[322] ABBIE B. CLARK, Exrx. AND RUFUS D. CHASE, Exr. of ANDREW J. CLARK, Deceased, ET AL., Appts.,

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v.

GEORGE H. WOOSTER.

(See S. C. Reporter's ed. 322-326.)

A decree was made establishing the patent, and the infringement thereof by the defendants, and referring it to a master to take and state an account of profits, and to assess damages, and the defendants were ordered to produce their books, papers, and devices used, so far as related to the matter in issue. Upon this reference, the parties entered into a stipulation before the master, by which the defendants admitted that they had purchased and dis

1. A court of equity has jurisdiction of a bill filed to restrain the infringement of a patent and to recover profits and damages, although the patent expired fifteen days after the bill was filed, when, by the course of the court, anajunction might have been obtained within that time. Whether to retain or dismiss the bill was within the discretion of the court below with which this court will not interfere unless that discretion was illegally exer2. The reissued patent itself, with proof of infringement, made a prima facie case for complainant; and allegations in the answer, that the patent was illegally reissued, required to be proved.

cised.

3. Established license fees are the best measure of damages that can be used in patent cases; and the evidence in the present case as to the license fee was sufficient.

[No. 31,] Argued Nov. 8, 9, 1886. Decided Dec. 6, 1886.

APPEAL from the Circuit Court of the United PPEAL from the Circuit Court of the United York. Affirmed.

The case is stated by the court. Messrs. Frederick P. Fish and T. L. Livermore, for appellants.

Mr. Frederick H. Betts, for appellee.

Mr. Justice Bradley delivered the opinion of the court:

This is a suit on a patent, brought by Wooster, the appellee, against the persons composing the firm of Johnson, Clark & Co., of New York, to restrain them from infringing the patent, and to recover profits and damages. The bill was filed on the 20th of December, 1879, and the patent expired fifteen days afterwards. The patent was for folding guides used on sewing machines, and is the same that was involved in the case of Thomson v. Wooster, 114 U. S. 104 [Bk. 29, L. ed. 105]. It was granted to one Douglas in October, 1858, for a period of fourteen years, was extended in October, 1872, for seven years longer, and was then, in the same month, surrendered and reissued. The bill does not specify the particular ground on which the reissued patent was granted; and although the answer avers that it was unlawfully granted, that the original was surrendered for the purpose of claiming more and other things than were described and claimed in it, and that the reissued patent is not for the same invention for which the original was granted, it does not set out the original, nor was the original put in evidence in the cause, and no evidence was offered to substantiate the allegations of the answer. The complainant produced the reissued patent in evidence and proved infringement. The defendant adduced evidence before the examiner, but out of time, and it was ruled out by the court.

decree; and in consideration thereof the complainant waived all further testimony as to profits received by the defendants therefrom, and agreed to rely on proof of damages in place of profits. The complainant adduced evidence to show that he had an established license fee of ten cents for each folding guide purchased or disposed of, and had granted licenses at that rate to divers sewing machine companies. The master, being satisfied with this evidence, reported the damages at $1,500. The defendants filed a number of exceptions to the report, none of which were sustained, and a decree was entered for the amount of damages reported. The defendants thereupon appealed. The points taken by the appellants are:

First. That the court below, sitting as a court of equity, had no jurisdiction of the case, because the complainant had a plain and adequate remedy at law

Second. That the reissue of the patent was illegal by reason of laches in applying for it.

Third. That the court erred in finding that the measure of damages was an established license fee, and that such license fee was proved.

