269
employment for his teams when not otherwise .at wo:.:k. The present case is, therefore, quite different from Kimball's, as the .chief occupation of these bankrupts was in stock trading and slaughtering the cattle, and their farming was, in comparison, of but little moment. In Cote's Case, it is conceded by the court that a butcher ordiuarily would be deemed a tradesman within the bankmpt act; and as it is not claimed that these bankrupts kept any books of account other than small pocket diaries, which afforded no information as to their affairs, the court is, for this cause, compelled to deny them their discharge, without passing upon oth6r objections which are made by the opposing creditor.
ANDREWS
and others v.
CROSS.
(Oircuit Oourt, N. D. New York. June 1,1881.) 1. RE-lBsUE No.4,372-DRIVEN WELLS-VALIDITY. Re-isued letters patent No. 4,372, granted May 9,1871, to Nelson W. for improvement in process in constructing artesian wells, heli}" valid. 2. CLAD!: - CoNSTRUCTION- PROCESS·-NoVEL ELEMENT-NoN-FLoWING WELLNEW PRINCIPLE-FLoWING WELL.
The claim of the patent, to-wit, "the process of· constructing wells by driving or forcing aD instrument Into the ground until it is projected into the water, without removing the earth upwards, as it is in boring, substantially as herein described," held, to be a claim to a process. The novel element in the process consists in driving a tube tightly into the earth, without removing the earth upwards, to serve as a well-pit, and attaching thereto (in a non-flowing well) a pump, so that the process puts ,to practical use the new principle of forcing the water, in the water-bearing strata of the earth, from the earth into a well-pit, by the use of artificial power .applied to create a vacuum in the waterbearing strata ofthe earth, and, at the same time, in the well-pit. In a flowing well, to make the hole by displacement, and insert the tube and have the water flow, develops the process. 3. NON-FLOWING WELL-PROCESS-INFRINGEMENT.
In a non-flowing driven well, the use, to procure water, OJ a pump IS a of the process, and an infringement, although the person using the well and the pump and the process may not be the person who caused the rod to be driven, or the hole to be made, or the tube to be inserted, or the pump to be attached. 4. INVENTOR-SCIENTIFIC PRINCIPLE-OMISSION IN SPECIFICATION.
An inventor may be ignorant of the scientific or phyFical principle upon which his process acts, or may think he knows it and yet be uncertain, or he may be confident as to what it is and yet others may think differcntly, and h" may, through accident or design, omit to set it forth in the application: yet if he sets forth 'the process or mode of operation which ends in the result, and the means fol' working out the process and mode of operation, and if in such description the thing is so set forth that it can be reoroduced, such omission will not ":liate the patent.
FEDERAL REPORTER.
'Thomas'Rich(1r(J,son\ for plaintiffs.
No counsellor defendant.' J. This suit is brought on re·issued letters patent No. 4,872, granted to Nelson W. Green, one of the plaintiffs, May 9, 1871, for an "improvement in the methods of constructing artesian wells;" the original patent, No. 73,425, having been granted to said Green, as inventor, January 14, 1868, on an application filed March ,17, 1866. The specification of the re·issue says: BLATCHFORD, C. "My invention is particularly intended for the construction of artesian where no rock is tobe penetrated. The methods of constructwells ing wells previous to this invention were what have been known 'as ·sinking' and' boring,' in both of which the hole or opening constituting the well was produced by taking away a portion of the earth or rock through which it was made. This invention consists in producing the well by driving or forcing down an instrument- intO the' ground until it reaohes the water, the hole or opening being thus pya mere, displacement of the earth, which is packed around the instrument, and not removed upward from the hole, as it borfng. The to be employed in producing such a which, 'todistillguish it from 'stink' or 'bored wells,marbe termed a 'driven well,' mllY be any that is capable of sustaining the bl,ows or pressure necessary to drive itlnto the earth; but 1 pi-efer employ a pointed rod, Which, after having been driven or forped down until it reaches the water, I withdraw, and replace by a tube made air-tight, throughout its length, except at or near its lower end, where I make openings or perforations for the admission of water, and through ·andfrom which the water may be drawn by any wellknown or suitable form of pump. In certain soils, the use of a rod preparatory to the insertion of a tube is \mnecessary,asthe tube itself, through which the water is to be dra\vn, {nay be the instmment which produces the well by the act of driving it into the ground to the rllquisite depth. To enable others to make and use my invention, I will proceed to describe it with referen.ce to .thl) drawing, in which figure 1 represeilts a portion of the pointed rod above mentioned, and figure 2 a portion of the tube which forIPs ,the casing or lin, ing of the well. 'rhe driving rod, A, I of wo"d or iron or other metal, or of parts. of each, with a sharp point, b, of steel or otherwise, to penetrate the earth, and a slight s well, a, a short distance, above the point, to, make the i hole slightly larger than the general diameter' of the rOd. This rod I drivc,bya,falling weight or other power, into the earth, until its point passes suftlciently far into the water to procure the desired supply. I then withdraw the rod and insert in its place the air-tight iron or wooden tube, B, which maybe slightly contractecl at its lo\ver end, to insure its easy passage to its In generM, this tube, E, I make .of iron, and of a thickness that will behra,force applied at its upper extremity sutTIcient to clrive or force it to its place; and, Where, a large or continuous flow of water is desired, I perforate tb,is;:tube near its lower end, to adruitthe water more freely to the inside. The perforations. lJ. m.ay b4about oljl.C'half of Jill ineh in diameter, less or marc, and from one to one and a half inches apart, anL! the pe.rforatiollS
to
ANDREWS V. CROSS.
may extend from tha.bottom of the.tnbe upward one to tw,o The diameter of thl1.);ube shouW be somewhat smaper swell, a, on the drill end of the qriving, rod, D: In localities, where is near the surface of the ground, and thll. well is for temporary use only, as in the case of a moving army or for temporary camps, lighter and; thinner 'materials than iron may be used for making the tUbes, as, for' instance;: zinc, tin; copper, or sheet metal of othel; kindl:or even wood may be used,Tlle rdd may be of any suitable and practical size that can be readily qrivenof forced into the ground, and may be from one to three inches in diameter. In some cases the water will flow ,out from the top of the tube without the aid of a pump. In other cases, the aid of a pump to draw the frotn tho' well may be necessary. In the latter'cases, I attach to the tUbe,: by an airtight connection, any known form of pump."
