CIRCUIT COURT, DISTRICT OF OREGON.

WILLIAMS v. MCCORD ET ALS.

Decided March 26, 1884.

PATENT FOR "REVOLVING DIP-NET."-The patent issued to Thornton F. Williams on August 2, 1881, and numbered 245,251 for an improvement in revolving dip-nets," declared void for want of both invention and novelty, the same having been invented and put in operation by Samuel Wilson at the Cascades of the Columbia in the spring of 1879, from which machine the said Williams, in the fall of that year and the spring of 1880, constructed his revolving dip-net."

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SUIT for an infringement of a patent, for an account and an injunction. The opinion states the facts.

D. P. Kennedy and William B. Gilbert, for the plaintiff.
H. B. Nicholas, for the defendant.

DEADY, J. This suit was commenced on January 12, 1883, and is brought against the defendants for an account and to recover damages for the wrongful use by them of a certain "revolving dip-net,' alleged to have been invented by the plaintiff, and for an injunction to restrain them from the further use thereof.

The bill alleges that the plaintiff, being the first and original inventor of such dip-net, on November 4, 1880, applied for letters patent thereon, which were duly issued to him on August 2, 1881, and numbered 245,251; that the defendants on March 1, 1882, without the consent of the plaintiff, constructed a "revolving dip-net on the south side of Bradford's island in the Columbia river, * * * embracing the improvement and invention described in said letters. patent," and maintained the same "in operation during the fishing season of 1882," that is, from April 1 to August 1, to the damage of the plaintiff $100; and still continues to operate the same.

The defendants, answering the complaint, deny that the plaintiff is the original inventor of the net in question and that the same was not in public use when the plaintiff applied for his letters patent, and allege that said dip-net was fully described in Harper's Monthly Magazine for May, 1880; that Samuel Wilson of Dallas, Iowa, invented and put in operation on the Columbia river the dip net described in the bill in April, 1879, long before the alleged invention of the plaintiff, and that the plaintiff surreptitiously availed himself of said Wilson's idea and invention and obtained a patent for the same while the latter was engaged in perfecting it; but that neither said Wilson nor the plaintiff was the first inventor of said dip-net, and that the same had been in use in other places by other persons for the purpose of catching fish for many years before, specifying among others, sundry places and persons on the Catawba and Pedee rivers in North Carolina, where it had been in use, in some instances, for more than fifty years; that on January 4, 1882, the defendant McCord, being the first and original inventor of certain improvements in a fish-wheel, made application for letters patent thereon, which on May 16 of the same year, were duly issued to him and other defendants, as the assignees of said McCord, and

numbered 251,960, for an invention entitled a "fish-wheel;" that afterwards in 1882 the defendants licensed the "Snail-Wheel Fishing Company," a corporation duly formed under the laws of Oregon, the defendants being the officers and stockholders thereof, to conduct such a fish-wheel on the south side of Bradford's island, and that said corporation did construct and operate such wheel at said place during the fishing season of 1882, which is the same machine referred to and mentioned in the bill as being an infringement on the plaintiff's dip-net.

It appears from the evidence that fish-wheels or dipping-wheels have been used on various rivers in North Carolina for the purpose of taking shad and other fish that are in the habit of ascending the same, as alleged in the answer. The wheel consisted of an axle or shaft of four or five feet in length, resting horizontally upon two upright posts or forked timbers planted on either side of a sluice or chute in the river, into which were let three pairs of arms or bows from three to eight feet long, owing to the depth of the water, and equidistant from each other. These arms were made of tough wood, and bent forward at the outer end like a plow handle and covered with a netting of twine so as to constitute a "dipper," not unlike in appearance, according to the language of a witness," the top of a falling-top buggy."

The wheel was turned down stream by the force of the current striking the back of the "dippers," one of which was always in the water, and into which the fish ascending the stream by that chute or sluice went, and were carried upward and backward over the shaft and lodged on an inclined trough made of slats placed between the inner ends of the arms, on which they slid down into a box or tank immediately outside of the inshore post.