As to the first point, the bill does not show any special ground for equitable relief, except the prayer for an injunction. To this the complainant was entitled, even for the short time the patent had to run, unless the court had deemed it improper to grant it. If, by the course of the court, no injunction could have been obtained in that time, the bill could very properly have been dismissed, and ought to have been. But by the rules of the court in which the suit was brought, only four days' notice of application for an injunction was required. Whether one was applied for does not appear. But the court had jurisdiction of the case, and could retain the bill, if in its discretion it saw fit to do so, which it did. It might have dismissed the bill, if it had deemed it inexpedient to grant an injunction; but that was a matter in its own sound discretion, and with that discretion it is not our province to interfere, unless it was exercised in a manner clearly illegal. We see no illegality in the manner of its exercise in this case. The jurisdiction had attached, and although, after it attached, the principal ground for issuing an injunction may have ceased to exist by the expiration of the patent, yet there might be other grounds for the writ arising from the possession by the defendauts of folding guides illegally made or procured whilst the patent was in force. The general allegations of the bill were sufficiently comprehensive to meet such a case. But even without that, if the case was one for equitable relief when the suit was instituted, the mere fact that the ground for such relief expired by the expiration of the patent would not take

away the jurisdiction, and preclude the court from proceeding to grant the incidental relicf which belongs to cases of that sort. This has often been done in patent causes, and a large number of cases may be cited to that effect; and there is nothing in the decision in Root v. R. Co. 105 U. 8. 189 [Bk. 26, L. ed. 975] to the contrary. Cotton Tie Co. v. Simmons, 106 U. S. 89 [Bk. 27, L. ed. 79]; Lake Shore & M. S. R. Co. v. Car-Brake Co. 110 U. S. 229 [Bk. 28, L. ed. 129]; Consolidated Valve Co. v. Crosby Valve Co. 113 U. S. 157 [Bk. 28, L. ed. 939]; Thomson v. Wooster, 114 U. S. 104 [Bk. 29, L. ed. 105]. It is true that where a party alleges equitable ground for relief and the allegations are not sustained, as where a bill is founded on an allegation of fraud, which is not maintained by the proofs, the bill will be dismissed in toto, both as to the relief sought against the alleged fraud, and that which is sought as incidental thereto. The point insisted on, that the bill contained no charge of continued infringement, or of infringement at the time of commencing the suit, if it were material, is not sustained by the fact. The bill does contain such a charge.

JAMES HAMILTON, Piff. in Err.,

v.

VICKSBURG, SHREVEPORT AND PACIFIC RAILROAD COMPANY.

(See S. C. Reporter's ed. 280-285).

Construction of bridges across navigable streams-regulation of, within power of States when Congress has not acted-damnum absque injuria.

1. Whenever the exercise of a right conferred by law for the benefit of the public is attended by temporary inconvenience to private parties, in common with the public in general, they are not entitled to damages therefor.

2. Where a railroad company has been authorized by a State to construct a bridge across a navigable avoidable during its construction, a private party stream, and some obstruction to navigation is undamaged by such obstruction cannot hold the company liable for such damage.

River.

which deprives the Legislature of the State of 3. There is nothing in any of the Acts of Congress Louisiana of the power to determine the character of the bridges which may be erected over the Boeuf 4. When a State provides for the form and character of a bridge its directions will control, irrespective of its effect upon navigation, except as against the action of Congress. [No. 23.]

The second point raised was substantially disposed of in the case of Thomson v. Wooster, qua supra. The allegations in the present bill are the same as they were in that case. Neither the bill nor the proofs show any thing from which the court can infer that the reissue was illegally granted; and the allegations of the answer are unsupported by evidence. The reissued patent itself made a prima facie case for the complainant. The allegations of the answer, that it was issued for the mere purpose of expanding the claim of the original, and that it was for another and different invention, should have been proved. But we have no evidence on the subject, not even the original patent with which to compare the reissue. This point, therefore, is wholly without foundation. The third point, as to the measure of danages and the want of proof thereof, is equally untenable. It is a general rule in patent causes, that established license fees are the best measure of damages that can be used. There may be damages beyond this, such as the expense and trouble the plaintiff has been put to by the defendant, and any special inconvenience he has suffered from the wrongful acts of the defendant; but these are more properly the subjects of allowance by the court under the authority given to it to increase the damages.

