URION EDGlll-S)j,'TTER 00. t. KEITH.
715
But, independently of this consideration, we doubt, very much whether the Uuited States can acquire title by adverse possession against the right of a private citizen. The theory that an open and uninterrupted possession of land by a party, not being the real owner, may ripen into title, is founded upon the supposed acquiescence of the owner in the claim of the occupant by his not entering upon the property, or taking legal proceedings to recover its possession. Statutes of limitation do not run against the United States except when expressly provided by congress, and no action will lie against them by a private citizen except by their consent. Legal proceedings to enforce the claim of a citizen to lands in possession of the United States could not,. therefore, be taken, and no statutes can run against one to whom the courts are closed for the maintenance of his claim. Nor could the citizen assert his claim to such lands by entering upon them. There can be no private entry upon land for the assertion of one's rights, where the law does not allow an action against the occupant for the possession. In the present case the United States are not sued. They cannot be sued. The defendant is not sued in his official character, but as an individual. He is alleged to be in possession. He admits that he is, and justifies that possession by alleging that he is an officer of the United States, and acting under their authority. He can only make good this defense by showing that the United States were lawfully auof the land, and such authority thorized to put him in they only possessed if they held the title, or had the assent of the owner, neither of which is shown in the present case. We do not give any weight to the fact that in 1853, by order of the president of the United States, Mare island was reserved, with all its alleged appendages of tule or marsh lands ordinarily reputed to belong to such island; for, if such reservation was intended to include all the swamp and overflowed lands in controversy, it was to that extent inoperative,-the title, as we have already seen, having passed to the state by the act of September 28, 1850. It follows from what we have said that findings must be had upon all the issues in favor of the plaintiffs, and judgment entered thereon in their favor for the, possession of the premises in controversy.
UNION EDGE-SETTER
Co. v.
KEITH. l
(Circuit Court. D. Massachusetts. August 19, 1886.) PATENTS FOR INVENTIONfl-CONSTRUCTION. OF CLAIMS.
The first claim of the Charles H. Helms patent, No. 173,284, of February 8, 1876, for improvements in sole-edge burnishing-machines, viz., "in combma·
J
Edited by Charles C. Linthicum, Esq., of tb,e Chicago bar.
716
FEDERAL REPORTER.
tiOD with the burnishing tool, and the rest for the face of the sole, the finger rest, D, substantially as described, " construed. and held, that the words "the rest for the face of the sole" refer to the flange or guard which projects from the tool, and not to the upper surface of the finger rest below the tool.
In Equity. E. Maynadier, for complainant. T. W. Porter, for defendant. COLT, J. This bill in equity for injunction and account is brought on the Charles H. Helms patent, No. 173,284, dated February 8, 1876, for improvements in sole-edge burnishing-machines. The mao chine is a simple one, consisting of a finger rest and a reciprocating burnishing tool, which has a lip or guard projecting from its rear edge. The workman holds the shoe in his hands, and presses the edge up against the tool, which reciprocates with great rapidity. The finger rest enables the workman to hold the shoe when burnish· ing around the toe. Whether the finger rest has another functionthat is, whether, by the terms of the patent, the sale was intended to be pressed against its upper surface-is the important question in this case. If the plaintiff's construction of the patent can be maintained, I am satisfied it is entitled to a decree, because infringement by defendant's machine is apparent, and because the combination covered by the first claim, when so construed, is new, useful, and not found in prior machines. This seems so clear that I deem the further discussion of the question of allticipat;on or infringement unnecessary. On the other hand, if the defendant's construction of the patent be correct, it is manifest that the charge of infringement cannot be maintained, because defendant's machine lacks one of the material elements of the combination embraced in the first claim of the patent which is alone in controversy in this case. Under these circumstances, it becomes necessary to examine with care the speci. fication and drawings of the patent, to ascertain, if possible, the true construction of the first claim. The controversy between the parties is this: Does the expression "the rest for the face of the sole," which is made an element of the first claim, refer to the lower flange or guard which projects from the bed of the tool, or does it refer to the «pper surface of the finger rest below the tool? The specification says: "My i'nachine is extremely simple, and consists of a head or standard carrying a tool-holder holding a tool for setting or burnishing the edges of the sales of boots and shoes, and a finger rest to aid the workman in holding the edge up to the tool, and the face of the sale against the rest, which is just !Jelow the burnishing part of the tool. The drawings represent the !Jest part of my machine; A being the head, B the tool-holder, C the tool, and D the finger rest. ... ... II< The operation is as follows: ... ... ... The workman pttsses [pressesl the edge up against the tool, and the face of the sole against the surface which prujects below the tool, and gradually moves the shoe so as to bring all parts of the edge to its action, steadying the shoe by the aiu of the finger rest, D, especially w1J.en burnishing the corners of the toes. · · ·
UNION
V.,KEITH.