The claim is as follows: "The process of constructing wells driving or forcing an instrument jnto the ground until it is projected into the water, without remOVing, tne' earth upward, as it is in borinK, substantially as herein deScribed." ,, '
The plaintiffs claim as exclusive owners of the re.issue forthe,county ofYa;dison, New York, and have proTed their title to ,that effect..' The bill alleges: that. the defendant has m:1de;sold;and' used wells in Cazenovia, in said Madison','county, embracing said invention,ai;l.d tnat he has one or more of-said wells and is using the .same. answer sets up as , :; , (1) That Green is not the, and original'" iriventor ;(2) that the bill <l does not desctibe any improvement iIi the metb'od 01. constructing wells', or ()therwise, by which the defendant can know the process (lr improvement in the manner of constructing wells" clain\ed in the bill (3) thn,.t the defendant is a wagon-maker and has done' no other business, and the'tiianUfa:Cturing of wells is not an incident to his profession' or trade; (4) that the claim 'or Green as inventor was barred because the improvement wlUlin"l1setnor'e than'two years prior to the granting of his patent; (5) that the re:issue i'doe\g Jiot'de'scribe any new process, or any new discovery or invention, btttonly claims aIi addition to the original patent, a patent on the free'flow Of not patentable, as it does not claim any patent or anyriew invention of the application or uses of flowing water,' and is theretorevoid, and of no force and virtue, and having been adopted and gone into general use by the public, said pretended patent is thel'efore void in law and eqUity." .
The answer also, sets up that a United States patent 'granted. to James Suggett, March 9. 1865, No. 42,126, describes the same pro. cess, claimed by the original patent to Green; 'that thtl re-issue' to Green is an infringement on the said patent to Suggett; and'on three United patents, one CanadiaU'patent, and one ,British· patent, granted prior 'to the original palent to Green. U does,p.ot the patent to Suggett granted before the invention
272
made, or that Green did not invent what he claims. It alleges that the same invention was "in public use for more than two years, in the United Stat.l36, Canadas, and Great Britain, prior to any claim" for a patent having been granted to' G'reen, and that all claims of Green "as the first inventor of such new process of constructing wells was abandoned by said Green, fromsudhlapse of time"ta the public." There is no allegation that the invention was in ,public use in the United States for more than two years before Green '8:pplied for his origip.al patent, or that any usewa,s with his 'consent ,OJ.' allowance, or,that,he,a.bandoned the, invention: to the public in fact, or'otherwise than inferentially from 'the fact alleged that it was in usefol' more than two years before his original paoont wlts granted. The answer also sets up ,thE! ex.istence of various wells, at various 'places, atdat,e,s prior to'Green's application for 'his It alleges that in April or May, 18tH, there was put down at Independ',ence, Iowa,-,; "A, well made by driving down into the earth an irol1 pipe ot"' tU/Je 'shod with iron or steel point, with perforll-tions in the tube above the point, without a s9ree11 over the same, and sections of tubing attached as driven down, until it was projected some feet into the water, jl.nd to the top of this was attached an iron pump, and the sanie was used for pumping water through, and waS probably usildat such place"from April or May, 1861, until some time in July or August, 1861, and was known to and used by" (certain per. sons named ;) and that" there,was also put,4t?wn in the town of Preble, Cartland county, New York, a well on the farm of Mr. William E. Tallman (now dead) in the summer of 1859, by using an iron tube, one inch inside diameter, and perforating it with small holes at the lower end for about one foot, and by heating and closing the lower end, so as to form a point to exclnde.the earth while driving. The pipe, after being thus prepared, was used by either first driving down an iron rod, and withdrawing the rod, and then driving down the pipe in the place where the rod was .withdrawn, or by driving down the pipe without the use of an iron rod, and attaching sections of pipe by screw conplings, as driven down, till it was projected to a suitable depth into the waterbearing strata of the earth. An iron pump was theti tightly screwed to the top of the pipe, and, by the use of a pump so attached, water was raised for use, and a frame was built over it, on which was constructed a windmill, so attached to the pump as to work the pump when the wind blew, and raise water through the pipe for watering the stock of said William E. Tallman's farm, and was used by and known to the public; and thfl same was worked by the windmill; and used for raising water, as aforesaid, for four years, till about 1863, when the pipe was taken up, and was publicly used and known to" (certain persons named.) ,
The answer does not allege that the use of the wells at Independence and at Preble preceded Green's invention. Finally, the answer denies all parts 6f the bill not before fully answered. The answer
.ANDREWS V. CROSS.
