Vol. IV.] CITY OF CLEVELAND v. LENZE. [No. 2. or any addition to any building, more than ten feet high, within the city limits "bounded on the north by St. Clair Street, on the east by Ontario Street, on the south by Superior Street, and on the west by Water Street, unless the outer walls thereof be made of brick and mortar, or of iron, or of stone and mortar, with parting walls rising at least ten inches above the roof, and the roof or cornice thereof be made or covered with some fire-proof material.” To secure obedience to the requirements of the ordinance a severe pecuniary penalty was provided, to be collected by trial and conviction in the police court. This territory was known as the "fire limit," and the ordinance as the "fire ordinance." In another ordinance, it was provided "that no person shall place, or cause to be placed, occupy, or permit to be occupied, a building or structure of any kind, upon any public ground, street, lane, or alley, now or heretofore established and laid out." A person violating this provision was to be notified by the board of city improvements to remove the building or structure in a given time, to be named by the board. On failure to comply with the notice, the offending party could be brought before the police court, and, if found guilty on the trial, fined $20, and the building or structure ordered to be removed or torn down, at the discretion of the city marshal. This ordinance was known as the "street ordinance. Under this ordinance, Lenze was arrested, fined, and the officers of the city ordered to remove or tear down his building. The effect of this proceeding against him and his property will be considered hereafter. In 1867, and long prior thereto, Kasper Lenze was the owner of a wooden building, over ten feet in height, containing four store-rooms, valued at from $5,000 to $8,000, built in 1848, situate on the corner of Frankfort and Seneca streets, and within the "fire limits" in the city of Cleveland. His lease there having expired, he wanted to remove the building and place it on a lot at the corner of St. Clair and Seneca streets, a location also in the "fire limits." He applied to the city council for permission to move his building, and a permit was granted him May 21st. On the 23d of May, he leased the lot on the corner of St. Clair and Seneca streets of Judge Bolton, for a term of fifty years. On the 28th of May, the city council revoked the permit. At the time of the revocation, the city council was advised that Lenze had leased the lot on the corner of St. Clair and Seneca streets, on which he designed to place his building. The city could revoke the permit, but would be responsible for damages incurred, if any, by Lenze whilst it remained in force. In July, 1867, Lenze, by the agency of Ingham & Treat, building movers, without objection on the part of the city, and, Treat testifies, with the permission of the city council, moved the building into Seneca Street, to a point immediately in front of the lot on the corner of St. Clair and Seneca streets. There the city authorities interposed and forbid placing of the building on the lot. Lenze testifies:" Ingham & Treat moved it to the street up to this lot, and turned the wheels under the building to go on the lot, and the city stopped me; should have moved it on in five hours if the city had not stopped me." Treat testi VOL. IV.] CITY OF CLEVELAND v. Lenze. [No. 2. fies: "I could have moved the building on in four or five hours, if the city had not stopped me. . . We had to use part of St. Clair Street to move the building to St. Clair, so as to put it on this lot, and that is why St. Clair was put in the permit. . . . . I acted on this permit to move two buildings. The two buildings in the permit I understood to be this building of stores, and the block of five small houses on Frankfort Street." From this testimony it is clear that this building, at the time the city authorities forbid its being placed on the lot, was lawfully and by the consent of the city in the public street. Lenze had not violated the fire ordinance, because his building was as yet in the street, and he had not violated the street ordinance, because it was in the street by permission of the city, and the license (three days) had not expired. As soon as objection was made by the city to placing the building on the lot, Lenze offered, if permitted to place it on the lot, to make the building conform in all respects to the requirements of the fire ordinance, and to show his good faith in making such offer, tendered to the city council a bond, with security, in the sum of $3,000. His offer to make his building conform to the law and his bond were rejected by the city council. Heisly testifies : "At this time I was acting for Lenze as his counsel. I found the city would not let Lenze put the building on the land he leased of Bolton. The city would not let him do anything with it but tear it down." On cross-examination, said: "They would not let us take it down St. Clair Street. The city insisted that we should tear it down. Would not let us do anything else with it. Lenze offered the city a bond in the sum of $3,000 to make it comply in every respect to the fire ordinance, but the city would not allow him to do it. M. B. Clark said he had no confidence in him." In this matter the city was in fault, and acted oppressively. Lenze had violated no law, and it was not proper for