"The combinatilm of the finger rest, D, with the burnishing tool, and the rest for the face of the sole, is the main feature of my invention. All the other points of novelty in my machine also relate to new combinations of old elemeQts. What I claim as my invention is, (1) in combination with the burnishing tool and the rest for the face of the sole, the finger rest, D, substantially as described."
It will be observed that the specification first describes "the rest for the face of the sole" as "the rest which is just below the burnishing part of the tool," and, again, as "the surface which projects below the tool." The first expression seems quite clearly to refer to the flange or guard which projects from the tool, and against which the 801e rests. The second expression is ambiguous, and might well refer to the upper surface of the finger rest. When, however, we read the language of the patent in connection with the drawings, the meaning becomes plain. The drawings, I think, fairly show that the sole could not rest on the finger rest in the operation of burnishing. This seems to conclude .the question. Again, it will be observed that the burnishing tool is throughout coupled with the rest for the face of the sole. The language is : "The combination of the finger rest, D, with the burnishing tool and the rest for the face of the sole, is the main feature of my invention." "In combination with 'the tool and rest for the face of the sole, the finger rest, D, SUbstantially as described."
Much weight is given by the defendant to the proceedings in connection with Helms' application for a patent as bearing upon the cor" rectness of the construction that Helms referred to the finger rest as the rest for the face of the sole. In his original specification he said: "The finger rest, D, is the main feature of my invention; all the other points of novelty in my machine relating to new combinations of old elements. What I claim as my invention is-First, in a burnishing-machine. the finger rest, D, constructed and operating substantially as described."
The examiner holding that this claim was anticipated by the man patent of March 11, 1873, which shows sfinger rest, thereupon the first claim was amended so as to read as follows: "First, in <lombination with the burnishing tool and rest for the face of the sole, the finger-rest, D, substantially as described." The examiner replied under date of January 11, 1876, as follows: "Attention is called to the fact that the finger rest in the above-cited case' is stated to be the main feature of the alleged invention. A rest for the sarne purpose is shown in 'fayman's patent, and the other elempnts claimed in combination have been shown by the reference's to be old separately; and if the finger rest performs any new function, in this instance, in combination with the tool and holder here used, it should be clearly stated. It is not understood what is meant by the words in the first claim now presented, viz.,' the rest for the face of the sole.' Additional amendment is therefore necessarv · before the case can be further considered."
In reply to this, the specification was amended in the following particulars, and the patent granted:
118
JrEDERAL REPORTER.