278
is verified by Mr. Storke, of Cazenovia, the defendant's solicitor, who also signs it as solicitor and courrsel. It is not signed or verified by the defendant. It is also signed by Messrs. Jed Lake and W. W. Harmon, of Independence, Iowa, as counse1.There was a replication to the answer. The plaintiffs took testimony in this case, and put in evidence the re-issue to Green and a power of attorney, and an assignment from Green to his co-plaintiffs. They also examined as witnesses in this case Thomas Marshall and James' G. Richards; in Of1tober, 1879 The defendant put in evidence a United' 'States patent to James Suggett, No; 42,126, issued Ma;rch 29, 1864,"and not March 9, 1l:l65, as stated in the auswer;and acertifie(l .copy ofthe file wrapper in watter,of the :9riginal to Green.. The defendant was also;examined /Ios,a.witness for himsel(, in this Eluit, in August, 1880. The defendant.alao.took,inthis;suit, aHndependerice, Iowa, the depositions of Thomas Bherwood;Thomas J. Marinus,H:··A. King, George Warne, A. J. Francis, A. F '-Willlailis, Thomas H. Tyson, S. P. McEwen, in April, 1880. The'foregoing js .all the testimony that was ;taken directly in this suit, .on either side. Underia stipulation made between the parties to this suit, and a notice given thereunder by the defendant to the plaintiffs, tbedepositions of Moses T. Tallman, Abram Vandenburgh, and John D. F. Woolston; taken in February and March, 1880, in a suit in eqility in the circuit court of the United States for the district. of Iow,a, between William D. Andrews and others, plaintiffs, and George Leland, defendant, in respect to the alleged driven well in Preble, are made evidence for the defendant in this suit. Under a like stipulation, and a notice given thereunder by the plaintiffs to the defend. ant, the following depositions, taken at the following dates, in a suit in equity in the said circuit court for Iowa, between William D. Andrews and others, plaintiffs, and George Hovey, defendant, are made evidence for the plaintiffs in this suit: December, 1879, William D. Andrews and Thomas C. Theaker; June, 1880, John Q. Royce; August, 1880, Charles Brown, Adelbert Brown, George W. Burr, Thomas H. Tyson, J. R. Kays, Thomas J. Burr, William H. Joslin, William O. Barnard, and Joseph M. Chandler; September, 1880. John Wiley, Lewis W. Goen, A. R. West, Jed Lake, Oscar C. Fox, Heman F. Robinson, William H. Chase, Joseph L. Galt, Hamilton Ward, Julia A. Green, Judson C. Nelson, Ceylon H. Lewis, John Vandenburgh, (two depositions of his in the Hovey suit being presented, although the notice in this suit mentions his name only once as a wit'ness,) W. T. Blanchard, Clinton D. Bouton, Jesse M. Blanchard, John S. Cornue, Matthias Van Hoesen, Seth Aldrich, Gerrit S.
274: ,
Van Hoesen, Albert H.,"Vitil HoeseIi, Amasa G; Aldrich, Nicholas H. Haynes, and Thomas Ballard. Orrin Pratt, James B... Share, Emma Share, Eben (another dep0l;lition of, each of ·the witnesses Van Hoesen, Seth Aldrich, and Thomas Ballard, in the Leland suit, presented. although the notice in this suit mentions the name of each only once as a wit, ness.)
.
Under a like stipulation and a like notice, the following depositions, taken at the foll()wing dates, in the said suit against are made evidence for the plaintiffs in this suit: August, .1&80, Nelspn W. Green, Joseph L. Galt, J. A. Todd, John M. Fargo, John West, Frank Fargo, Augustus Harrington, Horace Dibble, Hiram Crandall, Jay B.all, .James S. Squires, William P. Randall, Charles C. Taylor, John Wheeler, De Witt C. McGregor, Merton M:. Waters,Stephen Brewer, Matthias Van Hoesen, Seth Aldrich, Thomas Ballard, and Irs Hazard, (the remark before made as to tha, two depositions of Matthias Van Hoesen, Seth Aldrich, and Thomas Ballard being applicable here also ;) August and September, 186lh Abraham P. Smith; Eustace D. pibble, Noah J. Parsonsi Stephen D. Freer and William S. Copeland. ,
The plaintiffs' record makes 1,805 'printed pages; the defendant's, 208. The case came on for hearing on the twenty-first of March last. All the testimony taken directly f0.f the-defendant in this suit had been filed. But the defendant had not'iprinted any of it, nor had he printed, as required by the Btipulatio,n,tMtestimony of the three witnesses ;for the defendant in: the Leland suit"before Tallman, Vandenburgh, and Woolston, or any of it, nor had he filed a copy of any of it. On the fifteenth of March, the first day of the sitting of the court, the defendant applied to the court' to postpone the hearing 'of the cause, but the application wasrafused. upon the cause stood for hearing for the 21st, but, Mr. the solicitor and counsel for the defendant;; whb had attended on the 15th and made said application, did not attend any more, and the -defendant was not represented on the hearing. The case was not argued for the defendant, nor was any brief furnished for him. The plaintiffs' counsel argued the cause O1;ally, and sul;Jmitted a printed brief, and subsequently a printed report of his oral argument. The :plaintiffs also filed a certified copy of, and printed and submitted to the court, all the testimony before referred to as testimony for the defendant, and all their own testimony, before mentioned, ,has been llE1fore the court in print. Under these the testimony all of been read and the case,is to bEf disposed of. It is very much to beregl'etted that the court h'as, not had the benefit of the views of counsel on the part of the defendant as to the questions of fact
ANDREWS ". CROSS.
