simpson, 4,750 arpents, and stated in his notice of claim that 1,000 arpents belonged to the widow of Carlos Ramos, and 4,750 other arpents to John Lynde; that the transactions of those early days are involved in doubt and perplexity, and that the memory of your petitioner, after the lapse of more than half a century, fails to recall them clearly.

'Wherefore, if said title to said moiety of said lands sold by Charles Ramos to said Simpson, and devised to Melanie Bringier in his said will, has in fact been conveyed from her to said James Innerarity, either in his individual capacity or as a partner in the house of Forbes & Co., and whether the same is now vested in the legal representatives of said house, or the legal representatives of James Innerarity, or in them jointly with those of Ramos and Lynde, or in whomsoever the same may be vested in law or equity, if not in your petitioner, that then and in such case your petitioner acknowledges that she prosecutes this suit for the sole use and benefit of the said legal representatives of said Innerarity, or of them jointly with those of the house of Forbes & Co., the widow Ramos, and John Lynde, or for the sole use and benefit of whoever may hereafter be decreed to be the true, legal, and equitable owner of said lands.'

Wherefore the petitioners prayed that the petitioner Melanie Bringier might be allowed to prosecute the suit to final decree, for the sole use of those who in a proper legal proceeding might establish their rights contradictory to her under the sale from her to said Innerarity, in case said sale should be held valid, and to embrace said land.

To this supplementary petition a demurrer was interposed, which was sustained by the court below, and judgment was given for one half of the grant in favor of the heirs of Watkins, and for the United States as to the other half. The United States appealed from the first part of the decree, and Melanie Bringier appealed from the latter part.

We see no reason for sustaining the appeal of the government. The fact that Simpson and Watkins were tenants in common of undivided moieties in the land, can produce no inconvenience in making a decree in favor of Watkins's heirs for one-half of the amount of land in controversy. All, or nearly all of it, has been disposed of by the government, and the requisite amount of certificates of location can be awarded to them for their share therein. This they ask, and it is equitable and just that they should have it.

As to the share of Simpson, there is greater difficulty. By the admission of Melanie Bringier, she has parted with all title to the lands. It is evident that no decree can be made in her favor. The heirs of Innerarity have already been before the court, and their claims have been rejected. United States v. Innerarity, 19 Wall. 595. On the whole, we think that the decree of the District Court ought to stand.

As to the point made by the government, that the lands in question were not sold by the United States to third parties, but were donated to settlers thereon; and that, therefore, the case does not come within the words of the act of 1860, granting to successful claimants other public lands in lieu of those claimed, we do not think that this objection is tenable. If the government has disposed of the lands in any manner, we think the fair interpretation of the act is, that the claimant should have other lands in lieu thereof. As we have so held in several other cases, we do not deem it necessary to discuss the subject further. The act may well be construed alongside of other acts in pari materia, where the words 'sold or otherwise disposed of' are expressly used. They are all within the same mischief and the same reason.

Decree affirmed.


text: Talk:United States v. Watkins Bringier/Opinion of the Court


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Hyndman v. Roots

APPEAL from the Circuit Court of the United States for the Southern District of Ohio.

The facts are stated in the opinion of the court.

The drawings of the machines of the respective parties therein referred to are as follows:--

Mr. E. E. Wood for the appellant.

Mr. James Moore, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Hyndman v. Roots


text: Talk:Hyndman v. Roots

title: Talk:Hyndman v. Roots


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Hyndman v. Roots/Opinion of the Court

This is a case in equity. The bill is founded upon two patents. One of them is reissue No. 3570. It bears date on the 27th of July, 1869. The original of this reissue-No. 81,010-bore date on the 11th of August, 1868. The other patent is dated June 21, 1870. It is numbered 104,585, and was issued to the appellees as the assignees of Hardy and Wood, the alleged inventors.

