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those which the locator called his side lines were in fact his end lines. Del Monte M. & M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. 895, 13 L. Ed. 72; Last Chance M. Co. v. Tvler M. Co., 157 U. S. 683, 15 Sup. Ct. 133, 39 L Ed. 859; Flagstaff M. Co. v. Tarbet, 98 U. S. 463, 25 L. Ed. 253; Argentine M. Co. v. Terrible M. Co., 122 U. S. 478,7 Sup. Ct. 1356, 30 L. Ed. 1140; King v. Amy Silversmith M. Co., 152 U. S. 222, 14 Sup. Ct. 510, 38 L. Ed. 419; Bunker Hill & Sullivan NI. & C. Co. v. Empire State-Idaho M. & D. Co., 109 Fed. 538, 48 C. C. A. 665; Empire M. & M. Co. v. Tombstone M. & M. Co. (C. C.) 100 Fed. 910; Cosmopolitan M. Co. v. Foote (C. C.) 101 Fed. 518; Tyler M. Co. v. Sweeney, 54 Fed. 284, 4 C. C. A. 329. And as they were laid, as the evidence shows, openly and aboveboard, without any forcible, clandestine, surreptitious, or otherwise fraudulent entry upon the ground of another, and without objection on the part of any one, the location of the Stemwinder thus made, carved out, as against the government, and any and every subsequent locator, a segment of the vein throughout its entire depth, which belonged to its locator. Del Monte M. & M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72; Empire State-Idaho M. & D. Co. v. Bunker Hill & Sullivan M. & C. Co., ili Fed. 117, 52 C. C. A. 219.
Unless the amended location of the Stemwinder operated as a total abandonment of the original, that segment of the vein, within the limits of the planes of the amended location, remains the property of the successors in interest of the original locator, against all persons not possessed of some prior right. That such amended location was not intended to operate as any such abandonment has already been shown by the express declarations of the notice of amended location above quoted; and that, as a matter of law, it was not an abandonment of the original location, is equally clear. Thompson v. Spray, 72. Cal. 528, 14 Pac, 182; Hallack v. Traber, 23 Colo. 11, 46 Pac. 110; McEvoy v. Hyman, 25 Fed. 596; Morrison v. Regan (Idaho) 67 Pac. 955; Duncan v. Fulton (Colo. App.) 61 Pac. ?17.
The great width of the vein or lode in question is also again pressed upon our attention by the learned counsel for the appellant; extending, as he insists the evidence shows, beyond the west side line of the Stemwinder claim. In respect to this matter the court below said in its opinion :
"The defendant also maintains that the apex of this ledge is so wide that it extends far to the westward of the west line of the Stenwinder. Upon this subject there is much and some very interesting testimony by experienced and scientific mining men, but no one has been able to set detinite limits to the ledge, and that it has no distinct hanging wall cannot be doubted. Its one distinct and persistent feature is its foot wall. It was the axis of action. ('pon it the superincumbent mass of hanging country had its oscillating and grinding motion, resulting in the creation of that heavy selvage or gouge now found upon it, and in so shaking and breaking up that hanging country as to change the relation of its component parts; thus creating large masses of brecciated rock, fissures and cavities, through which the circulating mineral elements deposited their ores. It would be expected that those conditions would decrease as we advance from the line of fissure and action, until reaching a point where there had been no disturbance of the rocks. We would expect the evidence of mineralization to extend far beyond the ore deposits, and as far as the country had been disturbed, displaced, or brecciated, but we cannot conclude that the legal hanging wall extends to the limits of these influences. It is a fact that in many ledges having a distinct hanging and foot wall, the country beyond either is more or less mineralized, and at times even small deposits of ore are found beyond the lines of the walls. Yet no miner would say that such mineralized country rock constituted a part of the ledge. It appears that in this ledge the foot-wall country has very little mineralization or even mineral stains. The reason is evident. The heavy gouge prevented the escape in that direction of the mineral elements, and the rocks having preserved their original compact formation, there were no cavities through which the mineral elements could circulate. To hold that the ledge extends to the extreme limits of all evidence of mineralization is not a reasonable or practicable proposition in such a formation as this. If not there, where then? Not beyond the ore deposit line, or where such strong indications of it are found that the miner could work or explore with the expectation of compensation. It cannot be doubted from the evidence that far beyond the line where any miner, acquainted with this formation, would work for ore, there is much evidence of mineralized rock, quite similar to the material recognized as clearly within the ledge. So far as can thus far be concluded from all the evidence of ore developments, at and within a reasonable distance below the surface in the Stemwinder, I doubt that the apex proper in that claim exceeds 250 to 300 feet in width. Suppose, however, that it does extend beyond the west line of the claim; the only effect would be, under the holding of the Court of Appeals in the King Case, 114 Fed. 417, 52 C. C. A. 219, that, if defendant owns that surface, it would own so much of the apex as lies within it. What its underground rights would be, is a problem I am not called upon to now solve."
