KNOX ROCK-BI.ASTING CO. V. RAIRDON STONE CO.
state or the citizens thereof and foreign states, citizens or subjects." The plaintiff in error must find in this provi&ion .his right to proceed in a federal court, and if the Atlantic & Pacific Railroad, Company is not a citizen of a state, or a citizen or subject of a foreign state, the controversy is not among those of which jurisdiction is conferred upon the United States courts by the constitution. It follows that the circuit court erroneously entertained jurisdiction of the cause. For want of jurisdiction the judgment of dismissal is affirmed.
KNOX ROCK-BLASTING CO. v. RAIRDON STONE CO. (Circuit Court, S. D. Ohio, W. D. June 21, 1898.) 1.
EQUITY PLEADING-FoRM OF PLEA.
A plea should state some single objection to the plaintiff's case which would be a complete defense either to the whole bill or to some distinct part of it.
SAME-PLEA IN PATENT SUIT.
A plea to a bill in the usual form, charging infringement of a patent, Is bad where it alleges that during a certain period the patented device was experimented with by defendant by consent of complainant, and that with respect to other occasions It did not infringe. A plea to the bill is inappropriate to suits in eqUity for infringement of a patent unless in very special circumstances.
This was a suit in equity by the Knox Rock-Blasting Company against the Rairdon Stone Company for alleged infringement of a patent. The cause was heard on motion to strike from the files a plea to the bill. Wood & Boyd and Bakewell & Bakewell, for complainant. J. R. Ramsey, for defendant. SEVERENS, District Judge. The motion to strike the defendant's plea from the files must be sustained. To a bill in the usual form, charging infringement of a patent, the defendant pleads that during a certain period the patented device was experimented with 'by the defendant by consent of the complainant, and that with respect to other occasions it did not infringe. A plea should state some single objection to the plaintiff's case which would be a complete defense either to the whole bill or to some distinct part of it. This plea does neither, but consists of matter which would be a defense for some of the period covered by the allegations of the bill and answers for the rest of the period. It has bei!n several times decided that a defense by plea is inappropriate to this class of cases unless in very special ,circumstances, and I think the objections to it are re-enforced in this case by the general rule of equity pleading to which I have referred. Sharp v. Reissner, 9 Fed. 445; Hubbell v. De Land, 14 Fed. 471-474; Korn v. Wiebusch, 33 Fed. 50; Union Switch & Signal Co. v. Philadelphia & R. R. Co., 69 Fed. 833-835; Chishohn v,Johnson, 84 Fed. 384. Such cases as LeatherlJee v. Brown, 69l!'ed. 590, are distinguishable. There the whole matter at
defense' 'in 'the case consisted of 'A single point, and' the cases fall withi'tl'ithe exception' to the' general'rule above stated.'· The motion if:! susta!i:ned);; Uave is given t6 ans\ver within '20 dayS;'
SOUTHERN PA.C. it.CO.,v. GnOEOK et aI. (Circuit Court of Appeals, Ninth CIrcuit. 'May 2, 1898.) No. 398.
RAILROAD LAND GRANTS-WITHDRAWAL OF LANDS-PRE-EMPTION.
No can be made lands which have been withdrawn from settlement. and sale by the officers of the land department; and even If the orderot withcrrawal'ls subsequently canceled, and a patent then Issues, no title passes, for the acts of the settler were In violation of law, and void.
SA'ME-WITHDRAWAL By'OPERATI()N OF LAW.
The act of July 27, 1866, § 3, granting lands to aid In the construction of the Southern Pacific Railroad Company, of itself operated to withdraw from settlement the lands lying within the Indemnity as well as the grant limits, from the date of Jiling of the map of. the general route; and the secretary of.the Interior. had no power to affect t)le grantee's rights, or to authorize a pre-emption settlement <Ill the lands,by, subsequently cancelIng his OTder withdrawing the lands from settlement.
OF LAND GJl.A;NT.-POWER OF HEGHETARY OF INTERIOR.
Delay in constructing theJi'oad, beyond the time limited by law, gives the secretary of the Interior no authority to reopen the lands to settlement ,br canceling his order of wltbPrawal., A forfeiture of the railroad grant . can by congress alone. 4. 8AME-L-j\9,HE;S, OF GRANTEE. .' . . , Where the granting act of Itself' opl\rates to withdraw from settlement lands lying within the Indemnity limits as well as within the grant limits (as in the case oJ:, the grant .qf 1866 to the Southern Pacific Railroad ,Company), laches Is not imputable 'to the grantee, o.f delay in completing its road and making its indemnity selectiohs,ln a "contest with one who has attempted to make a pre-emption entry after the filing of the map of generill route.
tbe Circuit COQrt of the for the Southof " Ca.lifornia. . .. . . .r, William F. ,Herrin1 John Gl1r'ber,and William Singer, Jr., for appellaut. W. appellees; 'Befot'e,GILBERT and MORROW, Circuit Judges,: and HAWLEY, I!istrict: .
(;:}ILBERT,'Circuit JUdge. Th:e Southern Pa.dfic Company brought suit agl1inst the appellees to obtain a decree that the h61dIll trust a patent which .Otto Gr.oeck received from the· United 'Stafes to a certain tract of land, which it 'is contended was land granted: bytheUllited StateS to the railroad company by the act of date JUly' 27, 1866. Section 18 of said act authbrized the appellant to construct the railroad which now extends from San Francisco, by way of Mojave, to the Needles on the Colorado river. Section 3 provided as follows: .