The bill was dismissed, as to this latter patent, at the hearing, and no appeal was taken. It may, therefore, be laid out of view, and will not be again adverted to. The other original patent and the reissue are for improvements in cases for rotary blowers.

The bill charges infringement, and prays for an injunction and a decree for profits and damages. The answer denies the novelty of the alleged invention; denies that the reissue is for the same thing as the original patent; denies that the complainants were joint inventors, if inventors at all; and denies infringement.

Such were the issues made by the appellant in the court below. That court found all of them in favor of the appellees, and decreed accordingly.

Here the same points have been insisted upon.

In relation to all of them, except the one last mentioned, we deem it sufficient to say that we concur with the court below. We think the evidence leaves no room for a reasonable doubt as to either of them. The questions are questions of fact. No legal proposition is involved. To analyze the testimony in order to vindicate our conclusions would serve no useful purpose. Our further remarks will be confined to the subject of infringement. That is the hinge of the controversy between the parties.

It is difficult to convey clear ideas of complex machinery by any description that can be given. Drawings are more effectual, and models are still more so. If the model be full and accurate, it is, indeed, the thing itself in miniature.

The appellees, as the case is before us, confine their claims to improvements in the shell or case of blowers. The internal mechanism is in no wise in question. They say the objects of their invention were to avoid the necessity of boring out the interior concave surfaces of the case, and of facing off or planing the head-plates, and to render it practicable to cast the entire outside casing in one piece. They describe two modes of making the blower-heads true. One is to form them into planes at right angles to the shafts of the abutments, parallel with each other, equidistant from each other in all their parts, by giving to the inner surface of each plate a coating of plaster of Paris, hydraulic cement, or other material, having like plastic properties. This is suited to blowers of the smaller sizes. When this method is used, the plaster of Paris may be put on while in a plastic condition, by means of a sweep made to turn in the boxes of the blower-shafts, so that it will shape the linings of the ends as may be desired.

The second method is to use inside or secondary metal plates made in their outlines to conform to the interior of the case, and to face or plane them off so as to make them perfectly true. A space is left between these secondary plates and the ends of the case, which is filled with plaster of Paris of the proper consistency. After the plaster has set, the plates are secured in their places in any suitable manner. In making the inner surface of the arcs of the case true, the usual way of the patentees is to work from the centre of the shaft-journals as fixed points.

They give the inner part of the concaves a coating of plaster of Paris, and work it into the proper shape and proportions while it is setting, by means of a sweep attached to a shaft turning in the journal-boxes of the blower, as in the case of the head-plates when plaster is applied to them. While the plaster or other similar material is becoming set, they slowly move the sweep, so as to give the coating exactly the required shape and thickness. Sometimes, instead of using the sweep, they use a cylinder of a diameter corresponding with the sweep or the circles to be described by the pistons. The cylinder is hung on a central shaft resting in the journal-boxes. The plaster is then poured into the intervening space between the cylinder and the case and the 'metal guards,'-which are small projections on the inner surface of the case, intended to support the coating. When the plaster is set the cylinder is removed, and leaves the required arcs of a circle.

They do not cast very large blowers in a single piece. Those ordinarily used by blacksmiths and medium-sized foundry blowers are so cast.

If the case of a rotary blower be cast in one piece, it is necessary that the concave arcs of the case should be of such dimensions, and so placed on one side of the plane of the axis of the shafts, as to allow the removal of enough of the head-plates of the case to afford a sufficient opening for the introduction or removal of the abutments without interfering with any part of the case otherwise than to remove or replace the boxing which holds the shafts. By making the concave arcs a little more than a quarter of a circle, and placing them chiefly on one side of the plane of the shafts, the opening on the opposite side of the plane is correspondingly increased, allowing ample room for putting in and taking out the abutments, and also allowing the reduction of the end-plates on the open side of the plane, where they would otherwise interfere. If the concave arcs were materially increased and divided near equally on the two sides of the plane of the shafts, the abutments of a case so made could not be taken out or replaced without taking the case apart, and the case would need to be made accordingly.

