Imágenes de páginas
PDF
EPUB

*20

the United States brought an action in the, upon which Ard entered in 1866 the legal United States circuit court for Kansas effect which the plaintiffs in error insist against the Missouri-Kansas Company and must be given to it. It is conceded that the other railroad companies to cancel certain lands were not within the place or granted patents that had been issued for lands in limits of either railroad, but were within Allen county, Kansas, including the one is indemnity limits. According to the decisued to the Missouri-Kansas Company for sions of this court, they were therefore open the tract in section 11. United States v. to settlement under the homestead laws up Missouri, K. & T. R. Co. 141 U. S. 358, 35 to the time of their being selected to supL. ed. 766, 12 Sup. Ct. Rep. 13. Brandon ply deficiencies in place limits, with the was made a defendant in that action be- approval of the Secretary of the Interior, cause he asserted rights in lands covered by after the filing of a map of definite location. some of the patents sought to be canceled. The withdrawal of them from sale or settleBut Ard was not made a party, although ment, simply at the request of Senators and some of the evidence in the case had refer- Representatives from Kansas, prior to the ence to the tract in section 11, as well as definite location of the road, and before they to the circumstances under which he occu- were regularly selected to supply deficienpied it. That action was brought by the cies in place or granted limits, was withAttorney General of the United States at out authority of law. Such unauthorized the request of the Secretary of the Inte- withdrawal did not stand in the way of Ard, rior, who proceeded under the act of Con- in virtue of his settlement on them in 1866, gress of March 3d, 1887 (24 Stat. at L. under the then-existing homestead laws, 556, chap. 376, U. S. Comp. Stat. 1901, p. from acquiring such an interest in the lands 1595). That act directed the Secretary "to as would be protected against their subseimmediately adjust, in accordance with the quent selection by the railroad company. The decisions of the Supreme Court, each of the acts of Congress cannot be construed as acrailroad land grants made by Congress to tually granting lands to which had attached, aid in the construction of railroads, and before the definite location of the road, any heretofore unadjusted." In that action the claim or right under the homestead laws. government was unsuccessful in both the A claim or right did attach to these lands circuit court and in this court, but not, as in favor of Ard before any map of definite we shall presently see, on any question location was made or filed, and before they determinative of the issue now presented were selected for the railroad company to as between Brandon's heirs and Ard. supply alleged deficiencies in place limits. What we have said is in conformity with numerous decisions of this court cited in the margin.†

Later on, the present case, so far as it involved the title to section 11, as between Brandon and Ard, was again heard upon its merits in the state court, and judgment went in favor of Ard. That judgment was affirmed by the supreme court of Kansas, which had before it the judgments in Ard v. Brandon, 156 U. S. 537, 39 L. ed. 524, 15 Sup. Ct. Rep. 406, and in United States v. Missouri, K. & T. R. Co. supra.

The cases cited were referred to in a

+Hewitt v. Schultz, 180 U. S. 139, 45 L.

ed. 463, 21 Sup. Ct. Rep. 309; Nelson v. Northern P. R. Co. 188 U. S. 109, 47 L. ed 406, 23 Sup. Ct. Rep. 302; United States v. Northern P. R. Co. 152 U. S. 284, 296, 38 L. ed. 443, 448, 14 Sup. Ct. Rep. 598; NorthSubsequently, after the decision in Ardern P. R. Co. v. Sanders, 166 U. S. 620, 634, v. Brandon, 156 U. S. 537, 39 L. ed. 524, 15 Sup. Ct. Rep. 406, Ard renewed his application, under the homestead laws, for both tracts. Having made the proper proofs, and paid the required fees, his application was approved and a patent issued to him by the United States on October 17th, 1900, under the homestead law of 1862 and the acts supplementary thereto. That patent was put in evidence at the last hearing of this cause in the inferior state court and was part of the record in this case when it was before the supreme court of Kansas, whose judgment is now here for review.

In our opinion the determination of the present case depends upon the conclusions that may be reached on two questions.

