85 FEDERAL REPORTER.
ing functions described, which are not found in the regulators made by the appellee. The thermOliltat of the appellant is onelling; that of the appellee is another; The differences are so clearly developed in the opinion delivered below that a further discussion is deemed unnecessary. The decree below is affirmed..
BALLOU SHOE-MACH. CO. v. DIZER et ai.2l (Circuit Court; b. Massachusetts.
A preliminary injunction will not issue against a mere user of a machine when plaintifl'shave known for several years that the thereof were manufacturing such machines, and did not warn or proceed against them or anyone else. .
This was a suit in equity by the Ballou Shoe-Machine Company against O. M. Dizer and others foralIeged infringement of a patent. The cause was heard on a motion for preliminary injunction. T. W. Olarke, for complainant. E.P. Howe, for defendants. LOWELL, Oircuit Judge. This is one of those cases in which the complainants should be required to take the· testimony in the regular way befo.re an injunction. The machine which they proceed against was made by the Goodyear '& McKay Sewing-Machine Company, and is by them leased to the defendants. The complainants have known for several years that the above-named company were making these machines, and have not warned them, nor proceeded against them, nor against anyone. The only reason given for the delay is. that it would be more convenient to proceed in Massachusetts, where the plaintiff company have their usual place of business., but this does not appear to be a sufficient' excuse. Add to this that there is a fair doubt in my mind whether the defendants' machine is an infringement of the twice reissued patent of the plaintiffs, and I find that the motion for a preliminary iJ;J.junction should be denied. Motion denied.
1 This case has been heretofore reported In 5 Ban. & A. 540. and is now published in this series, so as to include therein all circuit and district court cases elsewhere reported which have been inadvertently omitted from the Federal Reporter or. the Federal Cases.
BOLLAND TRUST CO. V. INTERNATIONAL BRIDGE & TRAMWAY CO.
HOLLAND TRUST CO. v. INTERNATIONAL BRIDGE & TRAMWAY 00. McLANE et al. v. HOLLAND TRUST CO. (CIrcuit Court of Appeals, FIfth Circuit.
JURISDICTION-FoRECLOSURlll 011' MORTGAGE-RECEIVER.
March 1, 1898.)
Under a decree of foreclosure of a mortgage, where an order of sale has been made and the sale advertised, the court acquires jurisdiction and possession, to the exclusion of any other court; and the appointment of a receiver for said property by another court does not divest jurisdiction and stop the sale.
Appeal from the Circuit Court of the United States for the Western District of Texas. Oscar Bergstrom and S. C. Newton, for appellants. Geo. M. Van Hoesen, for appellees. Before PARDEE and McCORMICK, Circuit Judges, and SWAYNE, District Judge. PARDEE, Circuit Judge. The Holland Trust Company, as trustee under a mortgage deed of trust, brought suit on the 16th day of September, 1895, in the United States circuit court for the Western district of Texas, for the foreclosure of the mortgage which was made to it by .the International Bridge & Tramway Company. The defendant bridge company appeared and filed its answer, and then filed an amended answer on February 3, 1896. The bill of foreclosure prayed for the appointment of a receiver and for an injunction, but no motion for either an injunction ora receiver was made. On November 10, 1896, the court entered a final decree, adjudging a foreclosure of the mortgaged property, and the sale of the same by a special master, therein appointed. From this decree the International Bridge & Tramway Company prosecuted an appeal to this court, where, on May 17,1897, the decree of the lower court was affirmed; the mandate ing August 2, 1897. 81 Fed. 422. August 16, 1897, the court entered an order of sale, which directed the special master "to seize and sell the above-described property in accordance with the terms of the decree of this court." On August 19, 1897, the special master proceeded to execute the order of sale by advertising the time, place, and terms of sale. The time of sale fixed was November 2,1897. On October 30,1897, Hiram H. McLane filed a petition in the Forty-Fifth district court of Texas, praying for the appointment of a receiver of the International Bridge & Tramway Company as an insolvent corporation, and on November 1, 1897, the day before the sale, George W. Russ was appointed such receiver, and on the same day telegraphed to the agent of the bridge company that he had been appointed receiver, and the agent recognized such appointment, and has since paid over to Russ the income and tolls. On November 2, 1897, the special master sold the mortgaged property under the decree and order of sale, and reported the same to the court. On November 10, 1897, Hiram H. McLane and George W. Russ filed an
