Page images
PDF
EPUB

praisers to the court. Such a course would have presented a much more serious allegation of error than we find in the objection as made.

tiffs in error were as follow: "The commis | sioners shall estimate each parcel of land at its market value, and are instructed that the market value of the land includes its value for any use to which it may be put, and all *The rule on this subject is so well [306 the uses to which it is adapted, and not settled that we shall content ourselves with merely the condition in which it is at the repeating an apt quotation from Mills on Empresent time, and the use to which it is now inent Domain, 246, made in the opinion of the applied by the owner; that if, by court below: "An appellate court will not reason of its location, its surroundings, its interfere with the report of commissioners to natural advantages, its artificial improve- correct the amount of damages except in ment, or its intrinsic character, it is pecul-cases of gross error, showing prejudice or iarly adapted to some particular use-e. g., corruption. The commissioners hear the evito the use of a public park-all the circum-dence and frequently make their principal stances which make up this adaptability evidence out of a view of the premises, and may be shown, and the fact of such adapta- this evidence cannot be carried up so as to tion may be taken into consideration in es- correct the report as being against the weight timating the compensation." of evidence. Hence, for an error in the judg The theory of appraisement asked for by ment of commissioners in arriving at the the plaintiffs in error differed from the one amount of damages there can be no correction, adopted by the court chiefly in two partic- especially where the evidence is conflicting. ulars-first, it treats the case as if it were Commissioners are not bound by the opinions one before an ordinary jury, whose action is of experts or by the apparent weight of evi determined by the evidence adduced; and, dence, but may give their own conclusions." 305] second, that the evidence might *have A number of exceptions were filed to the reference to and include any supposed or spec-action and conduct of the commissioners, ulative value given to the property taken but we think that they raised questions covby reason of the Act of Congress creating the ered by the observations already made, and park project. Whereas the court regarded were properly disposed of by the court below. the functions of the appraisers as including their own judgment and inspection of the land taken as well as a consideration of the evidence adduced by the parties.

We approve of the instructions given by the court in both of these particulars.

The scope of action of the board of commissioners was plainly, by the terms of the Act and the nature of the inquiry, not restricted to a mere consideration of the evidence and allegations of the parties, but included the exercise of those powers of judgment and observation which led to their selection as fit persons for such a position.

Whether the plaintiffs in error were entitled to be allowed, in the assessment of damages, for the value of prospective gold mines in tract 39 designated on the map of the park, was a question mooted at the trial, and the action of the court, in striking out the testimony offered to show such value, and in holding that, if there are any deposits of gold in this ground, they are the property of the United States, is complained of in the 7th, 8th, and 9th assignments of errors. The history of the tract in question was gone into at great length, and various patents of the province and state of Maryland were put in While the board should be allowed a wide evidence. The court below held that, as by field in which to extend their investigation, the grant of Charles I. to Lord Baltimore, "all yet it has never been held that they can go veins, mines, and quarries, as well opened outside of the immediate duty before them, as hidden, already found, or that shall be viz: to appraise the tract of land proposed found within the regions, islands, or limits to be taken, by receiving evidence of conjec-aforesaid, of gold, silver, gems, and precious tural or speculative values, based upon the anticipated effect of the proceedings under which the condemnation is had. Kerr v. South Park Comrs. 117 U. S. 380 [29: 925].

In connection with this part of the subject, we may appropriately consider the objection made to the action of the court below in declining to review and pass upon the evidence that had been produced before the commissioners.

stones," passed to the grantee, he yielding unto the king, his heirs and successors, "the one fifth part of all gold and silver ore which shall happen from time to time to be found;" and as the confiscation of the proprietary's title in 1780 vested the same in the state of *Maryland, and as also the royalty of [307 one fifth part of the gold and silver reserved to the king had also become, by the Revolution, vested in the state, consequently the United States succeeded to the state's title by the

The discussion by the court below was so elaborate and careful that no useful purpose would be served by entering minutely into the subject in this opinion. It is sufficient to say that our examination of the evidence contained in the record fails to disclose any error in the ruling of the court below, respecting the ownership of a supposed gold mine in tract 39, and we adopt its opinion as presenting a full and satisfactory treatment of the question.

