:FEDERAL REPORTER, voL 49. NEW ORLEANS
PAINE, U. S. Deputy-Surveyor.
(O£rcuit Court, E. D.Lou1.Biana. February II, 1892.)
PUBLIO LAND GRANT8-LoOATION-JURISDICTION.
In the case of publio grants of land without definite and ascertained limits, the llOurts cannot protect the alleg-ed rights of the grant-owners until they are located by Ilublio survey, adopted, and approved; and the mere deoision of the seoretary of the interior as to the proper boundaries will not give the oourtsjurisdictlon to collt1'll1 the subsequent oillcial survey directed by such decision.
01> SECRETARY Oil' INTERIOR.
The secretary of the interior fixed the meaning of the words, "as far as Lake Ma!lrepas,l' as contained in the aucient Spanish known as " Dupard's, "to mean as far as a line drawn from the lowest POlDt of the southern shore of the lake at'right angles to a line drawn from the Mississippi river through the oenter , of the grant from front to rear j an,d the surveyor general, directed to make the survey under suoh decision, ascertained and fixed the lowest point on the southern shore of the lake as it was looated in 1769, the date of the grant. The succeeding seoretaryof the interior did not apprpve &Dch survey. and directed.it to be made npon the basis of the boundary pf the lake as it existed in 1888, the date of the former secretary's decillion. that the court was without jurisdiction to Interfllra to restrain sucll. survey on the ground that the rights of the owner of the grant were conclusively fixed by the decision of the secretary of the interior, and would be taken away under the guise of such decision.
InEquity. Bill filed by the city of New Orleans against R. B. Paine, United States deputy-sutveyor, to enjoin a survey. Hearing on bill, demurrer, e:x:hibits, etc. Injunction denied. J.L. J!'l'adford, for complainant. Wm; Grant, for defendant. ,BILLpmlJ, District Judge. This cause was heard upon the bill itself and exhibits, upon an application for an injunction pendente lite, and upon the demurrer. The cause is really to be heard and decided on the bill, of complaint so far as its allegations cover the matters involved, as it is met on the part of the defendant by a general demurrer. The case made by the bill is as follows: The city of New Orleans, as legatee under the McDonough will, had vested in it a complete grant, known as " Dupard's, " made by the Spanish government before the cession of the of Orleans to the United States, the grant bearing date in 1769. This gra.nt had been recognized as a complete grant by Secretary Lamar. 6 Dec. Dep. Int. p. 473. The only question left open by his decision is that of the point from which the northern boundary of the gra\lt..should start as the point of beginning in actual survey. Secretary in 1888, fixed the meaning of the words contained in the grant, "as far as Lake Maurepas," to mean as far as a line drawn froDl the lowest point of the southern shore ofLake Maurepas at right angles to a line drawn from the Mississippi river through the center of the grant from front to rear. The surveyor general was directed to make the survey under this decision, and he made it, ascertaining and fixing the lowest point of the southern shore of the lake,as that body of water was shown to have been located in 1769, the date of the grant. The survey so made was never approved by the department, but, on the application of the commissioner of the general land-office, Acting Secretary Chand.
CITY OF NEW ORLEANS 'l1. PAINE.