85 FEDERAL REPORTER;,'
alleged intervention, in which the aforesaid proceedings in the FortyFifth' of Teta$,' and the acts Of Russ as set forth, and therein claimed, that because of the sale made by the special master was absolutely null and void. and of no force and efl'ectOn the same day the interv-ention and the report of the sale came on to be heard, and the court, after considering the facts in the case, being of opinion th.at the circuit court had acquired such j;lll'iSJiiction over the' property of the defendant,the International Bridge & Tramway Company, fully described in the original bill, as well as in the final decree and order of sale, as to entitle the court to hold the exclusive jurisdiction and possession thereof, to the exclusion of any other court, ordered that the intervention of McLane and Russ should be dismisSed, and the sale madeby' the special master confirmed. From that decree McLane and Russ appealed to this court, assigning as error:
. "That the court erred in its finding, and inholding a suit to foreclose a mortgage on realty, and the final deCree of such foreclosure, and order appointing a to satisfy the judgment rendered, gave the special master to make sale' court such possessory jurisdiction of the property described in the bill of foreclosure as to deprive any other court of concurrent jurisdiction from appointing a receiver ,and directing such, receiver to take possession of. saill property, and in its holding that, notwithstanding the appointment of such receiver by a court of concurrent jurisdiction, imd. 'such receiver, under the direction of the court, taking' actual possession thereof, that the master tn the foreclosure proceedings could IIlIlke a valid sale of such realty, and, that, upon a confirmation. of such report, the court in the foreclosure proceeding could direct the marshal to put the purchaser in possession as against such receiver and the defendant."
On full consideration of the authorities cited on both sides in this court, we agree with the learned jUdge ofthe circuit court that the circuit court had acquired such jurisdiction over the sp'ecific property of the defendant the International Bridge & Tramway Company, as fully described in the original bill, and in the final decree and order of sale, as to entitle: the court to hold the exclusive jurisdiction and possession thereof, to the exclusion of any other court. The follOWing cases are in point: Adams v. Trust Co., 15 C. C.A.1, 66 Fed. 617, decided by this court, and Riesner v. Railway Co., 36 8. W. 53, decided by the supreme court of, Texils. And on these authorities, and many others which might be cited, and on the general rule, well recognized in the supreme court of the United States, that as a matter of necessity, and therefore of comity; when the object 'of the :action requires the control and dominion of property involved in litigation. that court which first.acquires possession, or that dominion Which is equivalent, draws to itself the exClusive right to dispose of it for the purposes of its jurisdiction (Heidritter v. Oil-Oloth Co., 112 U.S. 294, 305, 5 Sup. Ct. 135), the decree of tlte circuit court should be affirmed. It would be an anomaly in judicial proceedings if, after a court with full jurisdiction over the parties, and over specific property which is the object of the- litigation, has finally determined all rights to that property, subsequent proeeedings, prima facie collusive, as in the present case. in a court of another jurisdiction, could annul the decree and disturb the rights thus definitely determined. No such anomaly exists in the jurisdiction' of the state and' federal courts. The latter,
MONTANA ORE-PURCHASING CO. V. BOSTON &: M. C. C. &:
having once acquired full jurisdiction, and proceeded to a final determination, may rightfully proceed still further to an execution of that decree, irrespective of any subsequent proceedings in the courts of the state. See Coal Co. v. McCreery, 141 U. S. 475, 477, 12 Sup. Ct. 28. The authorities cited by the learned counsel for the appellants, so far 8.8 they are contrary to the views herein expressed, do not apply to ease in hand. Affirmed.
MONTANA ORE-PURCHASING CO.et al. v. BOSTON &; M. C. C. &; S. MIN. CO. (Circuit Court
ot Appeals, Ninth Circuit. February 28, 1898.)
IURISDICTION 011' FEDERAL COURT-FEDERAL QUESTION__MINING CLAIMS.
Where a controversy between owners ot adjoining tnining claims lUI to the right otone to tollow the vein outside of the vertical line of his claim clearly depends upon a question of fact under the statutes as finally construed by the supreme court, such controversy no longer presents a federal question. .