, 275
and of law arising on the evidence, as it impossible for the court to fully appreciate the bearing of the testimony gi,ven in reply to questions, direct and cross, put by the counsel for the, defendant, or to fully understand what might or would be the view taken on the of the defendant of evidence elicited by questions put on ,the part of the plaintiffs. The first question which arises is as to. the proper construction of the patent. A "well" is defined by Worcester to be "a deep, narrow pit dug in the earth, and usually walled, for the purpose of obtaining a supply of water." He defines "artesian well" thus: .. [Fr. Artesien, of Artois, in France, where this kind of well was first ma(le.l A. perpendicular perforation or boring into the ground, deep enough to reach a subtelTanean body of water, of which the sources are than the place where the perforation is made, and so force up to thEr surface a coI!stant stream of water." .; ,. "
The specification states that the instrument is to be driven down to the water, and the earth it meets with is to be displaced by it and thus packed around it, and not removed upward from it; that the tube, which is either to be inserte'd'in.the place where the instrument has been driven down, after such instrument has been withdrawn, or is to be itself driven down in the first place, is to be air-tight throughout its length, except at its bottom, where it has pei'forations to admit water; that these perforations 'are made for the purpose of obtaining a continuou,+.. flow of water; and that, where the water ddes not flow out from the top of the' tube the aid; of a pump, a pump is to be atta.ched to the top' of the tube by an air.,ltight connection. The specification contemplatee the procuring of water. process seems to be divided into two stages....... (1) Making a hole for the tube down to water by displacing the earth by driving down a straight instrument into the' earth, so-that the earth is packed around the instrument; (2) having in the hole thus an air-tight tube, substantially as large as the hole, with a pump attached to the top of the tube 'by an air-tight connection. ' The specification does not otherwise explain the. rationale of the
process which results in having the water issue from .the top of the tube. When a rod which is not a tube is driven down to water, there is as yet no well. When the rod is withdrawn, if the source of the water is higher than the top '6f the hole, water will {ssue from the top, and there isa well; and, ,when the air-tight tube iB inserted in the hole, there is still a well. If the rod is withdrawn and the airI;ighttube is insertea: or if such tube is driven in, the first place, an4 no water issues without. the aid of a pllmp" there is no well, in the-
FEDERAL
sense of the specifillation, till the pump is put on by an air-tight connection, in such a. way that, by the use of the pump, the process can result in causing water to issue from the further upper end of what is so connected with the top of the tube. The construction of a well, spoken of in the specification as the invention made, and which it must be presumed was intended to be secured, is, thus, not merely the displacement of the earth by driving down the instrument or the tube, but is, in addition, having the air-tight tube in the earth with the earth packed around it, and a process arranged, by the mechanical aid of a pump, attached by an air-tight connection to the tube, for causing the water to enter the perforations at the lower end of the tube and issue from the upper end of the tube. What particular forces are in operation to produce this process of obtaining water, when the well is not a flowing well, is of no importance. The specification need not explain. The mechanical means are fully explained which result in the obtaining of the water, from the commencement .of the driving. The process of obtaining the water comprehends all the ste.ps which form part of that process, as they result from or attend the mechanical means set forth. The process consists in having an air-tight tube with the earth tightly packed around it, resulting from compacting the earth by displacing it by driving a rod or the tube, and having a pump attached at the top of the tube by an air-tight connection, and, by the operation of the pump, obtaining a supply of water at the top. In describing how the invention is made and used, so as to enable others to make and use it, the description includes driving the rod, putting in the airtight tube, and having the pump, and obtaining a continuous supply of water. . The invention being thus defined in the specification, the claim is to be construed as broadly as the invention, unless necessarily restricted by the language used in the claim. The claim is: The process of constructing wells by driving or forcing an instrument H
into the ground until it is projected into the water, without removing the earth upward, as it is in boring, substantially as described."
Where the well is a flowing well, the water will flow as soon as the hole is made, and to make the hole by driving and displacement, and insert the tube and have the watet' flow, develops the process. Where the well is not a flowing well, the pump, in addition, is necessary, and the use of the pump in the well so made is a use of the process. Driving or forcing an instrument into the ground until it is projected into the water, withollt removing the earth upward as it is in boring, is an essential element in the process, in either case; and,
ANDREWS V. GROSS.
277
where the well is not a flowing well, the claim: is a claim to the process substantially as described; being the proce'ss above explained in case of a l!on-flowing well, an inherent constituent of which is the driying process, the process claimed, however, including the other modes of operation which attend the proouring, by a pump, of water from a tube in a well so constructed. In this view, where the well is n, non-flowing well, the use, to procure water, of a pump in a well thus constructed and having its features, is a use of the process, although the person using the well and the pump and the process may not be the person who caused the rod to be driven, or the hole to be made, or the tube to be inserted, or the pump to be attached. This re-issued patent was under consideration in Andrews v. Carman, 13 Blatch£. 307. In the decision of Judge Benedict, in that case, the re·issuecl patent was held to be valid; the state of the art of constructing wells at the time Green made his invention was explained; the peculiar features of Green's driven well were commented on; the claim was held to be a claim to a process, the element of novelty in it consisting in driving a tube tightly into the earth, without removing the earth upwards, to serve as a well-pit, and attaching thereto a pump, so that the process puts to practical use the new principle of forcing the water in the water-bearing strata of the earth from the earth into a well-pit, by the use of artificial power applied to create a vacuum in the water-bearing strata of the earth, and at the same time in the well-pit; and it was also held, that the claim might well be construed as claiming the well as a manufacture constructed according to the process described. The evidence in the present case shows that any person, by using a pump, applied as direoted, on the tube directed, in the well constructed as directed, will put to practioal use what is in Andrew8 v. Cannan defined to be the "new principle." Although the speoification does nqt state what such new principle is, the evidence in the present case shows what it is, and that it is certainly and effectively developed, to the end of obtaining a copious, contiuuous, and unfailing supply of good water, and that it is what is thus set forth iu Arulrew8 v. Carman. It may be that the inventor, did not know what the scientific principle was, or that, knowing it, he omitted, from acciclent or design, to set it forth. That does not vitiate the patent. He sets forth the process or mode of operation which ends in the result, and the means for working out the process or mode of operation. The principle referred to is only the why and the wherefore. That is not required to be set forth. Under section 26 of the act of July 8, 1870, (16 St. at Large, 201,) under which
I'EDEBAL BEPOBTEB.
