herein waived a trial by jury, and submitted the whole matter of law and fact to the judgment of the court on the 10th day of January, 1888, and the court having taken time to consider of its judgment, it appearing now to the court that an opinion in writing by the district judge was filed herein on the 2d day of July, 1888, and in accordance therewith the district judge directed a judgment for the plaintHfto be entered by the clerk of this court, and that such judgment was so entered of record by the clerk on the 18th day of July, 1888, without the concurrence of the circuit judge in the said opinion, or in the judgment so entered thereon, in which said opinion, and judgment the circuit judge does not concur, it is ordered by the court that the said judgment so entered for the plaintiff on the 18th day of July, 1888, as aforesaid, be, and the same is hereby, set aside; and the court, upon the request of counsel for the plaintiff asking the benefit of a certificate of division of opinion, doth continue this cause for the entry of final judgment for the defendant until the next term of this court. A similar order was entered in the equity case.
BELL TEL. Co. V.CuSHMAN TEL. & SERVICE Co. et ale
(Oircuil Oourt, No D. lZlinoi8. October 29, 1888.)
PA.TENTS FOR INVENTIONS-INFRINGEMENT-INJUNCTION.
A telephone patentee, who has put his device into extensive use, and is receiving an income therefrom, is entitled to an injunction against its infringement, though he has withdrawn it from a particular state because of legislative interference limiting the. rate of charges:
In Equity. On motion for injunction plmderite lite. Bill by AIllerican Bell Telephone Company against Cushman Telephone & Service Company, for infringement ofletters patent. West & Bond, Geo. L. Roberta, and Chauncey Smith, for complainant. W. O. Goudy and C. A. Knight, for defendants. BLODGETT, J. This is a motion for an injunction plmdente lite by reason of the alleged infringement of patent No. 174,465, granted to Alexander Graham Bell, March 7,1876, and patent No. 186,787, granted to said Bell, January 30, 1877·. The validity of the claims of these patents, of which infringement is charged, was sustained by the supreme court of the United States in what is known as the Telephone Gases, decided at the October term, 1887, and reported at length in 126 U. S. 1, 8 Sup. Ct. Rep. 778. Defendants admit that they use what is known as the "Cushman rrelephone;" and the telephones made by that company were held by this court to infringe the complainant's patent, and the claims now in controversy, in the case of American Bell Teleplume Co. v. Oushman Telephone Co., decided in July last, (35 Fed. Rep. 734.) De-
AMERICAN BELL TEL. CO. V. CUSHMAN TEL. & SERVICE CO.
fendunts are engaged in furnishing telephone service and operating tele· phone exchanges in several cities in Indiana, and insist that an injunc. tion should not be granted on this motion because, a few years since, the complainant's grantees or licensees established telephone exchanges and furnished telephonic accommodations in some, if not all, of those cities, but withdrew therefrom after the passage by the legislature of Indiana of an act limiting the rates of charges for the use of telephones and telephone service. I do not think the fact that the complainant's licensees or grantees have withdrawn their telephonic accomodations from these cities furnishes any excuse or defense for the infringement of these patents by these defendants. The law gives the owner of a patent the exclusive right to the use of the device covered by his patent; and the rule that because the patentee, or owner of a patent, cannot with those who wish to use his device, as to the price to be paid for such use, authorizes another to pirate upon the patent with impunity, would be destructive of patent property. Counsel for the defendants insist that the main question involved in this case is the validity of the Indiana statute regulating the charges for telephone service, but I do not consider that question involved in this motion. It was stated on the argument of this motion, and, I doubt not, truly, that this question is in the way to be presented at an early day to the supreme court of the United States, which is the proper tribunal to pass upon it. But it would be strange indeed if when A. is the undisputed or adjudged owner of a patent which B. wishes to use, but B. is not willing to pay the amount demanded by A. for such use, therefore C. can lllfringe the patent, and supply B. with infringing machines, and not be restrained from so doing when the validity of the patent and infringement are clear. It was urged upon the argument that this court had decided in the former case of Hoe v. Knap, 27 Fed. Rep. 204, that a patentee who did not put his patent into use was not entitled to an injunction, and that decision was invoked on the argument of this application for an injunCtion. I, however, think that the case there made was another and widely different one from this. There the patentee had never made a machine, nor }Jut his patent into use, nor allowed another perSOll to put it into use. He had simply locked it up, so to speak, and kept the public froro the benefit of it. Here the patentee has put his patent into extensive use, aud is receiving a large income for such use at rates agreed upon between the owners of the patent and the user; so that this complaint does not stand as the complainant did in the case cited. An injunction will be granted according to the 'prayer of the bill.
(Oirc'Uit Uourt, D. 'Oregon. October 29, 1888.)
AND INFORMATION-DESCRIPTION OF OFFENSE-STATUTORY , CEPTION. " '
Where a statute declares an act done in the absence of certain circumstances , to be a crime, an indictment charging the commissiojl of such a crime must , negative the existence of such circumstances. An indictment under the /let of February 25,1885, (23 St. 821.1 for unlawfully inclosing a portion of the public lands, must show that the defendant is not any of the excepti'Ons permitting such inclosure. (Syllabus by the OOl/'I't.) : D.
PUBLIC LANDS-INCLOSING PuBLIC LANDS-INDICTMENT.
At·Law. Indictment for unlawfully inclosing the public lands. LewiJl L. McArthur, for the United States. Jamt8 F'. Watson, for· defendant;
DEADY, J. Section: 1 ofthe act of February 25,i 1 ?85, (23 St. 321,) .pr()hibits and declares unlawful "all inclosures of the public lands * * * by ariy * * to any or' which land * * * the person 11;, . or controlling .the inclosure had no claim or color of title DJade or acquired in g09d faith, or an asserted right thereto by or under claim made in good faith, with a view to .entry thereof at the proper under ,the general laws, of the, United States, at the time any such inclosure was or shall be made;" and.aection 4 of the act dechl,res that any person" violating any of the provisions" of the act "shall be deemed, guilty of a mis,demeanor," and fined not exceeding $1,000, p,nd i1Uprisoned not exceeding one year. . By the indictment in this case the defendant is accused of Ii violation of this statute in inclosing 640 acres of the public lands, in township 20 S., ot range 11 E., of the Wallamet meridian. The, defendant demurs to the ipdictment, because the facts stated therein do not constitute a crime. The demurrer to the first count, because ofa clerical omission, is confessed, while that to the second one is contested. ," It is alleged in this count that on August 1, lS85,the defendant "did .wrongfullya,nd unlawfully erect lj.nd construct an inclosure on the public Jands of United States, by which he without any lawful claim or polQr of title acquired in goodJaith, inclosed 640 acres" ofthe public .lands, as aforesaid. ", , . Thepointmade bycouns,el Qlqhe argument of the demurrer, is that the pleading does notnegatiye all the eXcfilptions ,contained in,the statute; that it is not enough to say that the inclosure was made "without any lawful claim or color of title acquired in good faith," but the indictment must go further, and negative the exception immediately following, by alleging that the inclosure of the land was not made under "an asserted right thereto, by or under claim made in good faith with a view to entry thereof at the proper land-office under the general laws of the United States."