In the spring of 1879 and prior thereto, Samuel Wilson, a carpenter, who was living at the Cascades of the Columbia, on the Washington side, conceived the idea of taking fish by means of a wheel driven by the current, and actually constructed one and put it in operation there by April, 1879, but on account of the health of kimself and family he returned to Iowa in May of that year, leaving his wheel in charge of James Parker, who took a few fish in it before the high water carried it away. Afterward, on March 2, 1882, Wilson applied for a patent on his invention of "a new and improved fishing-wheel," which was issued to him on September 12, 1882, and numbered 264,395.

In the specification it is described as "a wheel constructed with nets embraced in four or more sections thereof, to each of which nets an opening is made from the periphery or near it, and from which there is an escape passage from the center of the wheel, and at one side, to a chute leading to a cage-net, all so arranged that the wheel being located in a fish way to be rotated by the water flowing against it or by another wheel attached to the shaft outside of the fishway, the mouths of the passages into the nets of the wheel will open at the rear of the wheel to the fish ascending the stream, to be

entered by them as they attempt to pass under the wheel, whereby as that side of the wheel rises the fish will be caught, carried up, and shunted out through the aforesaid side central passages into the chute, by which they will be delivered into the trap-cage, to be taken out at pleasure, as hereinafter more fully described." The size of the wheel might vary from ten to forty feet, owing to the depth of the water; and the one constructed was about twenty feet in diameter.

As early as the spring of 1877 the plaintiff lived at the Cascades of the Columbia, on the Oregon side, and was engaged in taking fish there with the ordinary gill and dip-net, and has lived there ever since. It is asserted in his testimony that he "conceived" the idea of this revolving dip-net in the fall of 1878, and that he commenced to construct it then, but did not get the lumber in time to finish it for the fishing season of 1879, and therefore abandoned it or gave it up till the fall of that year, when he went to work on it again, and got it into operation in time for the fishing season of 1880, and afterwards obtained a patent for the same, as alleged in the bill.

In his specification the plaintiff describes his alleged invention as "a new and useful improvement in revolving dip-nets," and claims "as new" therein: (1) "The box-nets I, constructed with holes M at their inner ends, substantially as herein shown and described whereby the first fish or nets?] are discharged as set forth; (2) the nets I secured to arms of shaft E, leaving an opening at the front, except at the inner part, for the inlet of the fish, and at the rear an opening for their outlet, as shown and described; and (3) the combination, with rotary wheel having nets I, with discharge openings M near the hub, and having the inner part inclined towards said openings, of a receptacle, J, arranged as shown and described." But the decided weight of the evidence is that, in the fall of 1878, the plaintiff was engaged in getting together the material and preparing the timbers for a fish "trap" at the Cascades, and not a wheel or net, which he never completed, and is now falsely claiming to be the conception or beginning of his "revolving dip-net." that, in the fall of 1879, he availed himself of his knowledge of Wilson's invention, thinking, it may be, that he had abandoned it, and constructed the machine for which he afterward obtained a patent.

And

In the May number of Harper's Monthly for 1880 there is a woodcut of the North Carolina wheel (p. 849), illustrating an article, "The Shad and the Alewife."

The Wilson wheel, either as patented by himself or the plaintiff, although in the main anticipated by the North Carolina wheel, was, so far as appears, constructed without any knowledge of the existence of the latter, and is an improvement upon it in some material. particulars. But the plaintiff's wheel being a mere copy of Wilson's, with some immaterial changes in form and material, his patent is void, both for want of invention and novelty: Walker on Pat., secs. 23-52.

The wheel used and patented by the defendants is probably an improvement on Wilson's-particularly in the arrangement of the baskets or nets, whereby the fish are discharged below the shaft, and are less liable to be injured. But as the patent to the plaintiff appears to be void for the reasons stated, it is not necessary to consider that question.

But I cannot refrain from adding on behalf of the public that I think the best disposition that could be made of this controversy would be for the legislature to intervene in the interest of the fish of the future, and prohibit the use of these murderous machines anywhere in the waters of the state.

The bill is dismissed with costs.

SUPREME COURT OF COLORADO.

DOWNING ET AL. v. BARTELS.

Filed March 14, 1884.

TITLE TO A LOT IN THE ORIGINAL TOWN SITE OF THE CITY OF DENVER, entered by James Hall, probate judge of Arapahoe county, on May 6, 1865, by virtue of the act of congress for the relief of the citizens of Denver, approved May 28, 1864 (13 Stats. at Large, 94), can be acquired only in the manner designated by such act and by the territorial acts carrying the same into effect.

