THE FRANK G. FOWLER,
I!lpring of 1867, and has continued therein ever since. He used chutes of different lengths, made tapering, and growing smaller to the end, which went into the cellar. The lower end would rest on the cellar window, or the place made to put in the coal. He used more than one at a time, but not frequently. He generally had three chutes,-one about 7 feet long, one about 12, and the other about 14 feet. Then if the place to put the coal in was 10 feet from the line of the street, he would use two chutes, would shove the small end of the one into the larger end of the other, with a trestle under where the connection was, and also a prop by the wagon,-being a seat, board, or something similar,-in order to hold it up to let the coal run into the cellar. He used the 14-feet chute and the 7-f!let together in that way, which was about the distance he ever used the chute. But in all these cases the coal was shoveled from the wagon into the chutes, which were not attached to the wagon in any way. This testimony exhibits the state of the art when the complainant appeareJ with his improvement. He has not very largely exercised the inventive faculty in what be has done. His combination is so simple that it seems wonderful that other persons did not think of it. But they did not, and if it has effected any new and useful result the law protects him in its exclusive use. The evidence reveals that by his combination of old instrumentalities a :oad of coal can be emptied from a cart into a cellar without the agency of a man using a shovel. This is a new result, worthy of the notice of the law, anD. jt, is the duty of the court to give to the patentee the benefit of his inventlO11. A decree must be entered for the complainant, and a reference made for an account.
(Circuit Court, S. D. New York. July 19,1883.1
LlExs. \\"here several collisions are caused by the negligence of a tow in f:llfi11in,g' a contract of towage, antl each claimant for damages arrests vess<.» at the same time to ·espond, there is no principle of the maritime law, aOlI no interest of commerce or navigation, which requires that the eider hen or, not gnilty of laches, and not having committed any waiver or abandonment, sllOultl have h:s claim postponed to that of the younger lIenor.
In tl.lis case I find the following facts:
At all times from the day of Novemher, 1880, to the twenty-fourth day of Deeemuer, 1880, uoth included, tha steam-tug Frank G. Fowler was engaged as a tow-uoat in Xrw York harlJor and Long Island sound, and the neighlJoring ,vaters. At and prior to Cle time of the tirst disaster rneiltioned, she was owned uy Esther Pitt, of Staten island, and was rUll by 'V. D. B. Janes, of Iliookl:-':l, as mortgagee in possession, or limIer a contract to purchase. Mr. Janes transacted the yessel"s uusiness at 124 Front street, in the city of New York. Suvsequently, and from avout NovemLer Ii1 See S C. 8 FED. REP. :>31, 340,
1880, she was owned by the Neutral Transportation Company, a corporation organized under the laws of the.state of New York, and having its principal office in the city of New York, of which the said ·W. D. B. Janes was manager. The place of transacting the tug's business continued to be at 124 Front street. On or about N ovpmber 4, 1880, ·W. D. B. Janes, on behalf of the tug, for a stipulated price agreed to be paid, entered into a contract with Henry S. Conway and Charles M. Conway, owners of the canal-boat Lockport and of her cargo, to tow the said canal-boat and cargo from X ew London to New York. On the Hallle day, in pursuance of said agreement, the tug took the canal-boat in tow at X ew London and started for:K ew York. In the course of the voyage, and at alJout 2 o'clock on the morning of NovemlJer 5, U,80, the canallJoat was cast adrift lJy the tug in Long Island sound, and, in consequence thereof, ditmages were sustained lJy the said Henry S. Con way and Charles M. Conway through mjury to the canal-lJoat and cargo, rund for which they, on the twenty-fourth of DecemlJer, 1880, filed their Tibel in the llistrict court of the United States for the southern district of X ew York, claiming 82,266.95. The damages arising through said injury to the canal-boat and cargo were ol:casioned solely by the fault and negligence of the pei'sons in charge of and navigating the tug. On or ahont the twenty-thinlof April, 1880, the Phcrnix Insuranl:e Company issued its policy of insurance for the sum of 86,000 upon the hull of the barge W. II. said barge lJeing of more than that value. On or alJout the nineteenth of XovemlJer, 1880, the Eastern Transportation Company, a corporation organized under the laws of the state of New York, and haYing its principal office in the city of Xew York, entered into a contract with the owners of the lJarge, for a stipulated price agreed to be paid. to tow the lJarge from Xew York to Stamford, ami from Stamfortl to Norwalk, COllnecticut, and on that day it started to tow the Ilarge to Stamford, where, afterwards, she safely arrivell, and was there left to llisc!wJ'ge part of her cargo. On the night of Xovember 24, 1880, the Eastem Transportation Company sent the said tug to take the barge from Stamford to X 01'walk, and at a very early hOllr on the morning of the next day the tug, with the barge in tow, left Stamford for Xorwalk. In the course of the yoyage, and lJefore daybreak on Xovember 25th, the barge was, through the negligence and mismanagement of those in charge of the naYigation of the tng, run on a ledge of rock at Shippan point, near Stamfonl, and there stranded. The rescue and repairs of the barge were directed and carrietl on by the Phenix Insllrance Company, as insurer. The repairs were completed on the twenty-third of DeeemlJer, 1880, and were paid for by the company on that day to the amount of 85,523.91. The eompany also paid the sum of 8750 for wreckers on or about the tenth of December, 1880. On the twenty-third of DCCl'mlJer, 1880, the Phenix Insurance Company filed its libel against the tug for the rccoyery of its damages. Process was thereupon on that day issued to the marshal against the tug, and on the of 1880, the marshal seized the tug under such process, and also under process issued under the first-named libel so filetl, the processes uncler the two libels lJeing sen-ell at one and the same time. and the tug being attached in both suits simultaneously. The damages of the Phenix Insurance Company amounted to :5'6.273.91, and haye been determined at that amount lJy the district eourt lJy a llnal decree. There has lJeen an interlocutory decree in the suit on the first aboYe-named libel, awarding to the libelants therein a recoyery of their damages, with costs, and a reference to ascertain such damages, but they have not been ascertained. The canal-boat was insured in the Buffalo Insurance Company. and Ule first aboYe-Ic:lmed suit is prosecuted, so far as the damages to the canal-boat are concerned, for the benefit of that company. On the eighth of XovemlJe-r, 1880, Henry S. Conway, with the representative of the Buffalo Insurance Company, consulted a lawyer with reference to their claim against the tug, and \"ere ad\ beJ tlut their claim was a good one. On that
'IHE FRANK G ·. FOWLER.
