FEDEitA.L REPo-alrER, ';01.41/
;Boone'-Did your 'honor take notie'e: lof the fact that there' Was a license: that the Walratp Com pany haq a lipense to ulle the prior p,ate,nt? Oourt-I do not' thiHkr Walrath irifringedwliile'he had that license. It is only what he has done since the expiration of that license. Mr. Boonr--What he has done since then the material with water it!' all open kettle aJidgenerating'steamfu way? ' ,PheCOurt......yes. ,.; , , Mr. Wheaton-Is it intended to limit the decree to the use of the open vessel?"', ' , The P-ourt-Noj either open or 'Mr. Boone-In the first patent issued to Judson alid Rice they praeticedit, and they never used it in a1\y other way exc:ept in an open 'kettle. untU'Mr.Walrath patented it and hsedfhisprocess of generating steam , .. do not limit their elaim to an open kettle. They in the kettle and boii it the steam in the slime 'vessel. . That is ·.. I do not suppose it matters .' whether the kettle was open dr' closed. : " . jfr; W7ieiztlln--In the Walrath 'Odse'the bomplaint does not charge an infringement before thebriilgitlg ofthe 1 stiit. . I suppose an' injunction . . ' '.'. .. ",,'follows in that? 2'hehurt-Then there'fij'ho anything but an injunction. asked accounting. '. ' , 'rAe eourt';"';"There is no occliSibn' fora:Ii &QCounting in the ' Walrath aw if· the complaint in case had only threatebedto!usetbe process. ,e', .. we ask(ot Is an injullctlOll--that is'sufficient. 2'he &ourt-Vel'Y .. . '. . 'Mr. Wbeaton-I have ·'contracts· on hand alid I askthlWthe injunction be suspended 30 >, M,., BOdnr--\V e have no objection. " T1uJ(J(Juft:";"Very likely:y6uwill be able to' arrange it among yourselveswhett .find. out whtit your<rights That is the main 'propoaition'-to' , 1 I · ,.
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II
(DIstrict OoW'e, }y.·D. PennwZ11an1,a. ,April 1, 1890.)
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L
had long been: 'In the exclusiveoccupallcy of a certahl ,portlOD .of th& " Ill,lblic wl1arl, of, 4.l1egheny c:ity, paying a still'!lated sum for ." and he kept fastened to shore two fioats on WhlCh he carrled on the buslDess of II t, "Ntail vender of coal, 'havingtbere(>n an otllce'aitdsooles, and one of the floats hav,ing to shore, 'wagons Were driven. His practice Wa& ,to, buy oor"g.oes' of cOal, and have .theloadedbarges brought'to the fioats an.d there kept until . he had retailed the ',Held,tha'tl'the'citY'dld not owe to him the high measur& of care due from aWharfillger to to a publio wbarf for safa mooring', and using the same 'bl the ordinary way.' , .
i " .' Libelant
011
doiL:-YARU.
v. I. , SAME-MQORIXG
CITY OF ALLEGUENY. __NOTICE. . .' ..
887
The 9.ity granted a right ,of way along its public wha.rt to a railroad company, .whiehjln the exercise of tlulprivilege, cut away several conveniehtto him, anq tl:Je city did not replace them, nor provide substit,u'tes. 'There'i"emaineli, hOwever,a check-post and ring-bolt which libelant used, and he did' ,not complain of the removal of the posts, nor give notice to the city to replacethllm, and did nothing himself to add to his .appliances for tying. This'state of thingllllOntiJiuing for several months, the libelant's floats and cargoes of coal in boats'werellwept away by a flood in the river, the cheek.post and ringbolt standing ftrm).and the break being in the fastenings. -HeZl:Z, that city was not liable for the nbelant's loss., '
In Admiralty. L. CJ. Bo/rwn, for libelant. ;
EfJphenBfJ:JiM, for respondent.
AClIE$ON, J. The libelant sues the (lity of Allegheny,thePlioprietor ·of. a public, .wharf on the bank .of the Allegheny Ii ver, damafloat and injury ,to another, and also, falthe 10l;lS 'ofoort4l.in CQal contained in flat-boats; which . sweptaw.ay, :fNm, stlid whllrf ,on 4th 'day of February" 1883, by an ice flood.' 1.'he,libel chargei', .(loss was J opcasiolle!,l, ,by the failurEl' of tbe. city to perform the it owed tp in,thllUhe city to .provide: and maintain sufficient other ·f(i)r ,the secure mooring ,Qf said boats; and thespecifie .c()mplaint thl'lJ::ein is that thE) city, ,by an ,ordinance,g1'anted, to tlle:Pittsbur§h,J&Westem &ib:ctadQorp,papy the right fol' its ,railroad over an<talong the.. mitte"d the !0i)mpany, iJ:)' constt'UQting its railroad,etp., cto cutdown or neceSSary .for fastening,and BEla/.n'jug bQats and mooring at said wh",rf, "and and neglected to replaee,thesame., or tofurnish sllbstitutes for the requested and uotifiedb-ythe libelant and otheta, so to The an,sweds tesponsive to libel, aud denies all the allegations upon which the libelant'E1right to recover depend.s. Tbe !materialfacts of the case as disclosed by tbeev;idence are these: The libelaut,had··been :the exclusive and cODstantoccupant of,tbat portion,Qfth6 rivet shQrewhere his fiats lay on February 4,1883, for a .period'Cif,lO, years prior to that date, and for the use he paid the city the aumof$l@. monthly. Testifying in. his own, behalf" tbEl.libelant says:' "[had'6 lease from Alleghelly city for this wharf." Al)d again he states: ,"I had sJease during aU that time. I occupied it by the year, , I paid the wharfage every month,-$15 per month." Therewss,it would seem, no writtell or Jormal lease, Qut, the libelant's long-continued oc·cupancy ha.qbeenofthe. /'lame distinct portion of the landing 'or,wharf, ;for his possession thereQ{Wf\s. both ,permanent He there carried on thl)rElta,H: QQalbusiness, and to that end, mlliJiltained ,at that. plaoo two floats.; floats had ·no rudders or c>f.locomotioniand. were intende4 . ;navigabut were kept faatlJuecl to the shore, On W,l\S !llgn : The largei' ooewas a ;and.!On It the liqe1ant. had an .office in which his books, were kept, ,. bllsi-