The claims are,--

1. A rotary blower-case, the interior of which is made true by means of plaster of Paris, or its equivalent, applied as described.

2. Such a blower-case, the ends of which are made true by the application of plaster, or a like material, as described.

3. Such a blower-case, the concaves of which are made true by the use of such material, applied as described.

4. Such a blower-case, having the concave arcs in combination with the end-plates, so arranged as to admit of the abutments being introduced or removed without requiring the case to be taken apart, as described.

5. A rotary blower-case, the ends of which are made true by the use of secondary inside metal plates, as and for the purposes described.

6. The metal guards in the inside of the concaves, as described.

The specification sets forth in strong terms the great value of the invention claimed.

There is a marked difference between a fan blower and a rotary blower. They operate on different principles. The former makes from one hundred to three hundred revolutions per minute; the latter, from three thousand to six thousand in the same time. The appellees are the original inventors of the rotary blower. Such is their proof, and there is none to the contrary. Its value in the useful arts is evinced by its tested capabilities, and the ardor of this litigation. No patent of the appellees is in any wise involved in this controversy but the one we have analyzed.

The appellant has a patent also. It bears date on the 9th of August, 1870, and is No. 106,165. It covers both the shell or case and the inner machinery. The claims are for,--

'1. The blower-case A, made to support the abutting pistons, the circle or sweep of which in the surrounding case is lined with a cement of beeswax and resin or brimstone, retained without the use of guards or ledges; all substantially as herein set forth.

'2. The pistons B B, composed of the blades C C, guards E E, concavities D D, with the lining applied in a liquid condition, while heated, to form a continuous contact of the blade surfaces; all substantially as herein set forth.'

The specification refers three times to the invention of the appellees. It says, with respect to the shell, 'the upper section is cast in one piece, without the ordinary guards or ridges used to hold a lining, such as is set forth in the patent of P. H. and F. M. Roots, dated Aug. 11, 1868. . . . I am aware blower-cases have been made, all cast in one piece, such as are shown in the patents of P. H. and F. M. Roots. I do not, therefore, claim a blower-case broadly. I am also aware that plaster of Paris has been used in lining blower-cases, as described in the patents of P. H. and F. M. Roots of Aug. 11, 1868. I do not, therefore, claim the lining of blower-cases broadly. What I do claim is,' &c. He then sets forth his claims as we have quoted them.

It is difficult to read the specifications of the parties in the presence of the models, and resist the conviction that the appellant has carefully studied the invention of the appellees as described in their reissue, not with any view to its improvement, but solely for the purpose of evasion. It is not, however, what the appellant has said in his specification with which we have to do in this controversy. What he has done affecting the rights of the appellees is the material point, and we pass to the consideration of that subject. His patent is not without value as an auxiliary in that process.

The appellees' first, second, and third claims, with respect to the alleged infringement, may be considered together. They are for truing the interior of the case by means of plaster of Paris, or its equivalent, applied as described; for truing the end-plates in the same way, and for truing the concaves or arcs of the circles by the same means. The material to be used is 'plaster of Paris, hydraulic cement, or other material having the properties referred to.' These properties are plasticity when the material is applied, and firmness and brittleness afterwards. The reducing or truing process is also included in these claims. The appellant did all that is embraced in these claims. What was done differs in nothing from the process and other means employed by the appellees, except that he used a compound of glycerine and litharge instead of plaster of Paris. The former is a mere equivalent for the latter. Both are plastic when applied. Both become indurated afterwards. No chemical change takes place in either, and time alone is necessary to produce the desired hardness of the substance. The compound used by the appellant is clearly within the alternative terms of the specification of the appellees in this respect. The proofs in the record on all these points are so conclusive, that it would be a waste of time to pursue the subject further. The appellant is guilty of infringing these claims.