1. We cannot give to the withdrawal from sale, pre-emption, or settlement of the lands

635, 41 L. ed. 1139, 1144, 17 Sup. Ct. Rep. 671; Menotti v. Dillon, 167 U. S. 703, 42 L. ed. 333, 17 Sup. Ct. Rep. 945; United States v. Oregon & C. R. Co. 176 U. S. 28, 261; St. Paul & P. R. Co. v. Northern P. 42, 44 L. ed. 358, 364, 20 Sup. Ct. Rep. R. Co. 139 U. S. 1, 5, 35 L. ed. 77, 79, 11 Sup. Ct. Rep. 389; St. Paul & S. C. R. Co. v. Winona & St. P. R. Co. 112 U. S. 720, 723, 28 L. ed. 872, 873, 5 Sup. Ct. Rep. 334; Missouri, K. & T. R. Co. v. Kansas P. R. Co. 97 U. S. 491, 501, 24 L. ed. 1095, 1098; Cedar Rapids & M. River R. Co. v. Herring; 110 U. S. 27, 28, 28 L. ed. 56, 57, 3 Sup. Ct. Rep. 485; Grinnell v. Chicago, R. I. & P. R. Co. 103 U. S. 739, 26 L. ed. 456; Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 112 U. S. 414, 28 L. ed. 794, 5 Sup. Ct. Rep. 208; Wilcox v. Eastern Oregon Land Co. 176 U. S. 51, 44 L. ed. 368, 20 Sup. Ct. Rep. 269.

*22

[ocr errors]

recent case in this court,-Sjoli v. Dreschel,, action. He had no control of it, and was 199 U. S. 565, 50 L. ed. 312, 26 Sup. Ct. not entitled of right to be heard or to adRep. 154. It was there held that those cases established, among other propositions, the following: "That the railroad company will not acquire a vested interest in particular lands, within or without place limits, merely by filing a map of general route and having the same approved by the Secretary of the Interior, although, upon the definite location of its line of road and the filing and acceptance of a map thereof in the office of the Commissioner of the General Land Office, the lands within primary or place limits, not theretofore reserved, sold, granted, or otherwise disposed of, and free from pre-emption or other claims or rights, become segregated from the public domain, and no rights in such place lands will attach in favor of a settler or occupant who becomes such after definite location; that no rights to lands within indemnity limits will attach in favor of the railroad company until after selections made by it with the approval of the Secretary of the Interior; that up to the time such approval is given, lands within indemnity limits, although embraced by the company's list of selections, are subject to be disposed of by the United States or to be settled upon and occupied under the pre-emption and homestead laws of the United States; and that the Secretary of the Interior has no authority to withdraw from sale or settle ment lands that are within indemnity limits, which have not been previously selected, with his approval, to supply deficiencies within the place limits of the company's road."

It is true that the cases above referred to arose under acts of Congress that did not relate in terms to grants of lands to the state of Kansas to aid in the construction of railroads. But they are none the less in point here; for the provisions in them as to homestead rights attaching prior to definite location are, in substance, the same as are found in the above acts of Congress relating to lands granted to Kansas.

2. When we recall what this court (as above quoted) said in Ard v. Brandon, 156 U. S. 537, 39 L. ed. 524, 15 Sup. Ct. Rep. 406, about Ard's rights in respect of these identical lands, there is no room to doubt the correctness of the judgment of the supreme court of Kansas in his favor, unless we hold, as plaintiffs contend we should. that Ard is concluded by the decision of the circuit court of the United States in the action brought by the United States to cancel certain patents issued to the Missouri-Kansas Company. But we cannot so hold. As already stated, Ard was not, and was not sought to be, made a party to that

duce evidence in it. He was not, in any legal sense, represented in the case, nor can he be regarded as privy to the issue between the United States and those whom it sued. His membership in the Settlers' Protective Association—which association, it is said, induced the United States to bring the action referred to did not so connect him, in law, with the litigation, as that the judgment therein would bind him or be conclusive evidence against him. It must be assumed that the Attorney General of the United States sued the MissouriKansas Company only in the discharge of his official duty, and for the purpose of asserting the rights of the government as against that company. He could not have represented merely private parties in that suit; he represented only the United States. Ard was not, in any legal sense, a privy to the issue of record between the United States and its opponents, although the validity of the patent received by the Missouri-Kansas Company for the land here in question-under which company the present plaintiffs in error claim was directly* disputed by the government in that case. It is said that Ard was an active member of the Settlers' Protective Association. But that is not a controlling fact. It may be, as alleged, that, in respect of the patents issued to it, the government was induced to proceed against that company by the representations made and the facts brought to its attention by that association. But that circumstance did not so connect the association with the suit as to make the judgment binding upon its individual members in a suit between other parties. In suing the Missouri-Kansas Company the officers of the government acted wholly upon their independent judgment as to the validity of the patents it had issued, and as to what was its duty to those who had previously acquired rights in the particular public lands covered by those patents. The issue in that case was only as to the respective rights of the United States and the Missouri-Kansas Company, as between each other. There was no issue between the company or those claiming under it and Ard, who was in actual possession, claiming equitable rights in the lands in dispute by reason of his occupancy of them under the homestead laws. In United States v. Missouri, K. & T. R. Co., above cited, the bill referred to those acts of the land officers which had the effect to prevent settlers from acquiring rights which they were entitled to acquire under the homestead and pre-emption laws. The court, alluding to those allegations, said: "If the facts are 85