this re.issue was granted, 'the specification contaibsa description of the invention, and of "the manner and process of making, construct· ing, compounding, and using it," in such terms as to enable any person skilled in the art to which it appertains to make, construct, compound, and use it;. andJeven regarding the case as one of a machine, the principle ()f the machine within the meaning of that section, although the scientific or physical principle on which the.process acts, when the pump is used with the air-tight tube, is no. explained. An inventor may be ignorant of the scientific principle, or he may think he knows it, and yet be uncertain, or he may be con· as to what. it is, and. others may think differently. All this is if, by the specification, the thing to be done is so set forth that it can be reproduced. , This re-issue was also adjudicated upon by JudgesiDillon and NelSOD" in Andrewsv. Wright, 13 O. G. 969, and the claim wa13 conto be for .a .·process such as I have defined it to be. Under this cOI).struction the defendant 'has infringed by using a pump ina driven well cons.tructed in a house hired by him, to obtain a supply of water for the ,USe of his family, although he may not have paid for driving the well or have procured it to be driven. use of the well was a use of the patented process. The invention .of Green is shown to have preceded any invention maqe by Snggett, and described in his patent of Murch 29, 1864. The evidence also shows that none of the defences set up in the answer are established. The conclusions arrived at in the decision in Andrews v.C(lrman by the teswmony in this case. 1'hose conclusions ralateto the novelty of Green's invention, and to the question of the dedication and abandonment of the invention to the This latter question must be decided under the public patent was'applied for. No laws in force in 1866, when the abandonlllent or dedication of the invention to the public by Green is shown. The COnstruction of ,the well on the fair ground at Cort· lap.d, the direction of Green, and its use, by his consent, was an experimental use, to test it. The rule laid down in Andrews v. Cannan, aeto the propel' c0nstruction of section 7 of the act of March 8, 1839, (5 St. at Large, 354,) as deduced hom prior rulings, was thl1t that section had no eff£lct to invalidate a patent unless there was proof Qf actual abandonment or of, 'anse of the invention, with the knowledge and, allowance' of the inventor; more than two years prior to his application for his patent. It was held in that case, not only that there :waa no evidence of 11 4 ;' URO or sale of the
ANDl\!E'WBV, CROSS·,
invention by Green before his application for "a. patent, but 1;\0 suf. fi-eient evidence, from which to i!Jonclude that any use of any driven well by others before his applikation was consented .toot allowed by him. Such, also, was the conclusionin Andrew8 v. W'right, andsuc4 is the result of· the evidence in the present case. Green testifies that' he first heard in the latter part of 1865 of the use by othera ohlriven wells made by his process, being his first ,knowledge of any others than those he experimented with in IS61; that he immediately, in December, 1865, or January, 1866, made out and sent to Washing. ton an application for a patent; that that was lost in the .pp,tent, office; and that he followed it up by the one in March, 1866, on which the patent was granted. The evidence as to the delay in ap· plying for the patent, as bearing on the question of abandonment, was considered in Andrew8v. CaNnan, and the decision was arrived at that the delay was excused,. The sa,me view was taken in Andrew8 v. Wright. The evidence in the present case il? of same character and leads to the same None of the oiherdefences set up in the nor is an made to sustain any others than those above mentioned, except the Preble well and the Independence well. They were not' set up Or testified libou:fin the cases against Carman and Wright. The evidence. as .);'reble well fails to establish its existence as a driven well, or one'inwhich the process of Green was developed: The alleged inventol"Of it, William E. Tallman, is dead.lIis brot4er, Moses T.Ta.lhiian,. did not see it constructed. All the facts testified to about it, and the remains presented,-the punctured piece of pipe, the copper strainer, an:d the section of iron stove-pipe, open at hqth ends,-are at .ieaat as with an apparatus for filtering the :w1tter in in question, while pumping it up, as with a driven well.: With; the <lopper strainer on the end of the pipe, w\1ereit' probably was"if the pipe was in the, well at all, have bee.n no driven well, in the sense of Green's well. If there. was sandin the bhHom of the Vi'ell, which was likely: to be drawn in through punctures in the pipe, whe.n psed in the dug well, if thoseptlnctures were at the botton of up the pipe. might raise it above the supply of water, "when the water was low; but putting the strainer on the end of andsurrounding the strainer with the section of stove-pipe, would keep out the sand. even when the water'was at the lowest, and permit the water to pass, and, the water enough,to, passthroughthe in the it would be so far above. th(:\ !SQ.nd. clell'r.of sand. All ,the, ;evi.
280
dence of Moses T. Tallman goes to show that the well was not a driven well, and that there was not in it, any such process embodied as that of Green. The testimony of Abram Vandenburgh is not entitled to any more weight. On the other side, the evidence is overwhelming that there was and could have been no driven well at the time and place in question. As to the driven well alleged to have, been put down at Independ· ence in April or May, 1861, it is quite clear that the witnesses who testify tothat date' are mistaken, and that the well in question was put down in May, 1866. The evidenci3 to that effect is very com. plete and detaileda;nd minute. There mllstbe the usual decree for the plaintiffs, with costs.