If, as we have said, the court below was right in refusing to restrict the commission-act of cession of 1791. ers to a mere consideration of the evidence adduced, then it would seem to follow that the court could not be legitimately asked, in the absence of any exceptions based upon charges of fraud, corruption, or plain mistake on the part of the appraisers, to go into a consideration of the evidence. The court cannot bring into review before it the various sources and grounds of judgment upon which the appraisers have proceeded. The attempt to do so would transfer the function of finding the values of the lands from the ap

*The twelfth and thirteenth assign. [308

ments allege error in the court's action in con- It is true that, by the institution of pro309]firming the report of the commissioners* ceedings to condemn, the possession and enof appraisement as to a portion of the land em-joyment by the owner are to some extent inbraced in the map of the proposed park, leav- terfered with. He can put no permanent 310] ing other portions of that land* unacted improvements on the land, nor sell it, except upon. We understand this objection to refer subject to the condemnation proceedings. to the course of the park commissioners in se- But the owner was in receipt of the rents, 311] curing the final actions *of the Presi- issues, and profits during the time occupied dent upon a portion only of the lands described in fixing the amount to which he was enin the map as originally filed; and the conten- titled, and the inconveniences to which he was 312] tion is that the map was a finality, so subjected by the delay are presumed to be that if it turned out that the sum prescribed by considered and allowed for in fixing the the Act of Congress would not suffice to pay amount of the compensation. Such is the rule 313] for all the tracts mentioned in the map, laid down in cases of the highest authority. or if, for any other reason, the commissioners Reid v. Hanover Branch R. Co., 105 Mass. 314] should exclude from their final *selec-303; Kidder v. Orford, 116 Mass. 165; Hamtion any tract originally included in the map, ersley v. New York, 56 N. Y. 533; Norris v. the whole proceeding would be vitiated, and Philadelphia, 70 Pa. 332; Chicago v. Palmer, 315] the purpose of the Act defeated. *We 93 Ill. 125; Phillips v. South Park Comrs. 119 are unable to see the force of this view. The Ill. 626. function of the map was not to finally com316] mit the commissioners to taking all the parts included in it, but was to facilitate their proceedings in dealing with the owners. 317] Congress could not have *meant that the validity of the whole scheme should depend upon the accuracy with which the com318] mission should define *in advance the several tracts with whose owners negotiations were to be had. It seems to us that it, was a 319] sufficient and *reasonable compliance Our conclusion is that we find, in the legis with the law if the map, as finally acted upon lation creating the park and in the proceedby the President showed the location, quanti-ings under it, no infringement of the con320] ty, and character of the parcels of land to be taken, with the names of their owners.

These various contentions and objections did not escape the attention of the court below, but were disposed of, as they arose in the proceedings, in opinions of great research and ability, which appear in the record. We have briefly reviewed them here, not to add [322 to what was so well expressed in those opinions, but to show that the questions so zealously and ably pressed upon us have not been disregarded.

stitutional or legal rights of the plaintiffs in error, and the judgment of the court below is accordingly affirmed.

The fifteenth and sixteenth assignments, which complain of the course of the court in adopting and acting upon the decision of the President of the United States, approving the appraised values of part only of the land GEORGE WEATHERHEAD ET AL., Appts., selected for the Rock Creek Park, present the same contention in another form, viz: that the court and commissioners were concluded by the enumeration of tracts contained in the map when first prepared, and call for no

further remarks.

The fourteenth assignment charges the court 321] with error in* refusing to allow interest on the amounts assessed as the values for lands selected for the Rock Creek Park. The argument shows that the interest claimed was for the time that elapsed between the initiation of the proceedings and the payment of themoney into court. The vice of this contention is in the assumption that the lands were actually condemned and withdrawn from the possession of their owners by the mere filing of the map. Interest accrues either by agreement of the debtor to allow it for the use of money. or, in the nature of damages, by reason of the failure of the debtor to pay the principal when due. Of course, neither ground for such a demand can be found in the present case. No agreement to pay the interest demanded is pointed to, and no failure to pay the amount assessed took place. That amount was not fixed and ascertained till the confirmation of the report. Then some of those entitled to the assessment accepted their money, the plaintiffs in error declined to accept, and the amounts assessed in their favor were paid into court, which must be deemed equivalent to payment.

v.

WILLIAM COUPE ET AL.

(See 8. C. Reporter's ed. 322-36.)

Patent to William Coupe for hide stretching
machine-infringement of same-first claim
not infringed-third claim not infringed.
NOTE. For what patents are granted; when de-
clared void, see note to Evans v. Eaton, 4: 433.
As to patentability of inventions, see notes to
Thompson v. Boisselier, 29: 76, and Corning v. Bur
den, 14: 683.

As to abandonment of invention, see note to Pen

nock v. Dialogue, 7: 327.

As to distinction between inventions of mechanism,

articles, or products and processes: when latter patented, see note to Corning v. Burden, 14: 683.

As to including process and product in same patent; separate patents therefor, see note to Evans v. Eaton, 4: 433.

As to what reissue may cover, see note to O'Reilly v. Morse, 14: 601.

