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Andres v. Lee, 21 N. C. 319; Bates, Fed. Eq. Proc. $ 327, and authorities cited.

But the trial judge seems to put his conclusion on another ground, unnoticed by counsel in the argument or brief,—unfair competition in trade. What is above said applies to this point in the opinion. Defendants seem to be acting in good faith, and allege their ability to respond in damages, which is not questioned. Louis Bouchat believes he has made an improvement in coat pads entitling him to a patent. He has obtained letters patent therefor. This cost something, and a company has been organized to manufacture coat pads under these letters patent. Is this unfair competition in trade? If so, no improvement in a patented article could ever be made by one versed in the art. Louis Bouchat had worked at the trade of making coat pads, became familiar with the art, experienced in the business, and knew the demands of the trade. True, this was when he was a stockholder, owner of one share, and an employé of a corporation using the Goldman patent, when he probably saw the defects in the coat pads manufactured under that patent, and devised what he conceived to be an improvement in coat pads. He applied for and obtained letters patent for such improvement. Is the fact he was such stockholder and employé of a corporation using a patent to deprive him of the benefit of a supposed inventive genius? If so, no one would probably ever make any improvements on patented articles. The purposes of the patent laws would fail. Persons not familiar with the manufacture of patented articles do not and cannot make improvements. It must be done by an artisan. This is reason, and ratio legis

vitæ est is as true now as when first written in Coke on Littleton. To entertain a suit for infringement of a patent, the plaintiff must not only allege, but prove, he is the inventor or owner of the patent, and that it has been infringed. Bates, Fed. Eq. Proc. § 331. The allegations are made; they are denied. The relief depends on the proof.

It seems then the preliminary injunction was improvidently granted by the circuit court, the defendants below being able to respond in damages, there being nọ threatened irreparable injury, no estoppel, no sufficient acquiescence, and no unfair competition in trade Defendants should have been required to give bond for an accounting, and the temporary injunction refused.

There is error. Reversed.

1113 Fed. 631.)

LARNED V. JENKINS.
(Circuit Court of Appeals, Eighth Circuit. March 3, 1902.)

No. 1,411.
1. MINING CLAIM-LOCATOR ABANDONS RIGHTS BEYOND LOCATION.

One who discovers and locates a lode mining claim under the act of 1866 thereby renounces and abandons all rights and privileges to follow his lode on its course beyond the exterior lines of his patented claim, when he locates it upon the surface of the ground, enters it, and ac

cepts a patent for it under the law. 2. SAME-LOCATOR CANNOT Follow VEIN BEYOND His BOUNDARIES ON ITS

STRIKE.

The act of July 26, 1866, does not grant to the patentee of a lode mining claim the right to follow on its strike his vein, with its dips, angles, and variations, beyond the boundaries of his location. It permits him to follow it beyond those boundaries on its dip or descending course

only. 3. PATENT-Town Site--EXCEPTION OF MINE.

It is mines known to exist at the time a town-site patent is issued, and those only, that are excepted from its grant by section 2392 of the Re

vised Statutes. $ Town Site-DEED OF City AUTHORITIES IMPERVIOUS TO COLLATERAL AT:

TACK.

The deed of the city authorities authorized to convey lots in a town site is presumptively valid, and it cannot be collaterally assailed in an action at law for a failure of the authorities to require the preliminaries

or perform the requirements antecedent to its execution. 5. EstOPPEL-ADVERSE CLAIM CREATES NONE AGAINST EJECTMENT BASED ON

PRIOR TITLE.

An action of ejectment based upon a patent issued prior to the initiation by the defendant of a mining claim for which he has applied for a patent is not inconsistent with a claim adverse to that application, under section 2320 of the Revised Statutes, and such adverse claim does not

estop the plaintiff from maintaining his action, (Syllabus by the Court.)

In Error to the Circuit Court of the United States for the District of Colorado.

See 109 Fed. 100.

