that the value of such an estate for life has been ascertained by mortuary tables, and has been found to be $2,480.71, which he claims he is entitled to retain, and that the judgment in favor of the plaintiff in error should be the difference between that sum and $4,062.90, or the sum of $1,432.19, with interest and costs, instead of $2,998.80, with interest and costs, as claimed by the plaintiff in error. This question we think was determined by the Supreme Court in Vanderbilt v. Eidman, 196 U. S. 480, 25 Sup. Ct. 331, 49 L. Ed. 563. In that case the Circuit Court of Appeals for the Second Circuit certified certain questions to the Supreme Court concerning the taxation of certain interests provided for in the will of Cornelius Vanderbilt in favor of his son Alfred G. Vanderbilt. The will gave the residue of his estate to his executors, to be held in trust for the support, maintenance, and education of his son, and to accumulate any surplus income, and pay the accumulation to his son when he should arrive at the age of 21 years, and thereafter to pay him the net income of the estate until he should arrive at the age of 30 years, when he was to be put in full possession of one-half of the estate. The net income from the remainder was to be paid to him thereafter until he should arrive at the age of 35, when he was to receive the rest of the estate. At the time of the death of Cornelius Vanderbilt his son, Alfred G. Vanderbilt, was between 22 and 23 years of age. The period of the trust prior to the son Alfred arriving at the age of 21 years had passed, but there remained four separate and distinct units of trust in the residuary estate: (1) His right to receive the income from the entire residue until he became 30 years of age; (2) his right to receive one half of the principal of the residue upon becoming 30 years of age; (3) his right to receive the income from the other half of the residue until he became 35 years of age; and (4) his right to receive the principal of the other half of the residue upon reaching the age of 35 years. Were all these beneficial interests absolutely vested in possession or enjoyment prior to July 1, 1902? The Supreme Court stated the fundamental question as follows: "Whilst the questions, apparently, present distinct matters, yet underlying and involved in them all is the fundamental consideration whether the burden imposed by the War Revenue Act was confined to the interest of which Alfred G. Vanderbilt had the beneficial right of immediate enjoyment, or whether that burden also bore upon the right to the residue which Alfred G. Vanderbilt might possess or enjoy in the future, if he lived to the ages specified in the will, upon the theory that the right so to possess or enjoy in the future was technically vested." And answering this fundamental question, as well as the questions propounded, the court said: "That there was no authority under the act of 1898 for taxing the interest of Alfred G. Vanderbilt, given him by the residuary clause of the will, conditioned on his attaining the ages of 30 and 35 years, respectively.” In United States v. Fidelity Trust Co., 222 U. S. 158, 160, 32 Sup. Ct. 59, 60 (56 L. Ed. 137) the Supreme Court referred to this case of Vanderbilt v. Eidman with this observation: It "concerned a life estate in remainder, which, whether the remainder was technically vested or contingent, was not in possession or enjoyment." Applying that construction of the statute to the present case, we must hold that the life estates were contingent beneficial interests, and were not vested in possession or enjoyment prior to July 1, 1902, and that there was no authority to assess and collect a tax from the trustees of the estate of John Rosenfeld with respect to any right or interest of the legatees in that estate, except the present right to receive the income from the estate for the period of 11 years. The judgment is reversed, with directions to the court below to enter a judgment in favor of plaintiffs for $2,998.80, with interest and costs. (245 Fed. 651) PRODUCERS' OIL CO. v. UNITED STATES et al. No. 4603. RECEIVERS 16-CONFLICTING OIL LEASES RIGHT TO RELIEF. In a suit by the United States, on behalf of the Creek Nation, for the cancellation of oil and gas leases authorized by the state of Oklahoma and involving ownership of the bed of the Cimarron river, by stipulation of parties the lessees were permitted to continue operations, and a receiver was appointed to collect and hold the royalties for the benefit of the prevailing party. Intervener, as lessee of land of an Indian allottee on the river, claimed ownership of a portion of the bed in his lessor adversely to both parties. Held, that the receivership between the original parties was not adequate to protect intervener's rights pending the litigation, and that, while not entitled to an injunction to restrain operation by the state's lessees because of other facts, it was entitled to protection by bond, or by the impounding of the net proceeds of such operations on that portion of the river bed claimed by it. Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge. Suit in equity by the United States against lessees of the State of Oklahoma. The Producers' Oil Company, intervener, appeals from an order denying a preliminary injunction. Reversed. F. B. Dillard, of Tulsa, Okl., and Burdette Blue, of Bartlesville, Okl. (F. W. Dillard, of Tulsa, Okl., and A. L. Beaty, of New York City, on the brief), for appellant. W. P. McGinnis, Sp. Asst. U. S. Atty., and R. C. Allen, both of Muskogee, Okl., and W. A. Ledbetter, of Oklahoma City, Okl. (D. H. Linebaugh, U. S. Atty., and James C. Davis, Assistant to Creek National Attorney, both of Muskogee, Okl., on the brief), for appellees. Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge. HOOK, Circuit Judge. This is an appeal by the Producers' Oil Company from an order denying it a preliminary injunction. The branch of the case in which it was taken involves the title to the bed of the Cimarron river, in Creek county, Okl., adjacent to a tract of upland allotted to Mabel Dale, a member of the Creek Tribe of Indians, and the right to extract oil and gas therefrom. There are three sets of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes claimants: (1) The United States, on behalf of the Creek Nation; (2) the state of Oklahoma and Frank Brown, its lessee; and (3) the appellant, as lessee of Mabel Dale. The land in question is within the limits of the grant of August 11, 1852, by the United States to the Creek Nation of Indians in fulfillment of the treaty of February 14, 1833 (7 Stat. 417). The United States asserts that the Cimarron river is nonnavigable, that the land surveyed and allotted to Mabel Dale stopped at highwater mark, and that the adjacent river bed, not having been surveyed or embraced in the allotment, remained the property of the Creek Nation. It also claims that, even if the river were a navigable stream, still the bed thereof would have passed to the Creek Nation by the grant of 1852, and that it was not held in trust for the future state of Oklahoma. The state of Oklahoma and its lessee, Frank Brown, claim the river is navigable, and that upon the admission of the state into the Union it succeeded to the legal title to the bed, according to the familiar rule, and was exclusively authorized to lease it for the extraction of oil and gas. The appellant, the Producers' Oil Company, claims the river is nonnavigable, and that, though the survey lines of the Mabel Dale allotment meander the bank, her title, including that of appellant, her lessee, extends to the thread of the stream, and embraces the part of the bed in which Frank Brown is operating. The main suit was brought by the United States December 27, 1913, on behalf of the Creek Nation, to cancel various oil and gas leases of the river bed, executed under the authority of the state of Oklahoma, and to enjoin the lessees from operating under them. On the same day the state and its commissioners of the land office intervened in the suit and asserted title in the state and the validity of the leases. Three days later, pursuant to a stipulation between counsel for the United States and for the commissioners of the land office of the state, an order was entered appointing a committee of two persons representing the parties to the stipulation to superintend the operations under the state's leases, and also appointing a receiver to collect the royalties and to disburse them under the orders of the court to the party adjudged owner of the river bed. The leases provided for royalties of 29 per cent. of the production. The excess production over the royalties was to be retained by the state's lessees as their own property. About a year later, January 16, 1915, the appellant intervened for the protection of its rights under the lease from Mabel Dale. That lease provided for a royalty to her of one-eighth of the production. The appellant applied for a preliminary injunction restraining the state's lessees from operating in the river bed adjacent to her allotment. The application was denied, and this appeal followed. The briefs and arguments have taken a wide range, but we think that at the present stage of the litigation our consideration should be more limited. Aside from the contention of the United States that it should prevail in either case, the rights of the parties depend upon whether the Cimarron river is navigable or not. There is a common knowledge that some of our rivers are navigable, and courts may take judicial notice thereof; but the navigability of many others, being less certain, is a question of fact requiring proof. Harrison v. Fite, 148 Fed. 781, 78 C. C. A. 447. The Cimarron river is of the latter class, and we should not determine its character as to navigability upon the showing now in the record. We think, however, that the appellant should be protected while the case is pending below. There is some doubt that the existing receivership is available to it. The order appointing a committee to superintend the operations of the state's lessees and appointing the receiver was at the instance of appellant's adversaries, and the terms were those of a stipulation to which it was not a party. Part of the language of the order is