THE SAME VALIDITY OF DEED FROM PROBATE JUDGE-ATTACK ON.-The validity of a deed to a portion of such town site, executed by the successor in office of such probate judge, in pursuance of the territorial act of February 8, 1872, cannot be attacked in a strictly legal action of ejectment, by evidence showing that the preliminary steps and conditions required to a valid conveyance had not been complied with by the grantee, prior to the execution of the deed, when the deed is regular upon its face and purports to have been executed to the person found to be entitled thereto under the laws of congress and the statutes of Colorado, and by the officer intrusted by the government with the legal title, and duly authorized to convey. In executing the authority vested in him by such act, the probate judge exer cises judicial functions, and his voidable acts can only be impeached in direct proceedings to

set them aside.

INSTRUCTION PARTLY CORRECT AND PARTLY INCORRECT.-An instruction is fatally erroneous which contains one correct and one incorrect proposition respecting the legal effect of the evidence, and which tells the jury that if the evidence sustains either proposition the verdict must be in a certain manner.

A FICTITIOUS GRANTEE RENDERS INOPERATIVE and void a conveyance purporting to be made to him.

APPEAL from county court of Arapahoe county. The opinion states the facts.

France & Rogers, for the appellants.

Blood & Bartels, for the appellees.

BECK, C. J. This was an action of ejectment brought by the appellee, H. Bartels, to recover possession of lot 6 of block 13, of the east division of the city of Denver. It was originally instituted against the defendant Anderson only, the complaint alleging that Louis F. Bartels, deceased, died July 27, 1874, seized in fee of said lot, and by his last will devised the same to the plaintiff, for and during her life, or until she again married; that she has not since married; that on September 1, 1874, while plaintiff was seized

in fee and entitled to possession, the defendant, without right or title, entered upon the lot, ejected the plaintiff and still withholds the possession from her.

Anderson answered, denying that Louis F. Bartels was in his lifetime seized of the property, and averring that said defendant entered upon the premises September 1, 1878, as tenant of his codefendant, Caroline E. Downing, and has continued in possession to the present time.

Caroline E. Downing, who was made a co-defendant on her own motion, also answered, denying the title alleged in Louis F. Bartels, and the title and right of possession of the plaintiff, and averred that she, long prior to September 1, 1874, was seized in fee of the premises, and long prior to that date was in lawful possession thereof as the owner in fee.

The cause was tried by a jury, the trial developing the fact that both the plaintiff Bartels and the defendant Downing claimed title from the same source, viz., by deed from the probate judge of Arapahoe county.

The jury returned a verdict in favor of the plaintiff Caroline H. Bartels, on which judgment was entered that she recover the lot and premises in controversy, and that a writ of restitution issue therefor.

The lot comprised a portion of the original town site of the city of Denver, entered by James Hall, probate judge of Arapahoe county, on the sixth day of May, 1865, by virtue of the special act of congress, "for the relief of the citizens of Denver," approved May 28, 1864: 13 Stats. at Large, 94.

The plaintiff, to maintain the issues on her part, introduced the following conveyances, to wit: United States to James Hall, probate judge, patent for said town site, dated July 1, 1868, which recites the entry of the land in trust for the several use and benefit of the occupants thereof, according to their respective interests, under the act of congress aforesaid, and to his successors and assigns, in trust as aforesaid.

James Hall, probate judge, to Omer O. Kent, successor in office, same tract, March 16, 1867.

Omer O. Kent, probate judge, to Jacob Downing, successor in office, same tract, August 31, 1867.

Jacob Downing, probate judge, to Henry A. Clough, successor in office, same tract, except the executed part of the trust, September 23, 1869.

Henry A. Clough, probate judge, to Louis F. Bartels, the lot in controversy, by virtue of a sale in pursuance of the territorial act of February 8, 1872, and previous legislation, dated October 29, 1872.

It was then admitted that the plaintiff is the heir of Louis F. Bartels, deceased.

Objectons were made and exceptions saved to the admission of deeds from Downing to Clough, and from Clough to Bartels.