Appeal from the. Circuit Court of the United Etates for the SoutherlJ District of Montana. John J. McHatton and JoelF. Vaile, for appellants. John F. Forbis, for appellee. Before GILBERT, ROSS, and MORROW, Circuit Judges. MORROW, Circuit Judge. This is an appeal from an interlocutory decree entered in the circuit court of the United States for the district of Montana on the 22d day of April, 1897, granting a preliminary in· junction restraining the Montana Ore-Purchasing Company, a cor· poration organized under the laws of the state of Monta.na, and F. Augustus Heinze and Arthur P. Heinze, from mining or extracting any ores within the limits of that portion of the Pennsylvania lode claim lot No. 172, situated in Silver Bow county, in the state of Mon· tana, deslJribed in the decree. 1.'he appellee is also a corporation or· ganized' onder the laws of Montana.' It is the owner of the Pennsyl· vania lode Claim, and was the c(}mplainant in the court below. The jurisdictiGn of the circuit court is invoked upon the ground that the dispute is one arising under the laws of the United States. The aIle· gations of the complaint upon which 'this jurisdiction is claimed are as follows: .
"That as· plaintlff!s Informed and belleves, and theretore alleges, the said defendants claimed the right to enter upon the premises of this complainant, to wit, that portion ot the Pennsylvlu;lialode claim above described, by reason of the fact that-certain veins owned or claimed by the defendants, orln their possessioJi!, have theIr tops or apexes within, the ground owned or claimed as, a pOltion pt the Rarus lode·'clfiim, a portion of the Jotlllstown lode claim, or a portion 'ot the Little Ida lode claim; and defendants assert 'the right to follow'such veins op their dowJlward ·the same sofardljpart fronf a perpendlCula,r as to depart.,. frOpl .. tll,le g.r.o.und,, .owned or cl.aimed.. b.y t Qe..def.. .. . . , and enter the ptemlseji owned. and *lin¢ll· by this Wit, tha.t
. ,. ·U
";:,1.<" ;;" . .1
. . portion otthe: Pimnsylvania lode claim hereinbefore described. But complainant denies and disputes the fact that the said veins upon which the said defendants.have mined within the lines of the Pennsylvania lode claim are such veins as can be followed on their dip beyond the lines of the defendants' possessions, and. "Into the ground or premises of this plaintiff, but alleges the facts to be that the said veins are broken and Intersected by faults in such a manner that the same cannot be. traced or followed from the ground of the defendants Into the said Pennsylvania lode claim, and that, therefore, the said ·defendants have no right to enter upon the gronnd of this plaintiff. to wit, the said Pennsylvania lode claim, for the purpose of extracting ores therefrom, by reason of their ownership of the apexes of any veins within their ground. And this complainant further shows unto the court that the veins upon which the defendants have been extracting ores within the premises of this complainant do not, In their course or strike, depart from the end lines of the defendants' claims or possessions, but that the same depart from the side lines of such claims In such a manner as to prohibit the said defendants from following the same beyond the side lines of their own possessions or claims into plaintiff's portion of said Pennsylvania lode claim. That there are several veins which the defendants claim the right to follow on their dips beyond the side lines, and Into the ground of this complainant, the said Pennsylvania lode claim, but that neither of the said veins, in their courses or strikes, depart from the end lines of the said claims or possessions of the defendants, but complainant alleges that the ground claimed by the defendants was not so located or situated as to have any end lines whatever, as provided by the statutes of the United States in such cases, and that In consequence of such failure upon the part of the locator or locators of the ground or claims owned or claimed by the defendants to mark the same with end lines parallel, or to locate the same along the defendants' veins, but on the contrary having located the same across the said veins, the said defendants have no extralateral rights In or to any of the vllins in their said· ground, and are not entitled to follow the same Into or upon the ground of this plaintiff, the said portion of the Pennsylvania lode claim. Thai,in consequence of the facts hereInbefore alleged l this complainant allegesap.d asserts that there are questions involving the construction of the statutes of the United States relative to the rights of the said defendants to follow their veins into the of. this complainant, the said portion of the Pennsylvilllia lode claim, and that such questions are necessary to be determined In this .action,as between this complainant and the said defendants, In determining the right of this plaintiff to recover In the said action."