THE AdENa. (District dourf-, 1. LmrrA,TION OF
li.' 'D.
Illinois'.
July 15, 1881.) OCCURRING' ON DISTINCT'TRIPS
-CARGO-REv. ST. 4284, AND 4285-AD:tomlALTY RULES 64, 55, 56, AND 57. The steamer Alpena, while on a voyage from Grand Haven, in the state of Michigan, to Chicago, in the state of Illinois, foundered and sunk with all her cargo, passengers, etc., on board. Soon after, her owner filed a petition in lhis court, under sections 4283, 4284, and 4285 of the Revised Statutes, which provide for the limitation of an owner's liability, etc., praying that upon complying with the requirements of the statute he might be exonerated from any liability not therein provided for, for loss of goods and for damages in consequence of loss of life on this last voyage, and also for damages alleged to have been sustained by a schooner in a collision with the. steamer on a trip .made some weeks pre:vious. Upon filing this petition, an order was entered directing the petitioner to convey all its rights, etc., in what remained of her and to freight pending at the time of her loss, to a trustee, follOWing the provisions of the stattite. Upon being informed that this had been done, the court ordered a monition to issue citing all persons having claims for damages against either the steamer or the company, as her owner, to appear and prove their claims. On or before the return-day of this monition a large number of claimants appeared specially and took exceptions, which resolve tltemselves into two questions: (1) Can the liability of the owner be limited under the statute as to any loss or damage excep,t that occurring on the voyage last preceding the tiling of his petition, or on the voyage in which the steamer was lost? and (2) whether, under Admiralty Rules 54, 55, 56, and 57, this court has jurisdiction in the premises when the proceedings instituted under the statute by such an owner arc not preceded by a suit brought at the instance of one of the losers, As to the first question, the court held that an owner's liability can only be limited as to such loss or damage as occurs on the last voyage preceding tIle filin'g of the petition, or on the voyage in which the vessel is lost. As to the second question, the court l.eld, further, that the admiralty rules referred to therein do not make the institution of such proceedings conditional upon the bringmg of a prior suit by one or more of the losers.
THE ALPENA.
281
2. REV. ST. H 4283,4284, AND 42"5-MEABURE OF LIABn..ITY.
It seems t1;lat, under the statute, the measure of such petitioning owner's value of the vessel immediately after such loss or damage. liability is 3. ADMIRALTY RULES
54, 55, 56,
AND
57-PRACTICE.
It seems that, if such owner fails to institute proceedings Until after a suit has been brought by a loser, then he must commence them in the same district court as that in which such suit was br< U jht.
In Admiralty. Petition for limitation of owner's liability, etc., under sections 4283, 4284, 4285, Rev. St. Cook d Upton, for petitioner. Alfred Russell, for claimants. W. H. Condon, for schooner Stockbridge.. BLODGETT, D. J. In this case the Goodrich Transportation Company alleges that it is the sale owner of the steamer Alpena, her engines, tackle, apparel and furniture; that such steamer was a vessel of upwards of twenty tons burden, duly enrolled and licensed for the coasting trade, and employed in the business of commerce and navigation between ports and places in different states and territories upon the lakes and navigable waters connected therewith; that on the sixteenth day of October, 1880, upon the waters of Lake Michigan and within the admiralty and maritime jurisdiction of the United States, and while ana voyage from the port of Grand Haven, in the state of Michigan,to the' port of Chicago, in the state of Illinois, with a. cargo consisting of goods, wares, and merchaudise, and passengers, said steamer Alpena, in a severe gale, foundered and sunk with all her said cargo, passengers, officers, and crew on board, without the fault or neglect of duty of any of said officers or crew; and that such foundering, loss of· life and cargo, was occasioned without the design, neglect, privity, or knowledge of the petitioner, or any of its officers or agents; that said steamer was, when she entered npon said voyage, in good seaworthy condition, and properly officered, manned, and equipped; that said steamer, her engines, tackle, apparel, and furniture, except some of the npper portion of her cabin, her piano, a few cabin doors, two small boats, and a piece of her main deck with the capstan attaehed, lies sunk in the waters of Lake Michigan, as nearly as petitioner can ascertain, off or south of the town of Holland, in the state of Michigan. The petitioner further states that the owners and consignoes of goods on board said steamer were very numerous, and the petitioner nas reason to believe that numerous suits' may be brought by the owners of sa.id cargo against the petitioner, as owner of said steamer, for the loss of sUl:h cargo, and also that suits will be brought against
·
petitiomr to. recover damages oC<lagi6lled by the loss of the hves of the paaserigers and of said, and that the aggregate of the claims for said losses wig grel'ttJy exceed the value of petitioner's interest in said vessel. ' "', .,' It isfurtMr ,a,Heged that a libelin'per80nam was in this court on the tenth day of November last: illgainst petitiorier,by Louis Hutt, asowtlel' ;of .the .schooner Stockbridge", to recover damages. alleged to have been sustained by said Hutt py reason ofa o011il,ion between said schooner and said steamer on the tenth day of September, 1880, which suit is now pending. On the filing of this petition ,an,: (Pl1ier was entered that petitioner cC}nvey. all its right, title, and; inte!l;e/ltto whatever remained of said steamer, her engines, boiier,machinMY, tackle; bqitts, .apparel, and furnitllre; and· freight pending at the time of the, loss of said steamer, to: a; trustee use and benefit of any and all'persons having .any claims against said steamer, 9r said company aathe owner thereof. And it having been subsequently reported to the' court that· such conveyance had duly made; ·a monition was by order of the court issued against all persons claiming any damage against said steamer, or the for any loss, destruction, or injury,.citing them to appear make ,due proof of,their claims, etc. On or befoee the return,day ofth,is ID(;mition, a large number' of claimants appeared specially, "not submitting to the jurisdiction of the court, but protesting against the same solely for the purpose of objecting to/the jurisdiction,of the court," and. excepted to the sufti'· ciency of the petition, and to the jurisdiction of the court in the premises.. These exceptions, which are twelve in number, resolve themselVes practically into two questions: (1) Can the liability of the owner of the steamer be limited, under the law, to any loss or dal1Iage,except that occurring on the last voyage, or the voyage jn which the steamer was lost? (2) Does the petition show sutficient facts to cl<lthe this court with jUlisdiction to apPj)rtion the value of the owner's interest affiOllg the several persons who suffered damage on the voyage in which the steamer was sunk? '
As to this first question, it was conceded on the argument that the steamer was during the season of 1880, up to the time of her loss, engaged in running regular daily trips or voyages between the ports of Chicago and Gra.ud Haven, on Lake Michigan, and that the collision between the steamer and the schooner Stockbridge occurred on a trip over a month prior to the commencement of the trip in which the steamer foundered and sunk.
