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Opinion of the Court.
appeal was taken to the examiners in chief, which reversed the decision of the primary examiner, and held that Strong sras entitled to a patent; that, in accordance with such judgment, the Commissioner of Patents allowed the claims, received the final fee, and ordered the patent to issue, but, notwithstanding all that, “still withholds the patent for reasons known only to himself, and entirely contrary to the said express mandate of law."
In an annended petition, filed January 15, 1892, claimant sets forth that a patent was issued to him on October 27, 1891, in pursuance of the application of March 9, 1874, and that on January 15, 1870, a convention of postmasters, which met at Washington, recommended for adoption to the Postmaster General the boxes filed with the board, and known as the Strong boxes, and that it was the intention and understanding of the Postmaster General that the invention so adopted should be used by the government, and a reasonable and just compensation made for the use of the same.
In this connection, however, it is found by the Court of Claims that the two patents of 1869 were, on the 27th day of September of that year, assigned to Gideon L. Walker, and consequently that Kirk took nothing by the assignment to him of the same patents of January 6, 1881; and that the patent of February 7, 1882, was not included in the assignment to Kirk, but still appeared to be owned by Strong. It follows that the only invention or patent in which claimant appears to have any interest is that known as the “roundtop” box, which claimant holds by authority of the assignment of January 6, 1881, for which letters-patent were never issued until 1891, seventeen years after Strong's contract witli the government had expired. The court further found that the round-top letter-box was devised and adopted by the Postmaster General himself; that Strong was employed to model, manufacture and furnish these boxes for a term of four years, with such alterations and improvements therein as the Postmaster General might suggest; that a few days before the expiration of this contract, Strong filed a caveat in the Patent Office and made application for a patent for the
Opinion of the Court.
boxes so devised and adopted by the Postmaster General, which letter-box had been manufactured by Strong under his instructions; and that they had been in public use for more than two years prior to March 9,-1874, when Strong filed his application therefor; that the Postmaster General protested against the grant of a patent to Strong, and that the same was not granted until seventeen years thereafter.
Discarding, then, the patents of 1869 and 1872 as immaterial, the case resolves itself into the question whether the assignee of a person who did not invent the letter-box in dispute, who had no patent for it until after the suit was commenced, who had no contract to manufacture it, and who finally obtained a patent against the protest of the government's agent, can recover of the government a royalty for the use of the device upon the theory of an inplied promise to pay for such use. There can be but one answer to this proposition.
The application of Strong to patent a letter-box which he did not inrent was naturally suggested by the fact that his contract for manufacturing the same was about expiring, and he desired to foreclose others from obtaining a further contract by securing a patent for the box. If a patentee could under any circumstances sue to recover for the use of a patented article, made before letters were granted, (as to which it was held in Gayler v. Wilder, 10 How. 477, 493; Brown v. Duchesne, 19 How. 183, 195; Marsh v. Nichols, 128 U. S. 605, 612; Sargent v. Seagrave, 2 Curt. 553, 555; and Rein v. Clayton, 37 Fed. Rep. 354, that an inventor has no exclusive right before a patent has been issued,) it certainly could not apply to a case where the patentee was not the inventor of the thing patented; where the device had been in public use for more than two years before the patent was applied for; and where the government, so far from agreeing to pay a royalty for it, bad protested against any patent being issued for it. We know of no principle upon which a contract can be evoked from a distinct refusal of one party to recognize the rights of the other, and a formal protest against any such rights being granted to him.
Statement of the Cage.
Certain criticisms are made in the briefs of counsel upon the findings of fact of the Court of Olaims, but as no exceptions appear to have been taken thereto, and as the testimony is not, and under our rules cannot be, sent up with the record, these findings must be accepted as conclusive, and for the reasons above stated the judgment of the court below is
WIGGAN v. CONOLLY.
ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.
No. 225. Submitted Aprli 16, 1890.- Docided May 4, 1896.
The treaty of February 23, 1867, 16 Stat. 613, with the Ottaras and other
Indians, introduced the limit of minority upon the inalicnability of lands patented to a minor allottee, in that respect changing the provisions of the treaty of July 16, 1862, 12 Stat. 1237; and this limitation was applicable to lands then patented to minors ouder the treaty of 1867, and cut off the right of guardians to dispose of their real estate during their minority, even under direction of the court of the State in which tho land was situated.
