THE TIMBER CASES.
(District Court, W. D. Mis8ouri.
PUBLIC LANDS-RIGHTS 011' SETTLERS.
September Term, 1881.\
Where a person enters upon public land with the view of pre-empting it, and before the expiration of the year during which he ought to have proven up his claim he homestea4ed his pr:e-emption, the pre-emption as well as the homestead must have been taken in good faith for the purpose of residence, settlement, and improvement.
SAME-RIGHT TO CUT TIMBER.
A person entering on the public land for the purpose of pre-emption, or to secure a homestead, in good faith, may cut the timber standing thereon for the purposes of cultivation, and after applying such portion as can be used for the improvement he may sell or dispose of the balance.
SAME-REsTRICTION AS 'fO RIGHT.
A settler on the public lands has no authority to go outside of the improve. ments, cut or sell timber, and thus denude the land and destroy the value of the public domain, even though he intends to acquire the title under his claim.
KREKEL, D. J., (charging jury.) The laws of the United States invite settlement on public lands for the purpose of acquiring homesteads. While doing so they seek to protect the timber, often constituting a valuable part of the land, so that the pre-emptor may obtain the full benefit intended. The law will not allow injury to the value of the land under either the pre-emption or homestead law. In the case before you the defendant first pre-empted the land, and before the expiration of the year during which he ought to hltve proven up his claim he homesteaded his pre-emption, thus obtaining an extension of time within which to acquire his homestead at a greatly reduced rate of cost. Whether such a proceeding was contemplated by the law it is unnecessary to determine, but I am inclined to think that it is at least within the spirit of the act. Both the pre-emption as well as the homestead must, however, have been taken in good faith; that is, for the purpose of residence, settlement, and improvement. Residence on the land alone, without intention of acquiring the land as a homestead, will not answer the purpose. From the testimony in the case you will have to determine whether the entry on the land claimed by pre-emption or homestead was for permanent residence and for cultivation, or for the purpose of cutting and selling of timber. A pre-emption or homestead claimant may cut timber needed for the improvements he is or contemplates making. The timber standing on the land intended for cultivation the claimv.ll,no.1-6
ant may cut, and after applying such portion as can be used, and is needed for the improvement for that purpose, he may sell or dispose of the balance to the best advantage. The law is not so unreasonable as to require timber which has to be removed for the purpose of cultivation to be burned or otherwise wasted, but will allow t,he preemptor to have the benefit of it to aid him in aucomplishing the design of the law. A settler on the public lands cannot, however, go outside of the improvements, cut and sell timber, even though he intends to acquire the title under bis claim, for he might at any time change his intention after the timber is taken, and thus defeat the object of the law. The length of time the defendant has been on the land pre-e')lpted or homesteaded, the character of the buildings erected by him, the work done towards making fields and improvements for farming, if any, the quantity and quality of the timber cut and sold, and the place or places where cut, whether the olaimant was relying on cutting and selling timber for a living rather than on farming,-in fine, everything pertaining to the case is to be carefully examined by you in order to arrive at the good or bad}aith with which the defendant held the possession of the land an,d did the acts complained of. The law presumes that he acted in good faith, and it is only when you are satisfied from the testimony and circumstances of the case that he did not so act, that you can find him guilty. The pre-emption and homestead laws should not be made use of to destroy the value of the public domain, and make it less valuable to those for whom the same is primarily intended;. namely, the settler and occupier. . The jury found the defendant guilty in the case tried.
and another v.
(Circuit Court, N. D. New York. January 23, 1882.)
m KNITTING-MACHINES. Where a portion of the structure was useless, and not sold to be used, and was not used in any infringing structure, the patent is not infringed in making and selling it, A.n article is not an infringemp,nt nnless it is to be used in the manner pointed out in the patent.
E. S. Jenney, for plaintiffs. E. Oaren, for defendant. BLATCIlFORD, C. J. This suit is brought on reissued letters patent No. 8,391, granted to the plaintiffs, September 3, 1878, for an "improvement in burrs for knitting-machines;" the original patent, No. 43,636, 'having been granted to W. H. Carr and M. P. Akin, July 26, 1864, for an "improvement in knitting-machine burrs," on the invention of said Carr. The specification of the reissue is not signed by Carr, but is signed by Campbell and Clute. It is as follows, including what is inside of brackets and what is outside of brackets, omit· tihg what is in italics:
"Figure 1 is an end view [.J Figure 2 [is] a side view, with part of the blades removed l.] and figure 3 [is] a section [as indicated by] at or about the lUnes] line z, z, in figure 1 [.1 of a knitting-lnachine burr embodying my invention; and figure 4 is a side view of aIle of the [wings or) blades [.] and figures 5 ,and 6 [are] perspective views oOhe two parts of the slotted hub which holds the blades, and figure 7 l is] a side view of the [screw bush] part by which the two parts of the slotted hub are secured together [.J with at burr; like Like l1etters of reference indicate like1parts [in the several] being marked by the same letters in all the figures. [figures of the draWings.] Before this invention burrs for knitting-machines had made with removable wings or blades, clamped in a slotted hub in such manner that the blades, when broken or W01'n out, could be readily removed and replaced by new ones, upon simply loosening or removing the devices by which the blades were clamped in the slotted hub, examples of such knitting burrs being shown in the specifications and drawings of English patent No. 10,724, gmnted in the year 1845, and l[nited /States letters patent No. 35,565, dated June 10, 1862. But, in such knitting burrs, the removable blades We1'e secured in a slotted hub by 1'ings or disks clamped against the late1'al edges oj' the blades, outside of the b'lotted part of the hub, at its ends; so that part of the body of the burr which held the blades had a considerably grea.ter thickness than the slotted parto! the hub in which the blades were inserted, wkich greatel' thickness rendered the burr much more bulky and far less convenient to 118e in some kinas of knittingma()hines that the common knitting burr ,having blades of like wi.dth soldered last in q,simple slotted hub. [This invention consists in the l1eculiar construe-