283
I am clearly of opinion that the casualties or losses of different voyages cannot be aggregated or grouped together, say at the end at a season, or when a final catastrophe ensues, and all the losers be cited in to shal'e what has been saved from shipwreck or other disaster, together with the pending freight, and have a decree entered exonerating the owners from personalliability. It seems to me that each voyage or trip, each separate journey, which the ship makes from one port to another, muat be treated,as a separate venture, involving ita own particular hazards, losses, and earnings j and that when each such voy,age is.ended it is for the owner to decide whether the losses have been such as to make it expedient for him to invoke the protection given by this act of congresS>. If he does not decide to do this, but,sends his ship upon a new voyage, he thereby concedes incurred on the past voyage. his personal liability for the The owner, freighters, and passengers on any particular voy.age may be said to have a common interest for that voyage. They may be compelled to contribute for jettisons made for the common safety under certain circumstances. But there is nothing in common bepassengers of different voyages. Each tween the shipper or passenger may perhaps be held to have had some pemonal knowledge or information as to the seaworthiness of the ship, arthe skill of her officers or crew,on the voyage in which he was interest,ed, and to have acted on that knowledge to such an extent as in some degree to affect, his and the owner's relative rights; but no su04 knowledge can be predicated of any other voyage, and, it Would eertainly seem to have been beyond the intended scope (If this law, that after a series of losses happening on different trips or voyages, no one of whioh was of sufficient oonsequence to induce the owner to seek the benefits of this law, he can be allowed to combine them and obtain immunity from personal liability. The language as well as the evident reason of the statute shows that this proceeding can only be had for the purpose of apportioning the owner's interest between several persons who haveeuffered "losses on the same voyage." I am, therefore, of opinion that the petitioner cannot by this petition obtain relief as against the suit for ,collision with the schooner Stockbridge. As to the second question, it is objected that under admiralty rules 54, 55, 56, and 57, promulgated by the supreme court for the purpose of prescribing and regulating the procedure under this law, the court cannot entertain a petition by the owner for an apportionment of 'his interest in the vessel among the several sufferers and for
284
FEDERAL BEPOBTER.
l
a limitation of his liability until some suit has'been commenced for a loss, destruction, daIIlage, or injury'sustained by one or more of such sufferers, and then such petition must be filed in the district court of. the district where such suit has been commenced. In other words, the position of these claimants is that inasmuch as this suit for collision with the Stockbridge, now pending in this court;-1s not for a damage accruing on the final or last voyage of the steamer, that that suit does not, aid or confer. jlH'isdiction,and the petitioner not showing that any libel had been filed· in this court or suit brought in this district prior to the filing df the petition, this court has no jurisdiction in the premises. It must beconeeded, I think, that if this court only has jurisdiction of this SUbject-matter and parties by virtue of the rules in question, then there is much force in the position of these respondents. But it seems to me that it was not the intention of congress to suspend the right of the ship-owner to invoke the provisions of this law until suits or libels in personam, should be actually instituted against bim. The language of the statute is: "And the owner of the vessel * * * may take the appropriate proceedings in any court for .he purpose of apportioning the, sum for whIch the owner of the vessel may o!'l, liable amoIlg the parties entitled thereto." Here is no intimation that the owner must wait ulitil he has been sued before he can "take the appropriate proceedings in any court;" while from the nature of the owner's liabilIty, and the scope of the relief'furnished by this law, it would seem that proceedings should be ,while the testimony necessary to establish the facts which secure immunity to the owner is available. Rule 57 says: " The said libel or petition shall be filed, and the said proceedings hall, in any district court of the United States in which said ship or vessel may be libelled to answer for any such embezzlement, loss, destruction, damage, or injury; or if such ship or vessel be not libelled, then in the district court for uny district in which the said owner or owners may beaued that behalf." There is an obvious convenience, if a libel has been filed or suit brought for any such loss, in requiring the owner to go into the same court to take the steps which shall limit his lia,bility, because this brings all the claimants, both those whose who have sued and those who have not, together. But suppose libels filed or suits brought simultaneously in different courts against the same or different owners, which might often happen, which court, then, is to have jurisdiction of the proceedings to limit liability? All the authorities now, I think, concur in the conclusion that the measure of the ship.