As to assignment, before issuing and reissuing patent; recording; when assignment transfers extended terms, see note to Gayler v. Wilder, 13: 504.

As to when assignee may sue for infringement; when patentee must: when they must join, see note to Wilson v. Rousseau, 11 : 1141.

As to damages for infringement of patent; treble

damages, see note to Hogg v. Emerson, 13: 824.
fore maturity, see note to Mandeville v. Welch, 5: 87.

As to notes given for patent rights; purchaser be

As to when prior use or sale of invention renders patent void, see note to French v. Carter, 34: 664.

1. The first claim of the patent No. 213.323, grant- | v. Weatherhead, 16 Fed. Rep. 673) was delivered ed March 18, 1879, to William Coupe for an im- by Judge Lowell, sustaining the patent, and provement in bide-stretching machines, is for holding that the first and third claims of it had the combination of a friction table or beam over been infringed. which the hide is drawn, a stretcher, and a revolving roller, to which the hide is secured, and around which it is wound as it is drawn over the friction beam and stretcher; this is a claim for

mechanism.

2. The third claim of the patent to Coupe for an improvement in hide-stretching machines, is for the exclusive right of using the machine referred to in the first claim, and it cannot be infringed otherwise than by infringing the first

On the 1st of May, 1883, an interlocutory decree for an injunction and account was entered. The master filed his report on January 7, 1888, exceptions were filed to it by the defendants, and they made a motion to dismiss the bill. The master found that the amount of gains and profits to be accounted for by the defendants was $15,412.82. The court, held by Judge Colt, filed its opinion on the motion and the exceptions November 15, 1888. Coupe 8. The first claim of the patent to Coupe for an v. Weatherhead, 37 Fed. Rep. 16. It overruled improvement in hide-stretching machines is not the motion and the exceptions, and on May 6, infringed by the machine got up by Weather- 1889, entered a decree in favor of the plaintiffs head because the latter does not have the stretch- for $15,412.82, with interest from February 1, er-bar K, or any substitute for it, performing 1888, and the costs of the suit. The defendthe same operation nor stretch the hide longiants have appealed to this court. The only tudinally and transversely at the same time, but

claim.

only longitudinally in different successive direc

tious.

4. The third claim of the patent to Coupe for an

improvement in hide-stretching machines is not infringed by the machine got up by Weatherhead, because the described method of operation of the combination of the first claim of Coupe is not performed by Weatherhead's machine.

[No. 104.]

Argued Jan 4, 5, 1893. Decided Jan. 16, 1893.

APPEAL from a decree of the Circuit Court

of the United States for the District of Rhode Island, in favor of plaintiffs William Coupe et al., against George Weatherhead et al., defendants, for damages, or gains and profits, for the infringement of letters patent No. 213,323, granted March 18, 1879, to William Coupe for an improvement in hidestretching machines. Reversed with direction to dismiss the suit with costs.

See same case below, 16 Fed. Rep. 673; 37
Fed. Rep. 16.

The facts are stated in the opinion.
Messrs. Walter B. Vincent and Causten
Browne for appellants.

question contested here is that of infringement.

The specification of the patent is as follows: "The invention hereinafter described relates generally to an improved method of stretching and reducing to a uniform thickness the hides of animals previous to said hides being manufactured into dressed leather, or what is known as 'rawhide;' and it particularly relates to a combination of mechanism which, accompanied by certain band manipulation, will accomplish the desired result of stretching and

reducing the hides, as above mentioned

*As is well known, all hides vary [324 considerably in thickness at different points, and when taken from the liquor vats in which they have been immersed to remove the hair, etc., they are found to be soft, flabby, wrinkled, and fulled. Owing, therefore, to this condition of the hides, it is necessary, before they are dressed and finished for the market, that they be stretched throughout to remove the wrinkles and fullness, and also to reduce those parts which are thicker than other portions, so that, as far as possible, the hides shall be uniform in thickness.

[ocr errors]

'My invention consists in a combination of Mr. Wilmarth H. Thurston for appel- mechanical devices which are capable of prolees.