U(l) By inserting Immediately after the woms·to aid the workman in holding the edge up to the tool,' the words' and the face of the sale against the rest. whIch is just below the burnishing part of the tool.' "(2) immediately after the words' the workman presses the edge up against the tool,' the words' and the face of the sale against the surface which projects below the tool.' "(3) By erasing the paragraph immediately before the words' What I claim as my invention is,' and substituting therefor the following: 'The cOInbination of the finger rest, D, with the burnishing tool and the rest for the face of the sale, is the main feature of my invention. All the other points of novelty in my machine also relate to new combinations of old elements. '"
Undoubtedly, Helms at first considered the finger rest as the main feature of his invention until he was referred to the 'rayman patent. He then adds a new element to the first claim, which is "the rest for the face of the sole." 'l'he examiner then calls his attention to the fact that he has made the finger rest the main feature of his invention, and, further, that, if the finger rest performs any new function in combination with the tool and holder, it should be clearly stated, and that it is not. understood what is meant by "the rest for the face of the sale." Helms replies by making the whole combination of the first claim, including the rest for the face of the sole, the main feature of hisiuvention, and by explaining what he meant by the words "rest for the face of the sole," which he had just incorporated into the first claim by amendment, but had not referred to in his specificatjon. He nowhere states that this refers to a new function of the finger rest, nor does he claim any new function for the finger rest. . At the argument I was by no means free from doubt as to the meaning of the patent. The position taken by the defendant at that time struck me with much force, but upon careful consideration of the specification in connection with the drawings I am satisfied that the defendant's view cannot be maintained. Undoubtedly, upon the evidence, Helms started with the idea of making the upper surface of the finger rest a rest for the face of the 801e. The plaintiff contends that this feature was abandoned some months before the patent was granted. In view of the drawings and specification the plaintiff's evidence on this point must be believed. Whether or not the sale edge of a shoe can be burnished with the sole resting against the face of the finger rest, and were in fact so burnished in the first machines made by Helms, becomes immaterial in view of the fact that the court has found that in the machine as patented the sole does not rest against the finger rest in the operation of burnishing. I am aware that the defendant Beeks to prove that the sole rests against the finger rest in the Helms machine as organized in the patent; but, in my opinion, neither the drawings nor the evidence 8uppod his theory .. Decree for complainant.
ABBIE O. STUBBS.
718
THE
ABBIE
C.
STUBBS. 1
(Diatriot Oourt, D. Massachusetts. July 9, 1886.) SHIPS A!lTD SHIPPING-LIABILITY OF VESSEL OWNERS-LIMITATIONS IMl'OSEDREv. ST. §4283-GENERAL AVERAGE-SALVAGE-FREIGHT AND WAGES SUBSEQUENT TO COLLISION. ,
Vessel owners. entitled to the protection of the act limiting the liability of vessel owners, (Rev. St. § 4283,) should. in causes of collision, on petition, be credited with the eX'l'lenses of salvage, and with the vessel's proportion of the general average charges, accruing subsequent to the collision, but not to any apportionment of freight or wages for a like period. "Freight then 'pending" means earned at the end of the voyage.
In Admiralty. Petition by the owners of a vessel condemned and sold for the payment of damages, in lit cause of collision, for leave to avail themselves of the benefits of the act limiting the liability of vessel owners, (Rev. St. § 4283,) and praying that freight earned, wages due, salvage, and general average, subsequent to the collision, be deducted from the proceeds. R. Stone, for, the Perkiomen. W. W. Dodge, for the Abbie C. Stubbs. NELSON, J. On the former hearing of this case both these vessels were pronounced at fault for a collision between them on the night of July 15, 1885, off Monomoybeach, in the Perkiomen was sunk, and the Abbie C. Stubbs was so severely injured that she ,was run ashore on Monomoy beach, to keep her from sinking. The Perkiomen earned no freight, and has since been blown up by the government as an obstruction to navigation. The Abbie C. Stubbs was got off the beach, after throwing overboard a part of' her cargo, and was towed to New Bedford, her port of destination, where she delivered what was left of her cargo, and earned freight amounting to $258.55. She was arrested in this suit, and has been sold by the marshal, producing $7,760.53 net. Her owners claim the ;benefit of the act limiting the liability of ship-owners for loss by collision. There beingno pretense that the collision occurred with their privity or knowledge, the court has no power to deoree for a greater amount than her value after the oollision, and "her freight then pending. " Rev. St. § 4283. But as one-half of the loss by the destruction of the Perkiomen, after deduoting one-half of the damage to the 'Abbie C. Stubbs, exceeds $50,000, the deoree must neoessarily exh'a'ustthe whole fund in the registry of the conrt, unless oertain' deductioris asked for by the owners are a l l o w e d . ' " They ask, first, to have the freight apportioned, and to' beheldte:' 'sponsible only for so much as accrued up to the time It ",,;r 1 i'
J t.d
J;
,I
Reported by Theodore M. Ettillg, Esq., ofthe Philadelllhia bar.
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