ler, in 1891, disapproved of the survey already made,which was, as has been stated, upon the basis of the starting point of the boundary as the lake existed in 1769, the date of the grant, and directed instructions to be given to the surveyor general to make the survey upon the basis of the starting point of the boundary as tne lake existed in 1888, the date of Secretary Lamar's decision. To arrest and enjoin this last survey the bill is filed. The solicitor for the complainant urges that under the decision of the secretary of the interior the rights of his client were conclusively fixed, and that under the guise of interpreting that decision his rights are to be totally taken away; that the decision meant to refer to the lake as it was located at the time of the grant, and that such has been the change in its location since that time -that to make its present location, or that of 1888, the basis of boundary, would leave the city of New Orleans no land whatever unaer this grant; that, the right having been fixed, the court to interfere to prevent erroneous and destructive construction of a decision which the department does not attempt to change, but only interpret. The solicitor for the defeudant, the district attorney, on behalf ofihe defendant, besides his argument on the merits, presents to the courttheobjection that the coart is entirely destitute of jurisdiction to interfere with the survey in the present state of the case in the land department, and upon the facts presented by the bill. It is this,question of jurisdiction or authority alone upon which I feel called upon to pass. I think, with reference to this question, two are found to be the result of all the decisions of the supreme courtofthe United States: First, that, where there is a complete grant of Ii. specific tract ofland ac'; cording to ascertained boundaries, the grantee may sue in ejectment, and protect his rights through the courts. 8eccrndly, that where, and to the extent that, there are no ascertained limits, these limits must be ascertaIned by the executive department, which is bylaw charged with that duty, and that courts of justice cannot, in the first instance, fix by metes and bounds· the location of the grant. This results from the fact that the administration of all the lands, public and private, was,. upon the cession, vested in the first instance in the United States government, -the public lands, forthe purpose of sale and practical location; the private lands, for the purpose of practical location and separation and demarkation from other public lands and private lands. It would open the door to endless confusion unless these grants which needed definite location by the ascertainment of boundaries and by' survey were first, by practical survey, to be severed by the public domain, and sepa.rated from the lands of others. Most certainly must this be true of a grant, one boundary of which needs to be determined before a conclusive location and survey could be made. I am aware that there is a distinction between complete grants, with completely ascertained boundaries, madt:. before the cession to the United States, and grants made atterwards. But even in the former case, where, as here, a boundary is claimed tv be established through the decision of the secretary of the interior by
GRIGGS t1. PEl\RIN.
PE1mIN fit at.
(C'WouU Oourt, N. D. NewYo'l'k. FebruarrlJ, 1.89lI.)
The copyright of abOokdescribinjf a new system of stenography' 'does Dot llt'O" teet tbe system,when coniidered simply as a system apart from the language by which iUs explained, so as to make the illustration byanotber of the same system in a diferent book; el)1plo11ng totally different language, an infringement. .
In Equity. Motion injunction. Denied. Th&el:)lllplainantis:the ownerofa copyright of a book, written by, J. George Cross, entitled;" »-lectic ,At the January term, 1890, a motion was made for a preliminary injunction. The defendants denied infringement. The issue thus raised was referred to a master to take proofs and report. The master reported that the complainant's work as a literary production only was protected; that the system of phonetic writing explltinetl in the book not the subject of a copyright; and that there is no proof that the defendants have copied complainant's book considered merely aEl Ii literary production.' . The master says: II My conclusion, therefore, that while the matter explanatory of the systeID , whether,the; systemis >Qld one or.new and original, is the !,!ubject of a illustrates is not the subject of a copyright;UUit there being noproof·tbat the copyright of ,the Eclec4c is init merelyasrtn explanatory work, 'unless the copyright it an exclusive right 'w the sYliltem set forth, complainllnt is not entitled to the relief demanded." The master does not decide that the. d'8fen!lants have, copied the Complainant's systeUi, but he does. dedde,thaitl the copyright does not prevent them from, publishing a. different work explanatory of a similar system. The motion now comes, on to be heard again upon the master's report and exceptions thereto,.filed been by the complainant. Thetestimony taken by the master has printed or brought to the attention of the court. . Alfrw,.Wilkinson, for complaipant· .ArthurSt6't.£art, for ·defendants.
CoXE, District Jndge: The only question decided by the master and discussed at the argument is whether or not the copyright of abobkdescribing anew art or system of stenography protects the system"when eonsideredsimplyas a. system, apart from the language by which thesystem is explained, so that another who illustrates the same a difl'erent book, employing totally different language, can be an infringer. It is thought, upon the authority of Baker v. Selden, 101U. 8.99, that the master Was right in the conclusion reached ,by him. A ;party imay invent a new machine 'and write a book describing it for which he may obtain a copyright. This does not prevent another authorifrbt'Ddescribing the same machine. He mllst not copy the copyown. S!l with a process1 a system or an art, the fact that one person has described it and obtained