322] *Mr. Justice Blatchford delivered the opinion of the court:

This is a suit in equity, brought January 11, 1881, in the Circuit Court of the United States for the District of Rhode Island, by William 323] Coupe and Edwin A. Burgess *against George Weatherhead, John E. Thompson, and William G. Evans, copartners as Weatherhead, Thompson & Co., for the alleged infringement of letters patent of the United States No. 213,323, granted March 18, 1879, on an application filed January 24, 1879, to the said William Coupe, for an improvement in bidestretching machines. The bill of complaint alleges that the defendants, from July 17, 1879, have made, used, and sold hide-stretching machines containing the invention described in the patent. The answer sets up in defense want of novelty and non-infringement. A replication was filed, proofs were taken, and the case was brought to a hearing before the court, held by Judge Lowell, then circuit judge, and Judge Colt, then district judge; and on the 20th of April, 1883, the opinion of the court (Coupe

ducing, in connection with hand manipulation, the desirable results of thoroughly stretching the hides, and rendering them of even thickness in all parts, the said devices comprising, in the main, a friction table or beam, over which the hides are dragged, a stretcher bar of suitable form for stretching the hides transversely, and a slowly revolving roller, to which the edge of each hide is secured, and around which it is wound after being drawn over the table or beam and the stretcher bar.

Referring to the drawings, Figure 1 represents a front elevation of my improved machine. Fig. 2 shows the same in central vertical transverse section, and Fig. 3 represents the stretcher bar in perspective.

"As particularly shown in Fig. 1 of the drawing, my improved machine consists of the following devices: A pair of standards, as at A A', in which is mounted a shaft, as at B, to which power is applied. Upon one end of this shaft is a pinion, as at C, arranged to mesh with a gear, as at D, loosely mounted on one end of a roller, as at E. The inner side of this gear D is provided with a clutch face or pin, as at d, for engagement with a clutch, as at F,

splined [spliced?] to the roller E, and furnished | reduced, or whose wrinkled or fulled up porwith a shipping handle, as at G, so arranged tion is to be smoothed out, passes over the table as to be convenient of access to the operating attendant. The remaining parts of the machine consist of a narrow table or breast beam, as at H, which is mounted in mortises, as at a, in the standards A A', and a stretcher bar as, at K, likewse mounted in mortises, as at d, and 325] having its two working faces doubly in clined, as at k k', Fig. 3. Both the breast beam H and stretcher bar K are so arranged as to be easily inserted in their respective mortises, where they are confined in proper longitudinal position by the standard A' at one end, and a button, as at L, at the other end. The said beam and bar are capable also of lateral "In passing over the bar K the hide transmovement, to enable them to be moved back-versely stretched by the doubly inclined sides ward to give room for a larger hide being kk', from which it passes onward to the roller wound upon the rollers, and also to facilitate E, winding about the said roller uniformly

or beam H, the operator, who stands in front of said beam, applies pressure by hand to the proper portions, thereby increasing the friction between the under surface of the hide and the surface of the bar H, and causing the onward movement of such portions of the hide to be retarded. The portions thus pressed upon, therefore, are more severely stretched than other parts of the bide, and by proper manipulation by the attendant its thickness is rendered uniform, and it passes to the stretching bar K in a smooth condition, having been longitudinally stretched upon the beam H.

[ocr errors][merged small][ocr errors][ocr errors][merged small]

their entire removal from the machine after the hide has been stretched and is to be removed to give place for another.

and smoothly. The machine is now stopped, the bide removed, another secured to the roller E, and the operations above described are repeated.

"From the foregoing description my improved machine will be readily understood; and it will be seen that my improvement in the method of stretching hides results from the combination of the mechanical agencies mentioned, coupled with the manipulation of the hide as it passes over the friction table or beam, at which time it is smoothed from wrinkles and reduced to a uniform thickness."

"The methods of treating the hides and the operation of the mechanism above described are substantially as follows: A hide, as it comes from the vat, wrinkled and fulled, and with its various parts of unequal thickness, is placed over the table or breast beam H, and one of its ends carried under the stretcher bar K, and secured to the roller E by the clamp e, 326] *the other end hanging free in front of the machine, as shown in Fig. 2. The operator now connects the roller E to the continuously The patent has three claims, in these words: revolving gear D by means of the handle G and "1. The combination of a friction table or clutch F, and the roller E slowly revolves, beam, over which the hide is drawn, a stretchwinding the hide around its surface, and drawer, substantially as described, and a revolving ing the said hide over the friction table or beam H, and around the stretcher bar K. When any part of the hide whose thickness should be

roller, to which the hide is secured and around which it is wound as the hide is drawn over the friction beam and stretcher, substantially

