ant in the ordinary course of working the same or preparing it for iillage, as the case may be, or was taken from the public lands for the necessary improvements thereon. It does not appear from the plea herein that the defendant cut the timber in question from land then occupied by him for the pnrpose of mining or agriculture, or that it was cut from the public lands for maintaining the necessary improvements thereon. From all that appears, the defendant was unlawfully engaged in cutting timber from the public lands, and is at least liable to the plaintiff in damages equal to the value thereof. The demurrer is sustained.
UNITED STATES V. YOUNG
and others. tNo.773.)
SAME V. WHITE.
Action to Recover Damages. These two actions are also for trespasses upon the public lands in Baker county, and the demurrers to the defences thereto were argued and submitted at the same time as the demurrer in No. 771. In No. 772 the plaintiff claims $3,000 damages for the unlawful cutting of timber on that portion of the public lands that would, if' surveyed, be township 10 south, of range 37 east of the Wallamet meridian, with intent to dispose of the same, since January 1, 1879. The defence is that in 1872 each of the defendants entered upon 160 acres of public land, which, if surveyed, would be in townShip 9 south, of the range and meridian aforesaid, with intent to pre.empt the same, and erected thereon a dwelling-house and other improvements, of the value of $4,000, with timber cut therefrom; that in the same year the defendants located a placer mining claim in said township 9, and within a mineral district of the United States, of not more than 160 acres, for which they have since obtained a patent from the United States, upon which they cut timber to wQfk the same, and for the improvement of their agricultural claims, withIn the dates alleged; that the defendants, being citizens of the United States and residents of said township 9, did, within the dates alleged in the complaint, enter upon and cut and take from certain mineral lands situate in said township, and adjoining the mining claim of the defendants, for building, mining, agricultural, and domestic pnrposes, amounting to "certain trees and timber being and growing"
100,000 feet, which "trees and timber" were used for the purposes aforesaid; and that these acts are the same as those complained of. by the plaintiff. This defence has been pleaded and treated by counsel as one, but it really contains three separate defences to three distinct supposed trespasses. Ta the first and second the demurrer is not well taken. The defendants were .authorized to cut the timber upon their pre-emptions and mining claim as they did either under section 4 of the act of June 3, 1878, supra, or, if cut prior to that time, then under the construction given by this court in U. S. v. Nelson, 5 Sawy. 68, to theact of March 2, 1831, (Rev. St. § 2461,) to the effect that congress, by the enactment of the pre-emption, homestead, and mining laws, had so far modified that act that pre-emptors and others occupyingpublic lands unde! such laws might cut and use the timber thereon for the purposes of such occupation. But to the third defence the demurrer is well taken. The timber thereby admitted to have been cut was not cut upon the mining or agricultural claims of the defendants, nor upon the public lands, for the necessary improvement of said claims, but upon lands unoccupied by the defendants, and for sale or disposition to the public; for the averment that they 'were cut and used for "building, mining, agricultUral, and domestic purposes" comes far short of saying that they were so used by the defendants exclusively or at all; and if it should ever be construed as an allegation that the timber was used by the defendants, still it is not sufficient, as they were only permitted to take such timber from the public lands as might be necessary tomaintain the improvements on their mining and agricultural claims. In No. 773 the plaintiff claims $3,000 damages also for cutting timber on public lands in what would be, if surveyed, township 11 of range 42 east of the meridian aforesaid, since January 1, 1879. The defence in this case is that at the date of the commission of the acts complained of the defendant was in partnership with H. C. Hines, both of whom were American citizens and residents of the township aforesaid, and within a mineral district of the United States; and being so, cautled to be cut, upon the public lands in said township, timber to the amount of 75,000 feet, which was used for building, mining, agricultural, and domestic purposes within said mineral district. . This is simply a case 6f cutting timber on the public lands for sale or disposition to the public within the land district where cut, and,.
WILLIAM ROGERS MANUF'G 00. V. ROGERS &: SPURR MANUF'G 00.
under the ruling in No. 771, is a trespass for which the clefendants are liable to the plaintiff in damages equal to the value of the timber cut. The demurrer is sustained.
See TluJ Timber Cases, ante, p. 81
,WILLIAM RoGERS MANUP'G
(Uircuit Court, D. Massachusetts,
April 22, 1882.)
The right to use a trade-mark is one which depends on uso. 2. 8AME-USE OF NAME. Anyone has a right to the use of his own name in business, but he may be restrained from its use If he uses it in such a way as to appropriate the goodwill of a business already established by others of that name; nor can he, uy the use of his own name, appropriate the reputation of another by fraud, either actual or constnlctive. 3. SAME-ENJOINING USE OF NAME. Anyone who rightfully uses a name of renntntion as pllrt of a trade-mark in a particular businesa maj' t:IlJo.n its use by others.
In Equity. F. Chamberlain and O. H. Platt, for complainants. T. W. Cla1'k and B. S. Parker, for defendant. LOWELL, O. J. The plaintiffs allege that one William 'Rogers, of Hartford, had been a skilful 'manufacturer of silver-plated ware long before 1865, and had acquired a high and valuable reputation; and in that year a copartnership was formed between one Birch and one Pierce, who agreed with William Rogers that the firm should be called the William Rogers Manufacturing Company, and agreed with him and his son, William Rogers, Jr., that they might adopt and use as trade-marks, "J. Wm. Rogers & Son," and "1865, Wm. Rogers Mfg. 00.," and that they were so used until 1872, when the present corporation was formed, and bought all the' stock, good-will, etc., of the firm; that the two companies, successively, have used these trade-marks, from 1865 to the time of filing the bill, by stamping them upon their goods, and have taken great pains with the manufactureof the plated spoons, forks, and knives which they have put upon the market, and thus their goods have become favorably and extensively known as the "Rogers" and "Rogers & Son" goods; and