the city to assume in advance that when his building was placed on the lot he would fail to make the building such an one as required by the fire ordinance. It should have been permitted him to do what we think he had the legal right to do, place his building upon the lot, and have reasonable time in which to make the building one that would not be obnoxious to the provisions of the fire ordinance. Failing to do this, he would have subjected himself to the penalties of the ordinance. This ordinance does not prohibit the removal of a building, lawfully in the "fire limits," from one lot to another within that territory. It would not be a violation of its letter or spirit to move the building upon an adjoining lot; and, if lawful to move it twenty feet, it would be lawful to move it two or three hundred feet - the distance this building was to be moved. The city might rightfully prescribe the manner and determine the restrictions under which the removal could be made short of prohibition. Ordinances, as statutes, should receive a reasonable construction, with a view to carry out their intention as shown by their words when clearly expressed, and not extended beyond what they mean, or be enlarged by construction. The ordinance prohibits the erection or placing a building within certain limits which does not answer the description prescribed in the ordinance, but does not prohibit the removal of any Vol. IV.] CITY OF CLEVELAND v. LENZE. [No. 2. building already within the fire limits from one part of it to another. This building was there at the time the ordinance was made, and it was no violation of the ordinance to change its location from one point to another within the "fire limits." As before stated, Lenze was arrested, tried, found guilty, fined, and his building ordered to be removed or torn down for violating the street ordinance. This order of the police court made against his building is set out in the answer as a bar to the action for damages. Can it have that effect? If plaintiff's claim for damages was confined alone to the taking down of the building, this order unreversed would present a serious obstacle in the way of his recovery. But Lenze's claim for damages has a broader foundation. As we have already determined, he was forcibly prohibited by the city from putting his building on his lot, and by so doing the city was placed in the wrong. The city could not lawfully require him to place his building elsewhere than on his own premises. Yet when the building was permitted to stand in the public street for more than three days, it became obnoxious to the provisions of the street ordinance and the statute concerning nuisances, and might be removed or torn down without subjecting the party doing so to damages as a trespasser. The city, however, having done a wrongful act in prohibiting him from placing his building on his own lot, forcibly deprived him of a right, cannot claim exemption from a liability to pay damages in abating a nuisance under color of law to the injury of one of her citizens. The nuisance here arose out of her own wrongful act in forcibly depriving Lenze of the use of his property, and she must under the law respond to the consequences of her acts done contrary to and aggressive upon the rights of the individual. The amount of damages is to be determined by the facts and circumstances that may surround the case upon the trial. The plaintiff in error, as a further defence, alleges that Kasper Lenze, at his request, had a conference with the city authorities, "and then and there agreed to and with the said board that the building then standing on and obstructing the public travel on Seneca Street, and which had been unlawfully standing on and obstructing the said street for a long space of time, should by him, this plaintiff, be taken down and removed, and not placed on the said lot, corner of Seneca and St. Clair streets; or that in case he, the said plaintiff, should not take down and remove the same, that then this defendant, its agents, or servants, should be fully authorized to tear down and remove the said building; and that he, the said plaintiff, would claim no damages from said defendant by reason thereof. That such agreement was made with the said Lenze at the said time, and agreed to by said Lenze, for and in consideration of this defendant granting him, said plaintiff, the permission to remove said building, instead of said defendant doing the same at plaintiff's cost." This can avail the city nothing. By a wrongful act the city created the necessity that resulted in the destruction of the building. It is a vain effort to contract the city out of her liability for damages. The alleged consideration for the agreement is the privilege granted Lenze to tear down his own house, or exempt the city from harm in doing so, ing he had lawful right to put upon his lot without the consent of the city authorities. This is no consideration, and the alleged agreement is to a build Vol. IV.] SMITH V. GOODYEAR DENTAL VULCANITE Co. [No. 2. tally wanting in mutuality. For the want of mutuality and a valid consideration to support it, the agreement is void. It follows from an application of these principles to the following instructions given, or refused to be given, that the court erred when it instructed the jury, over the objection of Lenze: "If the jury find that this paper, signed by Kasper Lenze, bearing date July 29, 