thus alleged, it is clear that the Missouri- | 434, 436, chap. 74, U. S. Comp. Stat. 1901, Kansas Company holds patents to land both p. 573), 8 8, defining the appellate juriswithin the place and indemnity limits of diction of the Federal Supreme Court, since, the Leavenworth road which equitably be- under U. S. Rev. Stat. §§ 4914, 4915,1 decisions on such appeals do not preclude any long to bona fide settlers who acquired person interested from contesting the validrights under the homestead and pre-empity of the patent in court, and a remedy by tion laws, which were not lost by reason of bill in equity is given where a patent is the Land Department having, by mistake refused. or an erroneous interpretation of the statutes in question, caused patents to be issued to the company. The case made by the

above-admitted averments of the bill is one of sheer spoliation upon the part of the company of the rights of settlers; at

[Ed. Note.-For other cases, see Courts, Dec. Dig. § 388.

For other definitions, see Words and Phrases, vol. 3, pp. 2774-2798; vol. 8, p. 7063.]

[No. 14.]

ber 19, 1908.

least, of those whose rights attached prior Argued April 23, 24, 1908. Decided Octo2 to the withdrawal of 1867; whether of others, it is not necessary, at this time, to

determine." And in Ard v. Brandon, 156 U. S. 537, 541, 39 L. ed. 524, 525, 15 Sup. Ct. Rep. 406, the court, referring to the language just quoted, and to the transfer of the legal title by the patent of the United States to the Missouri-Kansas Company, said: "But it is equally clear, under the authority of the last-cited case [United States v. Missouri, K. & T. R. Co.], as well as of many others, that no adjudication against the government in a suit by it to set aside a patent estops an individual not a party thereto from thereafter setting up his equitable rights in the land for which the patent was issued."

It results that, in the present case, involving only the title to the tract of 80 acres in section 11, that, by his rightful occupancy of that tract, under and in conformity with the homestead laws, before any interest therein was legally acquired by the railroad company, Ard's equitable rights, thus accruing and supported at the final hearing by a patent from the United States, must prevail.

For the reasons stated, the judgment of the Supreme Court of Kansas is affirmed.

APPEAL from and in ERROR to the

Court of Appeals of the District of Columbia to review a decision affirming a decision of the Commissioner of Patents, who had affirmed in part a decision of the examiners in chief on the question of uniting process and apparatus claims in the same application. Dismissed for want of jurisdiction.

See same case below, 27 App. D. C. 25.

Statement by Mr. Chief Justice Fuller: Frasch applied for a patent for an invention of a new and useful improvement in the art of making salt by evaporation of He expressed his alleged invention brine. in six claims, three of which were for the process of removing incrustation of calcium sulphate from brine-heating surfaces, and three of them were for an apparatus for use in the process.

At the time when the application was fired, rule 41 of the Patent Office did not permit the joinder of claims for process and claims for apparatus in one and the same application. The examiner required division between the process and apparatus claims, and refused to act upon the merits.

Mr. Justice Brewer took no part in the An appeal was taken to the examiners in decision of this case.

(211 U. S. 1)

HERMAN FRASCH, Appt. and Plff. in Err.,

V.

EDWARD B. MOORE, Commissioner of
Patents.†

COURTS (§ 388*) — SUPREME COURT - PAT-
ENTS "FINAL DECREE."