Whether the appellante retained thl;!irrigbt to the vein or lode in controversy after it entered the ground of the appelleeis clearly a question of fact, to be determined by the strike or course of the vein. If the vein passed through the side lines. of the Rarus or Johnstown lode claims, and into the ground of the appellee, on its course or strike, then the side lines of these claims, with reElpect to this particular vein, became end lines extending down vertically ; and the rein, in its course under appellants' surfac,e location, became the property of the latter. King v. Mining 00., 152 U.S. 222, 14 Sup. 01. 510; Last Ohance Min. 00. v. Tyler Min. 00., 157 U. S. 683, 15 Sup. 01. 733. But if, on the other hand, the vein passed through these side lines on its downward course or dip, the appellee had the rigl1t to follow the vein, although it so far departed from a perpendicular in its course downward as to extend outside the vertical side lines of appellants' surface location, and enter th.!lt of the appellee. Rev. St. § 2322. The law upon this ,\lubject has been clearly established by tbe cases cited, and such a controversy no longer presents a federal question. Kansas v. Bradley, 26 Fed. 290; Fost. Fed. Prac. p. 35. At tbe oral argument, and 'in .the briefs that have been filed,.a federal question has been suggested as arising out of the dispute as to the rights of the parties under tbe
FITCHBURG R. CO. V. l'ICHOI..B.
Rarus and Johnstown patents; but, as this controversy does not appear in the complaint, it cannot be considered. The jurisdiction of the circuit court of the United States is limited, in the sense that it has no other jurisdiction than that conferred by the constitution and laws of the United States. The presumption is that a case is without its jurisdiction, unless the contrary affirmativelv appears; and it is not sufficient that jurisdiction may be inferred argumentatively from averments in the pleadings, but the averments should be positive. Hanford v. Davies, 163 U. S. 273, 279, 16 Sup. Ct. 1051. In Metcalf v. Watertown, 128 U. S. 586, 9 Sup. Ct. 173, Mr. Justice Harlan, speaking for the court, said:
"Where the original jurisdiction ot a circuit court ot the United States is invoked upon the soie ground that the determination of the suit depends upon some question of a federal nature, it must appear at the outset, from the declaration or bill of the party suing, that the suit is of that character; in other words, it must appear, in that class of cases, that the suit was one of which the circuit court, at the time Its jUrisdiction is Invoked, could properly take cognizance. If it does not so appear, then the court, upon demurrer or motion, or upon its own inspection of the pleadings, must dismiss the suit, just as it would remand to the state court a suit which the record, at the time of removal, failed to show was within the jurisdiction of the circuit court. It cannot retain it in order to see whether the defendant may not raise some question of a federal nature, upon which the right of recovery will finally depend; and, if so retained, the want of jurisdiction at the commencement of the suit Is not cured by an answer or plea which may suggest a question of that kind."
See, also, Mining Co. v. Turck, 150 U. S. 138, 14 Sup. Ct. 35; Hanford v. Davies, supra. The decree, granting a temporary injunction, will therefore be reversed. It will be for the court below to determine whether the complaint can be so amended as to present a cause within its jurisdiction. ROSS, Circuit Judge (concurring). To bring this suit within the jurisdiction of the court below, it was essential for the bill to show by clear and unambiguous allegations that the suit involves a controversy that can only be determined by reference to the federal statute, and its proper application to the facts of the case. The averments of the bill do not meet this requirement, and therefore I concur in the judgment of reversal.
FITCHBURG R. CO. v. NICHOLS. (Circuit Court of Appeals, First Circuit. No. 228.
.JTTRISDHJTION OF FEDERAL COURTS-DIVERSE CITIZENSHIP- DEFECTIVE ALLEGATION-CORRECTION ON ApPEAL.
January 20, 1898.)
A defective allegation of citizenship may be corrected on appeal, so as to sustain the jurisdiction, by the consent of both parties. In the absence 01 such consent the jUdgment must be reversed, but the verdict need not be set aside, as the court below may allow. an amendment In accordance with the facts, giving the adverse party an opportunity to meet the issue raised " if he be so advised.
In Error to the Circuit Court of the United :O;tates for the District of Massachusetts.