day Henry S. Conway informed Mr. Janes that the tug woulu be helu responsible for the damages. The canal-boat was at that time lying sunk in GUilford creek. Between the day of the casting adrift of the canal-boat and the date of the strAAlding of the barge, Henry S. Conway, who was master and managing owner of the canal-boat at the time of the disaster, was necessarily occupied in taking charge of her at Guilford creek, where she lay and in raising and saving her and her cargo, after engaging wreckers in New York City. It was not possible to ascertain the extent of the damage to the canal-boat or cargo until she was put On the marine railway at New Hayen, on or after December 1:3,11380. From Noyember 15,1880, to Noyember 25, 1880, the tug was engaged in towing between various points in New Jersey and places in the sound, in the state of Oonnecticut. She usually arrived at the city of X ew York from the eastward in the evening, laid up for the night in New .Tersey, anu left early in the morning, and she only touched Itt the city of Xcw York to report work done. Henry S. Conway and Oharles M. Conway resided in the city of Xew York, and were acquainted with 'V. D. B. Janes. The Buffalo Insurance Company had a resident agefit in the city of New York. On or about the seventeenth of February, 1881, the tug being in the custody of the marshal, the clllimant, the Neutral Transportation Company, made application for her appraisal and her release from custody under bOlllls or on deposit of money. Such appraisal was had, and the valuation of the tug was fixed at 84.500, which sum of money the owner of the tug paid into the registry of the district court, and the tug was released. At the same time her owner paid into said registry 8175 on account of costs for the Phenix lnsumnce Company, and 8175 on account of costs for Henry S. Conway and Charles .:\1. Conway, and also certain sums for marshal's fees and expenses of appraisal, all as provided by an order of the district court. . On the foregoing facts I find the following conclusions of law: 'fhe Conways were not guilty of any laches prejUdicing their lien or claim as between them and the Phenix Insurance Company. The claim and lien of the Con ways are entitled to priority of payment over the claim and lien of the Phenix Insurance Company. The Con ways are entitled to a decree acconlingly, with costs in this court to be bxed. Both cases must be remanded to the district court, "'ith directions to that court to proceed with the reference in the suit brought by the Con \Yays, and to take such further proceedings thereafter as may not be inconsistent with the findings and opinion of: thi;, court. The decree of the district court must be reversed :ts to the mat;., tel's appealed from. BLATCIJFOTID, Circuit Justice.
Br,ATCIIFQRD, J llstice. The district court awarded priority of claim and lien to the Phenix Insurance Company, and directed that the $4,500 and all accumulations of interest thereon be paid to it. The Conways appeal from such award and direction. The view of the district court was that the interest or lien of the Conways in the tug, growing out of the damage suffered by the canal-boat and cargo at the earlier date, was ual,le to respond for the damage to the barge at the later date. I cannot concur in this yiew. This is a case where there was no priority of attachment or seizure of the Yessel, although the libel for the second damage was first filed, and it is not a case where either claim can be considered as other than one sounding in damages for a tort. The contention on the part of the Phenix Insurance Company is that the claims arising out of the two torts are
Carpenter & 111osher, for the Conways. Hutler,. Stillman & Hubbard, for the Phenix Insurance Company.
