BLAClt f1. ELKHORN JrIIN. 00.
BLAClt t7. ELKHORN
MIN. Co., Limited.
(omuit COU'It IU' 4PpeaZ8.;1V'tnt;h OW-em4&.
1)0".. 1lf MINING CLADrs.
. .', ' The mere possessory right given by Rev. St. 5 2329. to tbe JO'O&tor of · mlntn, claim is not such an estate as that dower can be predicated thereon by state leg49 Fed. Rep. 649, disapproved. ,islation as against the United State. Or its
In Error to the Circuit Court of the United States for the District of Montana. . At Law. Action by Mary A·.Black against the Elkhorn Mining Company, Limited, to recover dower in a mining lode. A demurrer to the complaint was overruled. 47 Fed. Rep. SO,al$o, was a rer to new matter in the answer. 49 Fed. Rep. 549. Judgment for defendant. Plaintiff brings error. Affirmed. Word. 8miJh.k Word, for plaintiff in error. W. E. Oullen? (Goo. F. Shelton, on the brief,) for defendant in error. Before McKENNA, Circuit Judge, and Ross and MORROW, Distriet Judges.
Ross, District Judge. The plaintiff in error is the widow of L. M. Black, who, during his lifetime, and while plaintiff in error was his wife, owned ,an undivided two fifths of a certain mining claim. situate in the then territory of called the "A. M. Holter Quartz Lode." Black, on the 7th of Maroh, 1879, sold and conveyed his interest in the claim to one Burton, his wife, the plaintiff in error, not joining in the conveyance. In July, 1881, Black died intestate. The interest so ronveyed to Burton subsequently passed by various mesne conveyances to the defendant in error. On the 29th of October, 1883, an application was made to the proper United States land office by the immediate predooessor in interest of the defendant in error to enter the claim, and such proceedings were had in the matter of the application that on the 19th of November, 1889, a patent therefor was issued by the United States to the applicant. No protest, advers" c1l!'im, or objection of any character was made by the plaintiff in euor at any stage of the proceedinJ(s in the land department. A statute of Montana, passed in 1876, provides as follows: "A widow shall be endowed 01 the third part of all lands whereof her husband was seised of an estate of inheritanee at any time during tbe marriage. unless the same shall have been relinquillhed in legal form. Equitlloble estates shall be subject to tbe widow's dower. and all real estate of every description contracted tor by tbe husband during hislifetime,tbe title to which may be completed after his death." Section 1. LawilMont. 1876. (9th 8esa.) p. 68. This statute the supreme court of Montana decided. in the .C8se .of Chad'lJ1ick v. Tatem, 9 Mont. 354, Rep. 729, continue8 in foree. puder and ,by virtue of its provisions the plaintiff in error, on the20tb
of January, 1891,' commenced the present suit to establish lier alleged right to dower in. the The principal question presented and argued by counsel is whether a mere miniilg ;claim, an uDdiVided interest 'in whttlh is confessedly all that the husband of the plaintiff in error owned at the time of his sale and conveyance to Burton, and all that the vendee owned at the time deat.h,.is a upon to predicate a right of dower. ' Congress,by statute, conferred, with certain limitations not here necl,>e stated, on of mining claims, their heirsand aslts'they compifwith the laws of the United States, and with state, terJ,it<>,rial, and local regulations not in conflict with the laws of the lJnitedl!ltates govemingtbeir possessory titleright, of of all the surface include.tl-wftb)n,the lines locations, and of all veins, lodes. and ledges tbrodglto;nllttie1r entire depth;'th6top or apex of which lies inside of surface lines extended down ward vertically. althotlgh such veins, lodes, or ledges may so far depart from a perpendicular in their ,course downward as to exvertical,lllde,lines, of such surface, 19cation8." Rev. ,St. § : ", ) , ' ,. .. ,
It is apparent that the possessory right thus conferred upon the locator may be, and often is, of great value, and it has been many times andotlrol1l!mghly settled, that:such claims may: be sold,.t.miet:rew, inherited. Butthe:thingso granted or ,can, only be tbl:fltbingthe grantor, or :dooed:ent, as the. caSe is. to st1,t'he .right to'explbrethe mine and' exthe' existing" laws and' regulations u pon provided thlit ,the looators of such claims· may\p'urchasetfie',ptoperty; and has presC'rib'ed terms and whieh,thegovernr11Emt title nlaybethus acqUired. Re\'. fat. §§!.!825-a840i'> is not compelled to buy. ,He may neverdos[)J" " ,iA ll()tab:le'lihstil.me of thissorll is shown in the' case" of Forbes :S.' 762;!'where it is said by'the eupretnecourt that the' OOdsoUdated, ¥irginia; MiI1ing Oompany, for the purpose of evading Billtrite'tak':upontha mine it was possessed, of and working , permittedjts