A decree of the court of appeals of the District of Columbia on an appeal from the Commissioner of Patents, which affirms the latter's decision and directs the clerk of the court to "certify this opinion and proceedings in this court in the premises to the Commissioner of Patents, according to law,"is not "final" within the meaning of the act of February 9, 1893 (27 Stat. at L. †Made party in place of Frederick I. Allen, Commissioner, resigned.

chief, but the examiner refused to forward
it. A petition was then filed, asking the
Commissioner of Patents to direct that the
The Commissioner held
appeal be heard.
that the examiner was right in refusing to
forward the appeal. From that decision
appeal was taken to the court of appeals of
the District, which held that it did not
have jurisdiction to entertain it. Frasch
then filed a petition in this court for a
mandamus, directing the court of appeals
to hear and determine the appeal, which
Ex parte Frasch,
petition was dismissed.
192 U. S. 566, 48 L. ed. 564, 24 Sup. Ct.
Rep. 424.

But in United States ex rel. Steinmetz v. Allen, 192 U. S. 543, 48 L. ed. 555, 24 Sup. Ct. Rep. 416, it was held that rule 41, as applied by the Commissioner, was invalid, 1 U. S. Comp. St. 1901, p. 3392.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r ludexes

and that the remedy for his action was by in which the matter in dispute, exclusive mandamus in the supreme court of the of costs, shall exceed the sum of five thouDistrict to compel the Commissioner to act. sand dollars, in the same manner and under Accordingly the proceedings in the present the same regulations as heretofore procase were resumed in the Patent Office, and vided for in cases of writs of error on the applicant asked the Commissioner to judgment or appeals from decrees rendered direct that the appeal theretofore taken to in the supreme court of the District of Cothe examiners in chief be heard by them. lumbia; and also in cases, without regard The Commissioner granted this petition. to the sum or value of the matter in disThe primary examiner furnished the re- pute, wherein is involved the validity of quired statement and a supplementary any patent or copyright, or in which is statement of the grounds of his decision re- drawn in question the validity of a treaty quiring division. The examiners in chief or statute of or an authority exercised unaffirmed the decision of the primary examin-der the United States."

sought to be reviewed in the present case is not final, but merely ended an interlocutory stage of the controversy, and sent the applicant back to the Patent Office to conform to the meaning and effect of the rule on division of claims as construed by the Commissioner of Patents, and to pursue the application in the form required to allowance or rejection.

er, "requiring a division of these claims The decision of the court of appeals for an art and for an independent machine used to perform the art;" one examiner in chief, dissenting, held that division should not be required. On appeal to the Commissioner, he affirmed the examiners in chief in part only; that is to say, he held that process claim No. 1 must be divided from the other process claims and the apparatus claims, but that process claims Nos. 2 and 3 and the apparatus claims Nos. 4, 5, and 6 might be joined in one application. Rehearing was denied, and an appeal was taken to the court of appeals for the District of Columbia, which affirmed the decision of the Commissioner of Patents, for reasons given at large in an opinion, and directed the clerk of the court to "certify this opinion and proceedings in this court in the premises to the Commissioner of Patents, according to law."

An appeal and a writ of error were allowed, the court stating through Mr. Chief Justice Shepard: "We are inclined to the view that this case is not appealable to the Supreme Court of the United States, but, as the question has never been directly decided, so far as we are advised, we will grant the petition in order that the question of the right to appeal in such a case may be directly presented for the determination of the court of last resort."

The record was filed January 25, 1907, and on February 4 a petition for certiorari.

Mr. Charles J. Hedrick for appellant and plaintiff in error:

Solicitor General Hoyt for appellee and defendant in error.

* Mr. Chief Justice Fuller delivered the

opinion of the court:

Section 8 of the act of February 9, 1893 (27 Stat. at L. 434, 436, chap. 74, U. S. Comp. Stat. 1901, p. 573), provides:

"That any final judgment or decree of the said court of appeals may be re-examined and affirmed, reversed, or modified by the Supreme Court of the United States, upon writ of error or appeal, in all causes

Section 780 of the Revised Statutes of the District of Columbia reads thus:

"The supreme court, sitting in banc, shall have jurisdiction of and shall hear and determine all appeals from the decisions of the Commissioner of Patents, in accordance with the provisions of sections forty-nine hundred and eleven to section forty-nine hundred and fifteen, inclusive, of chapter

one, title 60, of the Revised Statutes (U. S. Comp. Stat. 1901, pp. 3391, 3392), 'Patents, Trademarks, and Copyrights.””