This is an action of ejectment. The court below rendered a judgment for the plaintiff on a demurrer to the answer of the defendant. The writ of error challenges this judgment. The property in controversy is an irregular tract of land adjoining the Cook lode mining claim on the north, and it has a length of 357 feet on one side and 283 feet on the other, and a width of 25 feet on one end and 101 feet on the other, measured upon the diagonal lines which form its ends. This tract of land was patented to the city of Central on July 10, 1876, as a part of its town site, was subsequently vested in its successor, the city of Blackhawk, and that city on September 9, 1897, conveyed it to the plaintiff, John C. Jenkins. He set forth this chain of title in his complaint, alleged that the defendant had wrongfully entered upon the premises; that this action was brought in support of an adverse claim filed in the land office against the entry of this land by the defendant, William Larned; that he had disbursed $30 for plats, abstracts, and copies of papers, and $30 for a counsel fee, in preparing his adverse claim; and he demanded judgment for the possession of the premises, $1,000 damages, and $50 expended in support of the adverse claim. The answer of the defendant is voluminous, but, so far as it relates to any errors assigned in the action of the court below, this is the state of facts which it presents: The patent to the town site and the conveyance under which the plaintiff claims were made as he alleges. On October 8, 1870, a patent was issued to the Cook lode, which grants a territory 790 feet in length by 50 feet in width, adjoining the tract here in dispute on the south. The Cook rein for the distance of about 120 feet deflects on its strike from the north side line of the Cook mining claim into the tract of land here in controversy, but the deflection of the apex from the north line of the Cook claim does not exceed 7 or 8 feet, and the dip of the vein is at all points slightly to the south, so that where it is deflected from the Cook claim it enters it on its dip 15 or 20 feet below the surface of the ground. Six shafts were sunk, which exposed this vein within the patented territory of the Cook mining claim, and there was a well-known mine thereon before the patent of the disputed territory to the city of Central was issued. This disputed territory was mineral land of great value, and known to be of great value, and there was in fact a mine of gold-bearing quartz, whose topor apex was partly within and partly without this tract, when the patent to the city of Central was issued. In the year 1871 the patentee of the Cook lode mining claim conveyed it to the defendant. On June 7, 1897, one William Rogers discovered a vein of gold on the tract of land in controversy, located a mining claim thereon, called the “Cook No. 2 Lode," applied to the city of Blackhawk to be allowed to purchase the land before the deed therefor was issued to the plaintiff, and on July 14, 1897, conveyed this mining claim to the defendant. The defendant thus holds a deed from the grantee of the Cook lode mining claim, patented in 1870, and another from the locator of the Cook No. 2 lode mining claim, which was located in June, 1897. The court below held that the town-site patent and the deed under it to the plaintiff inust prevail over the title which the defendant pleaded, and this is the ruling which is challenged as error.

Willard Teller and Harper M. Orahood, for plaintiff in error.
Jacob Fillius and R. S. Morrison, for defendant in error.
Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

The title of the defendant in error Jenkins consists of a patent to the city of Central, and a regular conveyance from its successor, the city of Blackhawk, to himself. On its face this title is regular and sufficient. Counsel for the plaintiff in error assail it on the grounds (1) that the patent to the city of Central was void and ineffectual to convey this property, because was reserved from conveyance as a part of a town site, under sections 2386, 2392, Rev. St.; and (2) because the conveyance from the city of Blackhawk was made to Jenkins while Rogers, the grantor of the plaintiff in error, was in possession of the property, and entitled to the deed from the city.

The provisions of sections 2386 and 2392 relevant to this issue are that “where mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to town lots to be acquired shall be subject to such recognized possession and the necessary use thereof," and that "no title shall be acquired under the foregoing provisions of this chapter to any mine of gold, silver, cinnabar or copper; or to any valid mining claim or possession held under existing laws.'

Prior to the issue of the patent to the town site the grantor of the plaintiff in error had located his claim to the Cook lode upon a tract of land 790 feet long and 50 feet wide, had marked the exterior boundaries of this claim, had entered it and received a patent for it. These acts constituted a notice to the government and to the public that he was the owner of all the exclusive rights and privileges in this tract of land, and in the lode or vein therein, granted by the act of July 26, 1866, under which he located and entered the land. But it was also a notice, and a legal notice, to the government and to the public that he renounced and abandoned all other rights and privileges pertaining to the discovery of his lode which he did not secure by his patent. When he had discovered his vein, he had the right to locate it, in conformity with the local laws, customs, and rules of miners, upon that portion of this vein which is within the tract conveyed to the city of Central. Until he made his location he was entitled to follow the course of the vein. He chose to locate his claim and to take his patent upon a tract which excluded that portion of the lode within the territory now in dispute. His grantee now asks to renounce this location, and the limitations of the law and of the patent upon which it is based, and to follow the lode wherever it leads, as the discoverer might have done before he located and marked the boundaries of his claim. The action of his grantor has forever estopped him from pursuing this course. A discoverer of a vein cannot be permitted to locate his claim, present his diagram, and obtain a grant for the lode and the land he claims, and then disregard the limitations of the grant and follow the lode without his location wherever it happens to lead. One who discovers and locates a lode mining claim under the act of 1866 thereby renounces and abandons all rights and privileges to follow his lode on its course beyond the exterior lines of his patented claim, when he locates it upon the surface of the ground, enters it, and accepts a patent for it under the law. Mining Co. v. Old, 79 Fed. 598, 606, 25 C. C. A. 116, 124, 49 U. S. App. 201, 213, 214; Wolfey v. Mining Co., 4 Colo. 112, 116; Mining Co. v. Rogers, 8 Colo. 34, 38, 5 Pac. 661.