We are not prepared to hold that the court below was in error in the view thus taken of the evidence in the cause. But if it be conceded that the vein or lode be as extensive in width upon the surface as contended by the appellant, the priority of the original Stemwinder location over the claims of the appellant here set up being established, the extralateral right of the appellee would remain as fixed and decreed by the court below. Last Chance M. Co. v. Bunker Hill & Sullivan M. & C. Co. (decided at the present term), 131 Fed. 579; Empire State-Idaho M. & D. Co. v. Bunker Hill & Sullivan M. & C. Co., 114 Fed. 417, 52 C. C. A. 219; St. Louis V. & M. Co. v. Montana M. Co., 104 Fed. 661, 44 C. C. A. 120, 50 L. R. A. 725. and cases there cited.
The judgment is affirmed.
REGINA MUSIC BOX CO. v. NEWELL et al.
(Circuit Court, S. D. New York. July 11, 1904.) 1. PATENTS-INFRINGEMENT-ESTOPPEL TO DENY VALIDITY.
Mortgage trustees of a corporation licensed under a patent, who have taken possession of the property on default, and through their agents have continued the business and to manufacture and sell the patented article, placing the patent stamp thereon, are estopped to deny the validity of the patent when sued for the infringement.
In Equity. Suit for infringement of patent. On demurrer to bill.
PLATT, District Judge. The second ground of demurrer is the only one pressed by the defendants, viz.: That the letters patent in suit are absolutely void for want of invention, by reason of matters patent upon their face, or of which the court will take judicial notice. By filing the demurrer the defendants admit the truth of certain salient facts alleged in the bill, which I will recount as clearly and briefly as time and capacity will permit. Complainant, having title to letters patent for music box, No. 500,371, did, on December 4, 1897, sue for infringement one Alfred E. Paillard, who sold in New York the infringing product of the factory of a corporation, F. G. Otto & Sons, of New Jersey. Said corporation paid for the defense of said suit and furnished Paillard with counsel. On June 28, 1898, after proofs had been taken, it was agreed between complainant and said corporation that a decree for a perpetual injunction should be entered against Paillard, and that said corporation should have a license, which was not assignable, transferable, or divisible, for the full term of the patent. This was done, and the corporation did business in New Jersey under the license. On April 1, 1900, the corporation became financially embarrassed, and made a mortgage to Trumbull and Lewis as trustees. On May 18, 1903, said corporation defaulted in the payments of interest, and said trustees took possession. Said trustees placed Madison, Otto, and Schaub, who had been managers of the corporation, in charge of its business as their agents, and as such agents the trio conducted the business. After obtaining the license, the corporation naturally placed the patent stamp on the music boxes which it made and sold, and since the three officers and managers have been in charge as agents for the trustees they have continued to make and sell music boxes with the patent stamp upon them. The five parties are jointly sued for infringement.
Are the trustees in a position where they can avail themselves of the defense indicated by the demurrer? They insist that they can, because the license expired under its own terms by the transfer of possession. But they have permitted the former managers of the corporation to continue the manufacture of music boxes as their agents, and to place the patent stamp upon them, thereby leading the purchaser to believe
[1. See Patents, vol. 38, Cent. Dig. $ 184.
that the license still continues; and it would seem that in equity they are estopped from now attacking the validity of the patent, under which they were made by the corporation, and which it is now alleged the agents are assisting the trustees to infringe. It is not incumbent upon the court at this time to seek out the shoulders upon which the blame for the present situation should be placed, but certainly its aid cannot, in all fairness, be invoked in an enterprise which was not attempted by the corporation at a time when the path was plainly open, when it was furnishing the sinews of war to Paillard in the early litigation.