As to the sufficiency of the proof, we see no occasion to disturb the conclusion reached by the master on this point. The complainant proved several instances of licenses given by him to large sewing machine companies, the fees on which were regularly paid, and corresponded with the rate allowed by the master. We think that the defendants have no occasion to complain of the amount awarded.

The decree of the Circuit Court is affirmed. True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.

Dec. 6, 1886.

IN ERROR to the Supreme Court of the State of Louisiana. Affirmed.

The case is stated by the court. Mr. John T. Ludeling, for plaintiff in error:

The Supreme Court of Louisiana held that the Legislature of that State had the power to confer upon the defendant the right to build all necessary bridges across any navigable stream in the course of its line.

34 La. Ann. 973.

Upon rehearing the court said: "As to streams which are navigable only within the limits of a single State, the authority of its Legislature is complete." Id. 975.

The navigable rivers and waters in the Territories of Orleans and Louisiana are made public highways by the Act of March, 3, 1811. The Mississippi and navigable waters leading into the same, or into the Gulf of Mexico, are made public highways and forever free by the Act of the 20th of February, 1811, Act of March 1, 1817, and by the Act of June 4, 1812. Gordon, Digest, 640, note.

They are so declared by the Revised Statutes of the United States, sections 5251 and 2476. The Boeuf River is in fact navigable, and is therefore in law a public navigable river. The Montello, 20 Wall. 441 (87 U. S. bk. 22. L. ed. 394).

Usefulness for purposes of transportation for rafts, boats, or barges, gives a navigable character; reference being due to its natural state rather than to its average depth the year round.

The Montello, supra; Little Rock R. R. Co. v. Brooks, 39 Ark. 403; The Daniel Ball, 10 Wall. 557 (77 U. S. bk. 19, L. ed. 999); Moore v. Sanborne, 2 Mich. 519; Morgan v. King, 35 N. Y. 454; Brown v. Chadbourne, 31 Me. 9; Walker La. Ann. 226. v. Allen, 72 Ala. 456; Ingram v. Police Jury, 20

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If the proof is not sufficient to show the navigability of the water, the court will take judicial notice of such navigability.

1 Greenl. Ev. § 6; Win. Lake Co. v. Young, 40 N. H. 420; Atwater v. Schenck, 9 Wis. 160; The Peterhoff, Blatchf. Prize Cases, 463; Mo88man v. Forest, 27 Ind. 233; Ind. & C. R.R. Co. v. Stephens, 28 Ind. 429; Neaderhouser v. State, 28 Ind. 257; Wright v. Hawkins, 28 Tex. 452; McManus v. Carmichael, 3 Iowa, 1; Wood v. Fowler, 26 Kan. 682; Pennsylvania v. Wheeling ete. Bridge Co. 13 How. 519 (54 U. S. bk. 14, L. ed. 267).

Waters navigable in fact come within the power of the General Government, when by themselves or their connections with other waters they form a continuous channel for commerce among the States or with foreign countries.

The Daniel Ball, supra; Escanaba, etc. Co. v. Chicago, 107 U. S. 682 (Bk. 27, L. ed. 444). Where the power of the State and that of the Federal Government come in conflict, the latter must control. (683)

The decisions are that the Ordinance of 1787, and that the Act of Sep. 9,1850, admitting California, "must be considered as in no way impair ing the power which the State could exercise if the cause had no existence."

Escanaba, etc. Co. v. Chicago, 107 U. S. 678 (bk. 27, L. ed. 442); Cardwell v. American Riv. Br. Co. 113 U. S. 205 (28: 959); Pollard v. Hayan, 3 How. 212 (44 U. S. bk 11, L. ed. 565); Permoli v. Munic. No. 1 of N. 0.3 How. 589 (11: 739); Strader v. Graham, 10 How. 82 (51 U. S. bk. 13, L. ed. 337).