Section 9 of the "Act to Establish a Court of Appeals for the District of Columbia, and for Other Purposes," approved February 9, 1893 (27 Stat. at L. 434, 436, chap. 74, U. S. Comp. Stat. 1901, p. 3391),

is:

"Sec. 9. That the determination of ap peals from the decision of the Commissioner of patents, now vested in the general term of the supreme court of the District of Columbia, in pursuance of the provisions of section seven hundred and eighty of the Revised Statutes of the United States, relating to the District of Columbia, shall hereafter be, and the same is hereby, vested in the court of appeals created by this act;

and, in addition, any party aggrieved by a

decision of the Commissioner of Patents in any interference case may appeal therefrom to said court of appeals."

Thus, the special jurisdiction of the District supreme court in patent appeals was transferred to and vested in the court of appeals, and decisions in interference cases were also made appealable, which had not been previously the case. Rev. Stat. § 4911.

The law applicable is § 4914, Revised Stat- | court of appeals sustains him, that is mereutes, which provides:

"The court, on petition, shall hear and determine such appeal, and revise the decision appealed from in a summary way, on the evidence produced before the Commissioner, at such early and convenient time as the court may appoint; and the revision shall be confined to the points set forth in the reasons of appeal. After hearing the case the court shall return to the Commissioner a certificate of its proceedings and decision, which shall be entered of record in the Patent Office, and shall govern the further proceedings in the case. But no opinion or decision of the court in any such case shall preclude any person interested from the right to contest the validity of such patent in any court wherein the same may be called in question."

By 4915 a remedy by bill in equity is given where a patent is refused, and reads as follows:

"Sec. 4915. Whenever a patent on application is refused, either by the Commissioner of Patents or by the supreme court of the District of Columbia upon appeal from the Commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the Commissioner to issue such patent on the applicant filing in the Patent Office a copy of the adjudication, and otherwise complying with the requirements of law. In all cases where there is no opposing party, a copy of the bill shall be served on the Commissioner; and all the expenses of the proceeding shall be paid by the applicant, whether the final decision

is in his favor or not."

The final decision referred to is obvious

ly the judicial decision on the bill in equity,

while in interference cases and in all others

going up from the Commissioner to the Court of Appeals there is no final judgment in the cause, but one interlocutory in its nature, and binding only upon the Commissioner, "to govern the further proceedings in the case." The opinion or decision of the court, reviewing the Commissioner's decision, is not final, because it does not preclude any person interested from contesting the validity of the patent in court; and, if the decision of the Commissioner grants the patent, that is the end of the matter as between the government and the applicant; and if he refuses it, and the

ly a qualified finality, for, as we have seen, the decision of that court may be challenged generally and a refusal of patent may be reviewed and contested by bill as provided. The appeal given to the court of appeals of the District from the decision of the Commissioner is not, as Mr. Justice Matthews said in Butterworth v. United States, "the exercise of ordinary jurisdiction at law or in equity on the part of that court, but is one step in the statutory proceeding under the patent laws whereby that tribunal is interposed in aid of the Patent Office, though not subject to it. Its adjudication, though not binding upon any who choose, by liti gation in courts of general jurisdiction, to question the validity of any patent thus awarded, is nevertheless conclusive upon the Patent Office itself; for, as the statute declares (Rev. Stat. § 4914), it shall govern the further proceedings in the case."" U. S. 60, 28 L. ed. 659, 5 Sup. Ct. Rep. 25.

112

In Rousseau v. Brown, 21 App. D. C. 73, 80, which was an appeal from the Patent Office in the matter of an interference between two applications, the court affirmed the decision of the Commissioner of Patents, ruling against one of the claims on the ground that priority of invention must be awarded to the other claimant, declined to allow a writ of error or appeal, and said, through Chief Justice Alvey:

"There is no final judgment of this court rendered in such cases, nor is there any such judgment required or authorized to be rendered, not even for costs of the appeal. This court is simply required in such cases, after hearing and deciding the points as presented, instead of entering judgment here, to return to the Commissioner of Patents a certificate of the proceedings and decision of this court, to be entered of record in the Patent Office, to govern the further proceedings in the case. But it is declared by the statute that no opinion of this court in any such case shall preclude any person interested from the right to contest the validity of any patent that may be granted by the Commissioner of Patents. D. C. Rev. Stat. § 780, U. S. Rev. Stat. §

4914.

"There is no provision of any statute, within our knowledge, that authorizes a writ of error or an appeal to the Supreme Court of the United States in such case as the present. It would seem clear that the case is not within the purview of § 8 of the act of Congress of February 9, 1893, providing for the establishment of this court. That section only applies to cases where final judgments by this court have been entered, and not to decisions to be made and

« AnteriorContinuar »