285
owner's liability is the value of the ship immedatelyafter the loss ,01' damage complained of. If the loss occurs by the beaching of the vessel, it is her value as she lies upon the beach. .If it occurs by the sinking of the vessel, it is her value and the value of her belongings as she lies sunken. Now, in order to save what is thus left for the benefit· of shippers and the owner, it is necessary, in almost every conceivable case, that immediate steps be taken to sell and convert the property into money, to be held for those entitlecito a.pportion,;, ment, and this can only be done by some appropriate proceeding, in court without delay. What is available may be perishable, or need ""'Immediate care, and the owner, by acting, the direction or sanction of a court in that regard, might at least hazard, if .hI'! did not lose, his l'ight to protection under the law. So, too, the might be in condition to be repaired, and her value for the purpose of reparation would measure the owner's liability to his shippers, If he repairs before this value is properly ascertained by proceedings in some court, under this law, he runathe risk of losil].g the protection the law affords him. It seems, therefore, quite satisfactory to my mind that court did not intend, by its rules; to say that no proceeding to,appor·tion the share of each loser in the value of the vessel sh<lUld be had until some one of the losers should have commenced a suit; but the court only intended to say that if the owner delayed such proceedings until a suit had. been commenced, then he should commence such proceeding in the district court where such suit was Commenced. 'But if the shippers whose property has been lost or damaged by a shipwreck or other disaster, to which the owner is not privy, do not see fit to commence suit at once, I can see no reason or principle in the law a vessel to lie silent until, itself which,. shall compel the eithex impossible perhaps, his testimony may be lo!'lt, or it or difficult to estimate the value of his interest in the vessel, and only ask the aid of the court when suit is begun against him, which may be any time before the bar of the statute of limitations. In this case the remnants of this vessel, so far as recovered, are within the jurisdiction of this 'court; the freight pending has been paid to the trustee appointed. The sunken hull and machinery may not he within the territorial jurisdiction of the court, but the title, wherever they are, has been conveyed to the trustees. I therefore conclude that this court has jurisdiction to entertain this proceeding, although no suit had been brought in this court or district by anyone who would be bound by this proceeding at the time
286
FEDERAL: REPORTER.
this petition was filed. All the claims presented so far, excepting that of Hutt, for collision with the Stockbridge, are by administrators of persons whose lives were lost by the wreck of the steamer, and they make the further question that the act of congress does not protect the vessel-owner from liability for loss of life. I do not consider that the character of these claims cuts any figure in determining the question of the jurisdiction of this court over this petition, because if liabilities of this character are not covered by ,the act ()f congress, then no order of theeourt in this matter can affect them. I, however, had this question before me in the case of The Sea Bird, s few years since, and came to the conclusion that this class of claims"' was within the act, and no light which has been thrown on the subject by later decisions and the discussions of this case has changed my view in that regard. Most of the statutes in this country giving a right of action for death caused by negligence, and notably those of Illinois and Michigan, one of which must control in this case, have been substantially copied from Lord Campbell's Act, as it is called in England, and which was enacted prior to the' act of congress limiting liability of ship-owners, and proceed upon the' principle that the heirs, executors, or administrators of the person whose life is so lost by the negligencd of another, have a pecuniary interest in such life. In some of the states the amount recovered goes directly to the widow and next of kin, and in others it goes into the general assets; so that the persons to maintain an action ma.y be said to have a "property" interest in the person whose life is lost; and it is because of this property or pecuniary interest that a right of action is given. I do not look upon these suits as penal suits, punishing the guilty party for his negligence, but only as a remedy for the recovery of the pecuniary interest which the survivors of the person whose life is so lost have in his life.
GREGORY V. ORRALL· GREGORY and others v. ORRALL (Otrcuit Oourt"D. 1. SALVAGE-ExTRAORDINARY
ana 'others.
;
"
Where such a casualty happens to a vessel as requires salvage Rervices to be rendered and extraordinary repairs to be made, owners of the goods on board;' if called upon doao, must contribute to 'the expense thereby incurred, pro-·' vlded such casualty.was due in no way tO,the previous negligence of the master. :' 2. OF PROOF. _
The burden
making out negligence ilion such owners.
'"
In Equity. ': ,I , '0. F. J/ T. H. Russell, for complaina.nts. John C. DdiJ,ge ct. Sons, for defendants. , i LoWELL, C. J .. This bill is, brought by the owners of masted schooner Cephas Starret, against the shippers of a. part ,of th.x cargo, for a contribution to general average. On the, twenty-sixth of: Jtdte, 1879, the ,schooner was lying at New Orleans, ready for sea, having taken on board the timber belonging to the defenl;lat;ltsJ which was stowed in the ,hold, and twenty bales of compresl:\ed rags, the property of other consignees, stowed between decks. The crew had shipped, but only the mate, boatswain, and cook had comeot;l, board. The master spenUhe -night on shore. When he left the ship the mate was on ahore, but. was expected to return soon. The boatswain and cook usually slept on deck, on top of the forward house. He gave general directions to them to keep a sharP lookout, not meaning that they should keep watch, and none was kept, so far as he During the knows. The mate, I suppose, was to sleep in night a fire broke out on board the ship, of which the master was first informed by the mate. The charges and expenses for which contribution is asked, are for salvage paid foJ.: steamers, or floating fire-engines, used in putting out the,fire, and for extraordinary repairs and supplies, rendered necessary by damage suffered in the course of putting out the flames. , The defendants allege that the 10s8 was caused in whole or in part by the negligence of the master. If this is made out, the ship-owners must bear the whole, because it is only when the carrier bas been involved in a peril by a superior force, or by misfortune, without his own fault, that he can throw a part of the burden of relieving the property imperiled npon those persons whose goods be ;was bound to carry and protect with diligence and reasonable skill, as in the instance commonly put in the books of the jettison of goods which