Let the demurrer be overruled.
WESTINGHOUSE et al. v. XEW YORK AIR BRAKE CO. et al.
On an accounting for infringement of a patent, complainant is entitled to recover the amount of the profits he would have realized, if he had made the sales which were made by defendant, where he was prepared to
supply the demand, although it may exceed the profits made by defendant. 2. SAME-AIR BRAKES.
Profits and damages for infringement of the Westinghouse patent, No. 376,837, for an improvement in air brakes, must be based on the sales by defendant of the entire triple valve structure, of which the emergency valve of the patent is the dominating feature, without which the entire
structure would be without marketability. In Equity. Suit for infringement of letters patent No. 376,837, for an improvement in air brakes, granted to George Westinghouse, Jr. On exceptions to master's report.
See 115 Fed. 615.
PLATT, District Judge. This wearisome contention ought to end at the earliest practicable date. I have tried to give it such attention as so large a matter deserves, and being well aware that my action is merely a necessary stepping-stone to the final outcome, I present my conclusions in all brevity, trusting that I may be credited with having performed my duties with scrupulous care, and insisting that silence upon many points before me in no wise indicates a lack of appreciative interest.
For obvious reasons, the law of the case must be accepted as laid down at the last hearing on the circuit. Any inclination toward an independent judgment upon the main question will, therefore, be sternly repressed, although it will not excite profound surprise if further proceedings shall carry the doctrine of Wales v. Waterbury a step beyond the point at which necessity compelled the master to pause in his supplemental report. I am satisfied that the master's action therein is based upon a correct interpretation of the decretal order, whether examined from the view-point of its letter or of its spirit. The opinion of the Court of Appeals (63 Fed. 962, 11 C. C. A. 528), coupled with the facts found by the master in his original report, and the position taken by defendants upon those facts—in short, the entire situation which confronted Judge Wheeler at the hearing-makes it impossible to suspect that he was influenced toward so narrow and astute a construction of the injunctive order as that which the defendants insist that he adopted.
q 1. Accounting by infringer of patent for profits, see note to Brickell v. Mayor, etc., of City of New York, 50 C. ('. A. 8.
See Patents, vol. 38, Cent. Dig. $8 567, 571.
The emergency valve could not be separated from the triple valve structure, the entire structure was an integral device, it was unitary, it had a catalogue price, and no way of dividing the cost existed; and then, again, the emergency valve feature was not only a part of the triple valve structure, but dominated it, so that without that valve the entire structure had no marketability, and, whatever may be said of the other equipments, it is beyond dispute that no buyer would take at any price during the period of the accounting the triple valve structure, unless the emergency valve were made a part of it. Such a structure the complainants were amply prepared to supply to any and every would-be purchaser. Structures containing the infringing combination were supplied by the defendants. The rule is clear that the profits which the complainant might have gained by supplying such demand are recoverable as damages which it suffered thereby. It is also clear that, if such sum exceeds the profits which the defendants gained, such profits can be enlarged until they equal the complainants' losses, but that the two amounts cannot be added together and charged up to the defendants. In this situation, the problem becomes an exceedingly simple one. The amount of profits which complainants would have made, if they had obtained the market supplied by defendants with infringing quick-action valve structures, would have been $128,397.10.
The master's report is accepted, and the above sum is found to be due to the complainants from the defendants, with costs.
BLUMBERG v. A. B. & E. L. SHAW CO.
(Circuit Court, S. D. New York. July 19, 1904.)
1. REMOVAL OF CAUSES-EFFECT ON ATTACIIMENT.
An attachment granted by a state court in a suit in which service was made by publication cannot be vacated by the federal court on removal, because the action is one in which such service is not provided for by the federal practice, but under section 4 of the removal statute (Act March 3. 1875, c. 137, 18 Stat. 471 [U. S. Comp. St. 1901, p. 511]) it must stand as it would in the state court, whatever effect the failure to obtain per: sonal service may have on its eflicacy.