The essence of the fourth claim is a combination of the arcs with the end-plates, so arranged as to permit the abutments to be put in or taken out without taking the case apart. The peculiar features and advantages of what is embraced in this claim are clearly set forth in the testimony in the record.

The end-plates have no contraction at the opening for the admission of air. They therefore permit, without further change, so far as they are concerned, the removal of the pistons. The concave arcs are reduced to less than half a circle, and so provide at the air entrance a space sufficient to permit the introduction or withdrawal of the pistons without disturbing the case. The introduction of the sweep, and its necessary operation upon the plastic material, are, also, thus provided for. The air entrance, which is bounded by the ends of the arcs and the end-plates, permits the lining to be renewed at pleasure. The case, by reason of the contraction of the arcs and the configuration of the end-plates, permits the requisite shaping of the plastic material by sweeps or otherwise, so as to make the arcs perfectly true, and the end linings exactly at right angles with them. All the difficulties previously experienced in the construction of double-cylinder rotary blowers are thus obviated. This is regarded as an important result.

Turning now to the appellant's shell or case, the evidence shows that the concaves or arcs are less than half a circle in extent. The revolving pistons act against them in combination with the end-plates, which have no interior projections. The entire case is such as to admit of its being cast in one piece, and to admit also of the introduction and removal of the pistons, without the case being taken apart. It is of such a character as to permit in its complete state the introduction of the sweep, and its full operation upon the plastic material intended to be applied to the arcs and the end-plates. This is regarded as one of the most valuable features of the appellees' invention. The appellant's case is cast in two parts. There is a joint or division on the axial plane through the journal-boxes. It is in proof that this is neither reasonable nor necessary. Where the case is large, and too heavy for convenient handling, it may be useful, and for such cases it is suggested in the patent of the appellees. The patent of the appellant prescribes it for all his cases, and he so makes them. Why is this, and what are his object and purpose? We can imagine none but to gather where another had sown, and escape by simulation and subterfuge the consequences which the act of Congress has prescribed for the unlawful appropriation of such property. There is scarcely a thought expressed in the work of the appellees, so to speak, that is not found substantially transferred or closely copied in that of the appellant.

The points of identity are palpable and conclusive. The proofs leave no doubt in our minds that the appellant is guilty of the infringement of this claim, as well as of the first, second, and third. This controversy does not concern the appellees' fifth and sixth claims.

Decree affirmed.

title: Hyndman v. Roots/Opinion of the Court


text: Talk:Hyndman v. Roots/Opinion of the Court


text:
United States v. McKee McKee

APPEALS from the Court of Claims.

The facts are stated in the opinion of the court.

Mr. Assistant-Attorney-General Smith, for the United States.

Mr. S. W. Johnston, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: United States v. McKee McKee


text: Talk:United States v. McKee McKee

title: Talk:United States v. McKee McKee


text:
United States v. McKee McKee/Opinion of the Court

McKee had two separate written contracts with the quartermaster's department for the delivery of hay during the summer of 1864. The delivery in the one contract to be at Fort Gibson, of a part of the hay, and of another part at, or within seven miles of, that fort, and in the other, at Cabin Creek and Hudson's Crossing of the Neosho River. The locality was the Indian country, south of Kansas and west of Arkansas, which was the theatre of hostilities. Each contract contained the following provision, which is the foundation of plaintiff's claim against the United States now under consideration:--

'It is expressly understood by the contracting parties hereto, that sufficient guards and escorts shall be furnished by the government to protect the contractor while engaged in the fulfilment of this contract.'

A large part of the contract was fulfilled by delivery of the hay, and for that McKee was paid. A considerable amount of hay, cut and not delivered, was destroyed by the enemy, and for that he was paid. He lost in wagons, horses, and other personal property, by the attacks of the enemy, over $15,000, and for that he was paid.