By the first article of the treaty of 1862, negotiated Jane 24, ratified July 16, and proclaimed July 28, 12 Stat. 1237, it was provided that "The Ottawa Indians of the United
. Bands of Blanchard's Fork and of Roche de Boeuf, having become sufficiently advanced in civilization, and being desirous of becoming citizens of the United States, it is hereby agreed and stipulated that their organization and their relations with the United States, as an Indian tribe, shall be dissolved and terminated at the expiration of five years from the ratification of this treaty; and from and after that time the said Ottawas, and each and every one of them, shall be deemed and declared to be citizens of the United States, to all intents and purposes, and shall be entitled to all the rights, privileges and iminunities of such citizens, and shall, in all respects, be subject to the laws of the United States, and of the State or States thereof in which they may reside."
Statement of the Case.
The seventh article reads that—"Proper patents by the United States shall be issued to each individual member of the tribe and person entitled for the lands selected and allotted to them, in which it shall be stipulated that no Indian, except as herein provided, to whom the same may be issued, shall alienate or incumber the land allotted to him or ber in any manner until they sball, by the terms of this treaty, become a citizen of the United States; and any conveyance or incumbrance of said lands, done or suffered, except as aforesaid, by any Ottawa Indian, of the lands allotted to him or her, made before they shall become a citizen, sball be null and void.
“And forty acres, including the houses and improvements of the allottee, sball be inalienable during the natural lifetime of the party receiving the title.”
Esther Wilson, as appears by the census roll, duly certified by the Commissioner of Indian Affairs and the Secretary of the Interior, of date March 30, 1864, was an allottes under this treaty, and at that time a girl of the age of seven years. On December 1, 1865, a patent was issued to her for the land in controversy, the granting words of which are as follows:
“Now know ye, that the United States of America, in consideration of the premises, and pursuant to the third and seventh articles of the treaty aforesaid, bare given and granted, and by these presents do give and grant unto the said Esther Wilson and to her heirs, the tract of land above described : Provided, however, and these presents are upon the express condition, and with the limitation as required by the treaty aforesaid, that the said Esther Wilson shall not alienate or incumber the aforesaid tracts of land until she shall become, by the terms of said treaty, a citizen of the United States; and any conveyance or incumbrance of said lands, done or suffered by said Esther Wilson, made before she shall become a citizen, shall be null and void ; to hare and to hold the said tracts of land, with the appurtenances, unto the said Esther Wilson and to her heirs and assigns forever, subject to the limitation and condition aforesaid.”
On February 23, 1867, a treaty was negotiated between the United States and several Indian tribes, 15 Stat. 513, the scope
Statement of the Case.
of which is disclosed by this recital in the preamble: “Whereas it is desirable that arrangements should be made by which portions of certain tribes, parties hereto, noir residing in Kansas, should be enabled to remove to other lands in the Indian country south of that State, while other portions of said tribes desire to dissolve their tribal relations and becowe citizens."
Among the parties to this treaty were the Ottawa Indians. Certain amendments were suggested by the Senate on June 18, 1868, which were accepted by the Indians September 30, 1868, and the treaty proclaimed October 14 following. The third section provides for a cession by the Shawnees of a part of their reservation in the Indian Territory to the United States. The sixteenth recites that this ceded territory "is hereby sold to the Ottawas at one dollar per acre;” while the serenteenth section reads as follows:
“The provisions of the Ottawa treaty of one thousand eight hundred and sixty-two, under which all the tribe were to become citizens upon the sixteenth of July, one thousand eight hunclred and sixty-seven, are hereby extended for two years, or until July sixteenth, one thousand eight hundred and sixty-nine; but at any time previous to that date any member of the tribe inay appear before the United States District Court for Kansas, and declare bis intention to become a citizen, when he shall receive a certificate of citizenship, which shall include his family, and thereafter be disconnected with the tribe, and shall be entitled to his proportion of the tribal fund; and all who shall not have made such declaration previous to the last mentioned date sball be still considered members of the tribe. In order to enable the tribe to dispose of their property in Kansas, and remove to their new homes and establish themselves thereon, patents in fee simple shall be given to the heads of families. and to all who have come of age among the allottees under the treaties of one thousand eight bundred and sixty-two, so that they may sell their lands without restriction, but the said lands shall remain exempt from taxation so long as they may be retained by members of the tribe, down to