Such a decision does not apply to a valid law which Congress had the power to enact where the waters were within a State or territory. Wallamet Iron Br. Co. v. Hatch, 19 Fed. Rep.

347.

But whatever may be the construction of the Acts of Congress, admitting the States of Louisiana, Mississippi, etc., Congress has, since the admission of Louisiana into the Union, legislated upon the subject of the navigation of Boeuf River.

Rev. Stat. U. S. 1878, §§ 2476, 5251.

The decision in Wilson v. Blackbird Creek Marsh Co. 2 Pet. 245 "was based entirely upon the absence of any legislation of Congress upon the subject."

Escanaba, etc. Co. v. Chicago, supra.

In cases last cited, the decision rested upon the fact that "bridges over navigable streams which are entirely within the limits of a State, are regulated by the State. E converso, rivers running through two or more States are not.

In the Slaughter House Cases," the right to use the navigable waters of the United States, however they may penetrate the territory of the several States," is recognized.

16 Wall. 79 (83 U. S. bk. 21, L. ed. 409). See 8 Kent, Com. 411.

Messrs. George Hoadly, Jr., Edgar M. Johnson, Edward Colston and George Hoadly, for defendant in error:

The power of the original States to authorize the obstruction of navigable streams, within their territory, was recognized in Wilson v. Blackbird Creek Marsh Co. 2 Pet. 245 (27 U. S. bk. 7, L. ed. 412).

Gilman v. Phila. 8 Wall. 713 (70 U. S. bë 18, L. ed. 96).

The Statutes of the United States upon which the plaintiff in error relies have no bearing up on the power of the States to thus obstruct navigable waters within their limits.

Pound v. Turck, 95 U. 8. 459 (Bk. 24, L. ed. 525); Escanaba, etc. Co. v. Chicago, 107 U. S. 678 (27: 442); Cardwell v. American Rio. Br. Co. 113 U. S. 205 (20: 959).

Mr. Justice Field delivered the opinion of [281]

the court:

The authority vested by its Act of incorporation in the Vicksburg, Shreveport and Texas Railroad Company, to construct a railroad from a point opposite Vicksburg to the state line of Texas, enipowered it to construct as part of the road all necessary bridges for the crossing of navigable streams which might be on its line. It was so held by the Supreme Court of the State of Louisiana, and it would seem to be a self-evident proposition. What the form and character of the bridges should be, that is to say, of what height they should be erected, and of what materials constructed, and whether with or without draws, were matters for the regulation of the State, subject only to the paramount authority of Congress to prevent any unnecessary obstruction to the free navigation of the streams. Until Congress intervenes in such cases, and exercises its authority, the power of the State is plenary. When the State provides for the form and character of the structure, its directions will control, except as against the action of Congress, whether the bridge be with or without draws, and irrespective of its effect upon navigation.

As has often been said by this court, bridges are merely connecting links of turnpikes, streets and railroads; and the commerce over them may be much greater than that on the streams which they cross. A break in the line of railroad communication from the want of a bridge may produce much greater inconvenience to the public than the obstruction to navigation caused by a bridge with proper draws. In such cases, the local authority can best determine which of the two modes of transportation should be favored, and how far eithe: should be made subservient to the other. Gilman v. Phila. 3 Wall. 713, 729 [70 U. S. bk. 18, L. ed. 96, 101].

In the case at bar no specific directions as to the form and character of the bridges over the streams on the line of the railroad were prescribed by the Legislature of the State. The authority of the Company to construct them was only an implied one, from the fact that such structures were essential to the continuous connection of the line. Two conditions, however, must be deemed to be embraced within this implied power: one, that the bridges should be so constructed as to insure safety to the crossing of the trains, and be so kept at all times; and the other that they should not interfere unnecessarily with the navigation of the streams.

The line of road crossed a small stream, one of the tributaries of the Ouachita River, called Boeuf River, which was navigable for about six months in the year. This river has its rise

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