In addition to this he claims now, and was allowed by the Court of Claims, as profits on the contract for hay never delivered or even cut, $29,559. From this judgment the United States appeals.

The United States made in the court below a claim of set-off for $34,713 wrongfully paid to McKee for his hay destroyed and abandoned before delivery, and for his property lost and destroyed while used in the operation of making and delivering the hay. Of this the Court of Claims allowed the sum of $12,600, and from this part of the judgment McKee appeals.

The opinion of the majority of the Court of Claims, which we find in the record, goes upon the ground that the soil upon which the hay was to be cut was the property of the United States, and that the contract was in legal effect, on the part of McKee, to do for a specified compensation the work which was necessary to convert the grass of the United States into hay, and for its delivery as required. That this compensation was not for the purchase of the hay from McKee, but for his labor and services expended on the property of the United States. The deduction is made from this proposition, that inasmuch as he was ready and willing at all proper times to render these services and perform the labor, and was prevented by the failure of the United States to give him the necessary protection, he is entitled to recover all that he would have made out of the contract if he had fully performed it.

We do not see on what foundation it is held that the grass was the property of the United States. The court expressly find, that the whole transaction was in the Indian Territory, south of Kansas and west of Arkansas. We know that this is country set apart for the use of the Cherokee, Choctaw, Chickasaw, and other Indian tribes, by treaties, those tribes having been removed there from other localities. We suppose that the possession and usufruct of this land are in the Indians. But if this were otherwise, and it was surveyed and unsold public land, there is nothing in the contract to show that any importance was attached to this fact.

The contract was for the delivery of so many tons of hay. It was expressly provided that it might be timothy hay or prairie hay. Had the United States any timothy meadows in which these men were to make hay? If they could have bought the hay from another party and delivered it, would they not have fulfilled their contract? It was clearly a contract for the sale and delivery of hay, and not for cutting grass and hauling it into the fort.

What then was the obligation assumed by the government in agreeing to furnish sufficient guards and escorts to protect the contractor while engaged in the fulfilment of the contract?

The literal terms of the agreement would be satisfied by such a guard as would secure his personal safety, and if such a construction had been insisted on by the government from the beginning, it would not be void of force.

The construction which the government has put upon it, namely, that it is an obligation to protect his person and property while engaged in the effort to perform the contract, and that the failure to afford such protection renders the United States responsible for the value of the property actually lost for want of it, and which would include, perhaps, personal injuries, if any had been sustained, seems to us to be the true one. It was all the contractor could reasonably ask. It is doubtful whether the contracting officer had authority to promise so much. But to this extent the accounting officers of the government and the quartermaster-general have ratified and confirmed it.

But we can see nothing in the provision itself, nor in the other parts of the agreement, nor in the nature of the circumstances under which it was made, to justify the conclusion that the government was bound as an insurer against all loss from hostile forces, not only arising from destruction of property, but from loss of speculative profits on grass that was never cut and hay that was never made or delivered or owned by the contractor, and for work that was never done.

Let us suppose that such had been the prevailing force of the enemy that the soldiers could only hold the fort and do no more, and such the danger outside that the contractor did not dare to cut a ton of hay, could he, by demanding an additional regiment to protect him, and saying I am ready to make the hay if you will keep off the enemy, make a speculative calculation of the profits he would have made if his demand had been complied with, and recover that sum, though he had never done any thing more?

If the United States was bound by the contract to furnish full protection, and if the measure of damages was these profits, the question must be answered in the affirmative.

But, as we have already said, we are of opinion that the true measure of damages was the actual value of the property lost by the contractor; and as the government recognized and acted on this rule, we do not think McKee is entitled to recover for his supposed profits, or that the government should recover of him what it has paid him for these actual losses. The result of these views is, that the judgment of the Court of Claims is reversed, with directions to dismiss both the petition of claimant and the counter-claim of the United States; and it is

So ordered.


text: Talk:United States v. McKee McKee/Opinion of the Court