broad enough to embrace any claimant, though not then a party to the suit; but still there would be some reason for claiming that the general terms should be restrained to the particular intent, which was for the benefit of those who stipulated. But, if the receivership is available to appellant, the terms and conditions of it are insufficient for its protection. The attitude of the United States and the state is that of proprietors of land, whose interest in underlying oil and gas is generally expressed in terms of rentals or royalties. They were not, like the appellant, engaged in the business of drilling wells and extracting oil and gas; and the mere impounding of the royalties during the pendency of the suit, which they stipulated for themselves, would not be equitable for the latter. If appellant is right as to its title, and much at least may be said in its favor, it is entitled to all the oil and gas that can be drawn from the river bed and to such adequate protection during the litigation as may be practicable. If the parties now operating there are unable or unwilling to give a bond for such purpose, a receiver should be appointed, with authority and direction to offset the wells on the shore and to pay all proceeds of the product into court, less the reasonable allowed costs and expenses of conducting the work. Strictly speaking, the trial court was right in denying appellant's application for a temporary injunction. Appellant had wells on the upland near the line, and the injunction asked would have given it the fruits of title, regardless of the result of the suit. The oil and gas under the river bed would have been drained through the upland wells, without a definite way of determining appellant's liability, if it failed at final hearing. But in a case so exceptionally circumstanced as this we think the court should have imposed conditions upon the denial of a temporary injunction, or given the other temporary protection above mentioned. To clear the situation for a renewed consideration of this matter. the order denying a temporary injunction will be reversed. 158 C.C.A.-6 (245 Fed. 654) STETSON HOSPITAL OF PHILADELPHIA v. SNOOK-ROENTGEN MFG. CO. (Circuit Court of Appeals, Third Circuit. April 26, 1917. Rehearing Denied September 1, 1917.) No. 2198. 1. PATENTS 328-VALIDITY AND INFRINGEMENT X-RAY MACHINE. The Snook patent, No. 954,056, for an X-Ray machine, covers an invention of a novel character and a high order of merit, in which, by discarding the use of induction coils and utilizing an alternating current, the inventor greatly increased the intensity of the rays and prevented inverse discharge through the tube, aduling largely to the utility of the machine; also held infringed. 2. PATENTS 312(3)-CONSTRUCTION-PROCEEDINGS IN PATENT OFFICE. A discussion of questions in the Patent Office in relation to a pending application, as bearing on the construction of the patent later issued therein, must be read in the light of the grounds of the discussion. To detach isolated statements from their setting, and ignore the occasion and question that caused their use, generally leads to a mistake. 3. PATENTS 155-SUIT FOR INFRINGEMENT-COSTS-EFFECT OF DISCLAIMER. A disclaimer by a patentee, filed after commencement of a suit for infringement, of a statement in the specification which has no bearing on the issues litigated, will not prevent the recovery of customary costs by complainant, if successful. Appeal from the District Court of the United States for the Eastern District of Pennsylvania. Suit in equity by the Snook-Roentgen Manufacturing Company against the Stetson Hospital of Philadelphia. Decree for complainant, and defendant appeals. Affirmed. For opinion below, see 237 Fed. 204. O. Ellery Edwards, Jr., of New York City, for appellant. Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges. BUFFINGTON, Circuit Judge. In this case the Snook-Roentgen Manufacturing Company, assignees of patent No. 954,056, granted April 5, 1910, to Homer Clyde Snook, for an X-ray system, filed a bill against the Stetson Hospital of Philadelphia, charging infringement of claims 1, 2, 3, 5, 9, 14, 19, 23, 24, 25, 26, 27, and 33 of said patent. On final hearing the court below in an opinion reported at 237 Fed. 204, held the patent valid and said claims infringed. From the decree so holding, defendant appealed to this court. The real defendant in the case is the manufacturer of defendant's machine. This patent concerns X-ray machines, and as the opinion referred to describes such machines and the general nature of the controversy here involved, we avoid needless repetition by reference thereto. Confining ourselves solely to the questions involved in this controversy, we may say that two of the most important factors in X-ray machines are here involved, viz.: First, an increase in the intensity and penetrating powers of the X-ray produced by the machine; and, second, the decreasing or eliminating of what are called inverse currents in such machines. [1] Prior to the patent in suit, the X-ray machine in common use was called an induction machine, and its capacity, as measured by milli |