1867, was not revoked before the building was taken down, then the city had a right to proceed and tear it down; and although the jury should find that this building was torn down under and by virtue of the order and judgment of the police court, still the city would be protected in the tearing down of this building, if this paper of July 29, 1867, had not been revoked." And also erred when it refused, on the request of Lenze, to instruct the jury: : "That the city of Cleveland was bound to give Kasper Lenze a reasonable time to make this building to comply with the fire ordinance of May 10, 1850, said right to be exercised by said Lenze in a careful and prudent And that if the building was standing on the territory lying between Superior, Ontario, Water, and St. Clair streets at the time the ordinance of May 10, 1854, was passed to prevent the erection of wooden buildings, &c., then it was no violation of that ordinance to move said building on said territory from one place on it to another place on it." Judgment of the district court, in reversing the common pleas court, affirmed. SCOTT, Chief Judge, DAY, WRIGHT, and JOHNSON, JJ., concurred. Mere change of material does not constitute invention. But where the result of the substitution of one material for another is a superior product, bilities and functions, one having new capa - the substitution amounts to invention. Hotchkiss v. Greenwood and analogous cases expounded. To show want of novelty in an invention the proofs must establish a prior use of that which is in substance the same as the thing patented. Mere amplification of an original specification will not invalidate a reissue. A delay of nine years in pressing an application held not to be abandonment. APPEAL from the circuit court of the United States for the District of Massachusetts. SMITH V. GOODYEAR DENTAL VULCANITE Co. Vol. IV.] [No. 2. His Mr. Justice STRONG delivered the opinion of the court. A brief review of the history and nature of the patent which the complainants allege has been infringed will aid materially in solving the questions presented by this appeal. On the 14th day of May, 1852, Dr. John A. Cummings, a dentist of Boston, filed in the patent office a caveat to protect an invention he claimed to have made, of certain new and useful improvements in the setting and plates of artificial sets of teeth. The description accompanying the caveat indicated with very considerable clearness what the alleged invention was, and the objects sought to be gained by it. The improvement was declared to "consist in forming the plate, and also the gums in which the teeth are inserted, of rubber or some other elastic substance, so compounded with sulphur, lead, and other similar substances as to form a hard gum, or whalebone gum, rigid enough for the purposes of mastication, and pliable enough to yield a little to the mouth." 66 By this improvement," the caveator said, "the teeth can be easily baked into the gums which form one piece with the plate." Subsequently, on the 12th of April, 1855, he applied for a patent, reciting in his application that he had previously entered a caveat. accompanying specification declared the invention to consist in " forming the plate and gums to which the teeth are attached, of rubber or some other elastic material, so indurated as to be rigid enough for the purpose of mastication, and pliable enough to yield a little to the motions of the mouth, and in one piece, the teeth being imbedded in the elastic material while the material is in a soft condition, and then baked with the gums. and plate, so that the teeth, gums, and plate will all be connected, forming, as it were, one piece." This application for a patent was rejected on the 19th of May next following, and the applicant was referred to two printed publications, one suggesting the use of gutta percha as a base for artificial sets of teeth, and the other suggesting pastes, analogous to porcelain paste, as well as gutta percha. Cummings then amended his specification by striking out all reference to gutta percha or other merely elastic material, disclaiming the use of gutta percha, and any material which is merely rendered plastic by heat and hardened by cooling, and he claimed the improvement in sets of mineral, or other artificial sets of teeth, which consists in combining the teeth with a rubber plate and gums, which, after the insertion of the teeth, are vulcanized by Goodyear's process, or any other process, forming thereby a cheap, durable, and elastic substitute for the gold plates theretofore used. This amendment, however, proved ineffectual. The application for a patent was again rejected, and a third rejection followed a reconsideration for which the applicant had asked. This third rejection was on the 3d day of February, 1856. From that time onward for several years, indeed until the patent was finally granted, the evidence very satisfactorily shows that Dr. Cummings was in a condition of extreme poverty, utterly unable to bear the necessary expenses of prosecuting his case further. But he did not withdraw his application. He did not ask for a return of part of the fee he had paid, nor by any act of his did he indicate acquiescence in the unfavorable action of the patent office. On the contrary, he continued to assert his expectation of ultimately obtaining a patent, formed plans for his own action after it should be obtained, and com |