ih'Vestinent in the D)ine, said to" be worth from $50 I 000,000 to $100.004>,O()O,;torest on: such a bare claim,"this mere possessory right,whentit Mllldat'aJ ridiculously small-sum compared to the yatue of the mine obtain the government's title to the entire land, soil, eral the right given to possess, explore, and extract the minerals·froorthe located,'clailnis not made dependent upon anil.ppli. cation it, in plaoy instances tHere is never even an application to O,y or his successor in interest. · In WrR9suchapplication '.Vas made prior to the the of the plaintiff in error. The government's offer t'o seUthis' clai ID nad<'f1(jt and no step of any'natilre id'tbeacquisition title'ofthe United States therew had b-eeb' tlikeh1bythe locators; successors in interest, up to ana
for a long time after that. event. The title of the United States was and u:ninoumber,ed. No legal reason exwhy congress could not then have withdrawn the property from sale; or IDflde any other disposition of it. That the government. in its wisdom and generosity, continued to permit the locators to enjoy the fruits of its propl:lrty by extracting the minerals therefrom, and that a right thus conferred upon and enjoyed by locators constitutes property, and of great value, which is treated by the courts and legislatures of various states as realty in dealing with the rights of ants thereto as between themselves and third parties, in no respect affect the true title tethe property ,which all the time remained in the United Sta-tes free and unincumbered, because its offer to sell had not been accepted, and it had done nothing to part with its title. To hold that the title thus held by the government can be in any way affected 01' incumbered by any state legislation would be to restrict, to such extent, the absolute and undoubted right of cotlgress to dispose of the lie property of the United States as it deems best. While the possessory right to which reference has been made constituted in the locator, owningand.,enjoying it, property of value, which could be sold, transand inherited, and,we may add. forfeited by ahanferred, donmen,t, copfllHtuted, and' o&uld, constitute, no legal interest or esintb'etprOper,ty as againstthe United States or its grantee, whose could not be burdened by the right of dower, orotherwise,by tUll of any $tRte,Jegislation.,.At @y time priOl' to coptracting to purchase the, ptoperty the ,may abandon the claim. Is the ernmet,\Uobeheldpoundc to convey the claim while; the locator is at libertytoabalndon:i,t? .SuchabandIJnment often occurs from oue cause Or, another;"sometiUles becaUse t.he claim proves 'to, be worthless, in lQany after the locato;ll bas enjoyed au of thesubstantial fruits of ,by. tl:1e .all or the ;paying ore.. ' This thegovernment p;erPlitsto be :done.inpurs\lance of the eminently wise po1icr of encouraging the discovery, exploration, and production of the precannot properly be said to be legally bound to do 80. "Norwquld it seem that any equitable principle would be violated should congress see prOper to terminate the possessory right conferred by it where the 10ca:tor; or his successor in interest, as in the case before the court in Forbes v,Grace!J" supra, persistently declines, while reaping the fruits by e;x:tracting the subslance of the property, to accept its offer to part with the titlefor.a mere pittance compared to its value? It is the established doctrine in respect to a pre-emptor entering upon the public landof the United States, under the provisions of the late pre-emption law, that his settlement. "even when accompanied by an improvement of the property, did not confer upon the settler any right in the land as against the United States, or impair in any respect the power of congress to dispose of the land in any way it might deem proper; that the power of regulation and disposition conferred upon congress by the constitution only ceased when all the preliminary acts prescribed by law for the acquisition of the title, including the payment of
the pril:leoUlul ,limd, had beeD pefformed by the and that; utitil, allot requhements' ;hudtl\<reen complied the settler had only tbeprivUege to purchase in;' preference ,to: tithers in case, the governIrieIttshouldsell. Shepleyvl Cowan, and authorities tWrecl,ted;, In the 'case of the 'pre-emptor theethttlterequired the ap· plioation,to pUfobaseftbelll.nd to be:tnadewit:lrint\'designated time, While in the, c8l8eof Q:looatol' i ofa mirlingclairnthere is no such limitation; and the,pre..emptOr wasdeniedthlii privilege of' conveying' his interest prior to'fNrohase: from the govern:d1ent, while the locator of a mining claim i,a1lcoroed that privihige.Butit is not perceived >that these differences'make inapplicable here the principle govElrning the rUling in respect totlierights of pte-emptors upon the public lands aftet settlement, accompl:l.niedU1i)y improvement of:.the property,but before its entry. For stated,we think it very clear that a mere locator of a. mining claiml"iowning onlythe"possessory right confertedby the stat..: ute, has ttosuchestate in the prdperty", asagailistJthe United Statea or its gmnteeJ jas that the rights ofIdower can be predicated thereon by virtue of any :state legislation. ' , It is equally olear that; .if,tnecommon law could be resdtted to, no such right :would exist.