to be paid in the inverse order of their creation, on the view that though they are claims of the same class they are not claims of the same rank of privilege. It may very well be that among creditors he is to be preferred "who has contributed most immediately to the preservation of the thing;" that "the last bottomry bond is preferred to those of older date;" and "that repairs and supplies furnished a vessel in her last voyage take precedence of those furnished in a prior But the principle governing suoh cases is that "t.he services performed at the latest hour are most. efficacious in bringing the vessel and her freightage safely t.o their final destination;" and that "each foregoing incumbrance, therefore, is ::u;tually benefited by reason of the succeeding incumbrance." This principle can have no place exoopt where services are rendered, such as loaning money, furnishing supplies, making repairs, salvage, and claims arising out of contract generally. Such services benefit tJle vessel, make her better, preserve her, contribute to save ner or improve her or keep her in running or going order for the benefit of all who have prior liens or claims 011 her. But a second tort or collision can have no to a party injured by a prior tort or collision. such e.ffect in The second tort or collision does not benefit the vessel or add to her value or preserve her. It only tends to injure her, and the sufferer by the first tort or collision, in having recourse against the vessel after the second tort or collision, must take her as he finds her, damaged, perhaps, by a second collision. He ought not to lose the benefit of his lien arising out of tile first tort or collision, unless the circumstances are such that in judgment of law he may fairly be held to have waived his lien, or postponed it, as regards the lien arising out of the secDnd tort or collision. In the present case there was no waiver or postponement. No case cited declares any doctrine which sanctions the giving of priority in the present case to the Phenix Insurance Company, except wllat is fonnd in the case of 'The America, 6 Monthly Law !tep. (N. S.) 264. That case is not sustained byauthority, nor is it sustainaLJle on principle. There was nothing in the mere fact of the second tort to extinguish the lien arising out of the first tort, and, wilen both torts were of the same cbamcter, each arising out of towards a tow in fulfilling a contract of towage, a.nd each claimant arrests the vessel at the same time, to respond, there is no principle of the maritime law, and no interest of com· merce or navigation, which requires that the elder lienor, not guilty of laches, and not having committed any waiver or abandonment, should have his claim postponed to that of the younger lienor. The decree of the district court must be reversed, as to the matters appealed from, with costs of tbe appeal, and priority of lien and of payment out of the fund be awarded to the Commys, and both cases be remanded to the district court, with directions to that court to proceed with the reference in the suit brought by the Con ways, and to take such further proceedings thereafter as may not be inconsist· ent with the findings and opinion of this court. M
l:l.6.N'J:A CLARA MINING ASS'N V. QUICKSILVER MINING CO.
SANTA CLARA UINING ASS'N V. QUICKSILVER MINING CO.l
(Circuit Court, D. California.
October 6, 1882.)
.MExICAN GRANT-LEG.H, AND EQUITABLE TITLE.
The holder of a Mexican grant containing a quicksilver mine conveyed the mine, together with 1,000 acres of Iaml surrounding the mine, to A., who went into possession, and he and his grantt'es contlllued in possession, working the mine for 25 years. After such conveyance the holder of the grant executed eo second conveyance to B., also embracing the mine and the land hefore co·.veyed to A. The grantees of B. presented the grant for confirmation, whil'h was duly confirmed, and a patent in due form was Issued to the confirmeeg, lIeld, that the legal title derived under the patent would he controlled for the benefit of the grantees of A., who held the better title under the first conveyance.
LOCATION OF LAND INDEFINITELY DESCRIBED.
",V here a mine, together with 1,000 acres of laml, II aronnd, circumjacent., and adjoining said mine," is conveyed by the owner of a larger tract, the land will be located as nearly as practicahle in a square lorm around the mine, taking the mine as the center of the location, and the grantor, b,r subsequent conveyances of the larger tract in two parts to other parties, cannot allect this right of location by the prior grantee.
MINING PART:"EUS-TE:-lANTS IN UmnWN.
",Vhere a mine, together with the surrounding lands, is conveyed to, and the mine is worked by, an unincorporated association of individuals in the usual mode, as in the case of mining partnerships III California, the members of the association are tenants in comlllon of the mine and the land so held. 4.
SAI,E UNDER DECHEE OF PUOPEHTY OF .MINING PARTNERSHIP.
'Where a bill is filed by a member of a mining partnership to wind up the affairs of the association, some "f the members being omitted from the bi,l because of the impracticability of bringing them all before the comt, and a decree is made d,ssolv.ng the association, directing the mines and lands of the company to be the debts to lJe paid, etc., and a sale of the mines and lands of the association is made in pnrsnance of the decree, the title to the undivided interests in the mine and lands of those not partie$ to the suit will not be affected by the decree and sale.
In Equity. TVm. l1Iatthews, for complainant. D. 111. Delmas, for defendant. SAWYER, J. This is a bill to control the title derived under a patent of the United Statf's issued to the Guadalupe Mining Company. The Mexican grant of the land was made to one Larios in 1845. He afterwards conveyed to a man by the name of Cook. subsequently conveyed to an association of persons, not a corporation, called the Guadalupe jlining Company, a mining partnership, or joint-stOCk company. The Guadalupe Company presented its claim for confirmation and obtained a patent. Cook, prior to the conveyance under which this patent was obtained, had conveyed 1,000 acres embracing the mine-l,OOO acres surrounding this mine -by an indefinite description, "around, circumjacent, and adjoining