The position of counsel for plaintiff in error, that because the act of 1866 permits the discoverer of a lode to receive a patent therefor, "granting such mine together with the right to follow such vein or lode with its dips, angles and variations to any depth although it may enter the land adjoining,” the locator has the right to follow the lode on its strike beyond the boundaries of his location, is not tenable. It is only in its descending course that he may follow its dips, angles, and variations. He cannot follow these dips, angles, and variations “to any depth" on the strike of the vein, or on its ascending course. The words “to any depth,” as well as the other provisions of the statute which require the locator to file a diagram of the tract he claims, and permit him to receive a patent of this limited area, demonstrate the fact that it was not the intention of congress to grant to the patentee of a lode mining claim under the act of 1866 the right to follow it on its strike beyond the boundaries of the location he selects and secures. The act of July 26, 1866, does not grant to the patentee of a lode mining claim the right to follow his vein on its strike, with its dips, angles and variations, beyond the boundaries of his location. It permits him to follow it beyond those boundaries on its dip or descending course only. The result is that Lyman Cook, the patentee of the Cook lode, derived no title or interest in the land here in dispute by his patent, and the plaintiff in error has taken none through Cook's deed.

It is insisted, however, that, if this be true, the patent to the city of Central conveyed no title to this property, because it was reserved from conveyance by the patent as a mine by the sections of the statute to which reference has been made. But it is only mines of gold, silver, cinnabar, or copper which are known to exist at the time of the issue of the town-site patent and mining claims and possessions then lawfully existing that are reserved from patent by section 2392. Davis v. Wiebbold, 139 U. S. 507, 518, 526, 527, 11 Sup. Ct. 628, 35 L. Ed. 238; Dower v. Richards, 151 U. S. 658, 663, 14 Sup. Ct. 452, 38 L. Ed. 305; Smith v. Hill, 89 Cal. 122, 125, 26 Pac. 644; Lindl. Mines, § 175B, p. 216. There is no allegation in the answer in this case that there was any known mine upon the tract here in dispute at the time when the patent to the city of Central was issued. On the other hand, the fact that Lyman Cook, the discoverer of the Cook lode, renounced all claim to this property, and had excluded it from his location and patent, before the grant to the city was made, and the fact that there was no mining claim or possession of this disputed tract in existence at the time the town-site patent was issued, clearly indicate that no mine was then known to exist upon it. The argument of counsel that, because there was a discovery and possession of the Cook lode at places within the limits of the Cook location, that lode and mine were known to exist outside of that location and in this disputed territory, is not persuasive. Indeed, the diagram of his location which Cook made, and the patent which he received, conclusively show that Cook's lode and mine were not known or believed to pass without the north line of the tract he patented, on its strike into this land which he abandoned. Nor was there any possession of this mineral vein within the tract here in controversy which could limit the grant of the patent under the provisions of section 2386. It is only a possession of mineral veins recognized by local authorities, and only to the extent so possessed and recognized, that the title to town lots is subject to under that section. And the answer, the location and patent of Cook, conclusively show that the extent of the possession of this vein recognized by local authorities and by Cook himself was the possession of it within the limits of his patented claim. There was neither possession, nor recognition of possession of it without those limits. There was therefore no exception or limitation of the grant of this land under the patent of the town site by any of the provisions of sections 2386 and 2392.

But it is said that even if the patent conveyed the title to this property to the city of Central and its successor, the city of Blackhawk, the conveyance of the latter to the defendant in error was void, because the property was not appraised and sold at public auction, as required by sections 4339 and 4342 of Mills' Annotated Statutes of Colorado, and because the grantor of the plaintiff in error, William Rogers, who took possession on June 7, 1897, and applied for a deed to himself, was entitled to the conveyance from the city of Blackhawk, while the defendant in error had no right to it. The power and duty of the city of Blackhawk to dispose of this land, however, are not governed by the sections of the statute to which reference has been made, which were first enacted in 1881. They were controlled, on the other hand,

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