·; 'The interest of a ,locator, of a mining claim is, in somemspeoul)lot oopyholder at common 1aw. Both had their01'igiD in local custom ,iand in' each the cuatom crystallized into law. Theioopybolderheldhis!la:nd by the custom of themanor.·and, whilethe:£eeremainedin the lord,theright to the possession and enJoyment of the premises was in ,him. , He might alien his lands 'at will, andonhis,j death they descended ,to his heirs. His estate might be taken inexecution for the payiment of his debts, and, if he became bankrupt, itpassed,;to his truetee. But', unlike the locator of a mining claim, the copyholder held upon no condition. · He did not have to complywitlif'rules and regulations established by the Jaw of the manor, nor could under which be held be changed at the will of the lord.; I I <He was not required to: perform labor or make improvements upon' t4el$nd annually, or,t all. copyholdEirwas practically a freeholder, and yet; becl'tuse the fee waS in the lord, the common law. which'Ql,vored dower, denied it to the widoW. 1 Scrib. Dower.p. 363; J)ulltcan'v.'Pho8phat6Od., 137U. S. 652, 11 'SUp. Ct. Rep. 242. Astbeviewsabove expressedgoJ to the rootof'the case of the plaintiff in error, the judgm'ent of the court below, which wasaga.inst her, though based on other grounds, must be affirmed, withoat,: reference to other and argued by counsel. Thejudgment is accordingly affirmed. ' , ' ,,
BY. co. ,,;
BUTTE CITY ST. BY. CO.
Court, D. Mqntana. November 21, 1m.)
,No. IS, 1. PATBIt't1l
:rOB Il'lVi:lftIOlfll....,;ANTIOIPATION-pinORITT 011 INnNTIOlf-PRBIIUMP'l'lONII. No.8O!!I;,863" to.. Henry Root, for 8 track brake for railw,ay C8rs,Was
not anticipated by the prior patent issued, ,to Patterson, Sepwmber 25, 1888. for the Root patent was issued after a hearing cin an intorferencetberewith in the patent office; '¥ld in, if the two patents cqver inventiol\, the IBBuance of tbe· laIIll' one lB primafacl6 el'iaence that the patentee, tbereof was the 1irsli , inventor. ' " ' .,' The Rootilat.llnt IB 'not void as being'a mere: aggregation of old element8,fortbe " bra1l;e COJ:lSifirW (If tW\ltoggle, levers, one operatingupOI1 ,the otber"whichis atac,' Jevin,g, a new, nt, w,hen aidell by and uliUity from the of the patent, to sUBtBln tbe!same.,' ", ",'", ' . , '.', ' , ",' 8" DIlIF,BRENOE. , ,,', :' The' pBtent is infringed' by' a car brake which Is the lIame hi construction and e,xeepllipg' that l,Q..the patent the :1irllt toggle. lever ,III, connected directly with the rock'shaft, while in defendant's device it.1a connected therewith by an intetmooi.te 'roll or link.. ", , ", : '
B. BAMB...:.lwn'ltTION-AooREGA.TION""';Cu BRARBB.
.· In the Pacific Cable Railway Company against the Butte Cify, Railway Company for infringement of a patent. 'Decree for cOlnpl.lljnant. ' " ,Wm. F. IloO'tli and Di:ron k Drennen, for complainant. Goo. 11. 1(night, F. T. McBride, and Goo. Haldorn, .for d,efendant.
· . j , ' ,
KNOWr..ES, District JUdge. Plaintiff is the assignee of patent No. one Henry Root for a track 304,863, issued by the United brake fortailway.cars. Plaintiff sues defendant in this action for an infor fringement of these letters patent. The suit is one in equity, an accounting from defendant ,for the profits it may have derived by the use of saidbmke, ,and to''l'estrain defendant from any further use of said brake. devjce, atidfor other relief. The defendant makes several defenses to this a.ctiOD. of plaintiff. They are: Pirst, noninfringement of said letters patent; 8eCQ'1Ul, anticipation. of the device named in the patent; and, tAird,that the claim of plaintiff is for an aggregation of elements, and notp8ltentable., , ,Conl!idering the first defense, it appea.IrS'to the court.from the evidence that the two 'brakes' of plaintiff and defendant respectively are substantially the same. They are used in the Bame way, and iniended.to accomplish the llame end. ,There is no pretense on the part of defendant but aU themoohanieal'contrivances in tlie one are the same as those in the other, Bave .as' to one feature. This featUre is the matiner in which the knee toggle levers in each brake are connected to a rock shaft. ' Eacbdevice has called a rock or rocking sbaft,' and each bas. knee or toggle levers