as set forth. 2. The combination of a revolving | for belts well known to the patentee and to roller, to which the hide is secured and around some others in the trade, which was made by 327] *which it is wound, a laterally yielding modifying a splitting machine. Mr. Coupe stretcher and a laterally yielding friction table did not, in fact, make his improvement upon or beams substantially as described. 3. The this stretcher, but it is much more like his improvement in the method of stretching hides, machine than anything else which preceded it. which consists in dragging the hide over a "This old machine was used upon hard stretcher, and also over a friction table or beam, tanned leather to adapt it to be made into belts by means of a revolving roller, to which the for machinery, for which purpose it must be bide is secured, as described, whereby as the stretched with great power, eighteen or twenty hide is passed over the table or beam, the thousand pounds to the square inch, in order thicker portions of the hide are detained or to take out of it all possibility of further made to lag by pressure applied to such thicker stretching. This was done by passing the portions, to increase at such points the friction leather through a trough which was brought between the hide and the table, substantially up against the stretcher bar with the force we as specified." have mentioned. Since the plaintiffs' method and machine have become known, Mr. Davis, an accomplished worker in leather, has tried with some success an enlarged copy of the old belt leather stretcher, to do the work of the plaintiffs' machine. He is obliged to use a greater number of men or boys to tend the machine and prevent the pressure from ruining the hide, which, of itself, tends to prove that the machines are not alike; and we have no doubt that, if the plaintiffs' devices are considered an improvement upon this old machine, they embody a patentable improvement. They omit the means for producing the pressure, and and add a table not useful in the old machine, but which, in the new machine, ena- [329 bles the workmen to exert sufficient pressure.

The master states correctly, in his report, that Coupe, being engaged in the manufacture of rawhide leather, was experimenting on methods of stretching it, and finally perfected the method and invented the machine for which be obtained the patent; that the defendant Weatherhead, contemplating for the first time the manufacture of rawhide leather in the fall of 1879, desiring to have a stretching machine, and bearing that Coupe had invented one, and having seen Coupe's patent, applied to him, on January 5, 1880, for a license to use it or for the sale of one of the machines; that Weatherhead, not being able to effect that object, got up a machine of his own, which Coupe notified him was an infringement on the patent; and that, the defendants persisting in using their machine, notwithstanding such notice, the present suit was begun.

"The defendants at one time used a machine which closely resembles that of the plaintiffs. At present they have one which works with a trough and bar, like the old belt stretcher, with the addition of a table over which the leather passes, and which enables the workmen to spread out and manipulate the hide; upon the edge of this table is a piece of metal with grooves spreading outward, and these grooves have a tendency to stretch the hide

Judge Lowell, in his opinion, says that rawhide leather is a hide which has been stripped of its hair, and softened, and brought to a state in which it is very soft, flabby and much wrinkled, but has not been tanned. He then proceeds: "The specification describes a table or beam, over which the hide is to pass, and which is breast high, in order that the work-laterally, or at least to prevent it from wrinklmen may conveniently use it; then the hide passes over a bar or stretcher, which is somewhat arched or crowned, in order to stretch the hide transversely; it then goes to a roller, to which it is clamped and over which it is slowly wound.

"The workmen accelerates or retards the passage of the hide by lifting it up or pressing it down, and in this way the thicker parts secure a greater longitudinal pull from the roller than do the thinner parts, and the bar, by its 328] shape, tends to stretch the hide laterally as it passes from the table to the roller. The table and the bar have a lateral yield or adjustment to accommodate hides of different sizes.

[ocr errors]

ing; that is, to keep it to its lateral stretch, which seems to be much the same thing. The slot and bar are so placed in relation to each other that a hide is not squeezed between them, as in the old belt stretcher; but in the legitimate attempt to avoid infringement of the plaintiffs' invention, which the defendants intended to copy as far as they lawfully might, because they had failed to come to terms with the plaintiffs for a license, they now put into the trough a piece of board, supported at either end upon blocks, about one third the width of the trough. The operation of the machine as thus modified is known only to the defendants themselves, and Mr. Weatherhead testifies that "The first claim is for the combination of it exerts a pressure upon the hide, how great the table, the stretcher and the roller; the sec- in pounds we do not know. We understand ond for the lateral yield in the table and stretch-him to say that, by passing the hide through er; the third for the improvement in the method of stretching hides, which consists in dragging the hide over a stretcher, and also over a friction table or beam, by means of a revolving roller, to which the hide is secured, as described, whereby, as the hide is passed over the table or beam, the thicker portions of the hide are detained or made to lag by pressure applied to such thicker portions, to increase at such points the friction between the hide and the table, substantially as specified.'

“There was a machine for stretching leather

the machine several times, all parts come sooner or later under the board, and thus substantially all the stretching is done by its aid.

[ocr errors]

Infringement of the plaintiffs' first claim is not escaped by the use of this piece of board, for, although it causes the defendants' machine to approach more nearly the old belt stretcher, still the operation must remain to some extent at least like that of the patent. The manipulation with the table and grooves must enable the operator to use all the elements of the first claim upon two thirds of the

« PreviousContinue »