upon the use of a certain attachment to a Ros | the exclusive right to make, use and vend a new coe lubricator, as outlined in the accompanying and useful improvement in lubricators, alleged figure. to have been invented by him for the period of seventeen years. It is further charged that, in March, 1873, the defendant surrendered his said patent, and on the 18th of that month obtained a re-issue upon an amended specification, for the term of seventeen years, from November 19, 1872. And the bill further charges that the alleged invention, patented to the defendant by the said re-issued letters, is substantially the same invention made by the complainant in the month of May, 1870, and patented to him on the 14th of February, 1871, as before mentioned, and that the re-issued letters patent granted to the defendant are a direct interference with the prior letters patent granted, as aforesaid, to the complainant. The answer of the defendant does not deny the grant of the several patents as charged in the bill, at the several dates mentioned, nor does it directly deny that the defendant's re-issued letters patent are an interference with the prior patent granted to the complainant on the 14th of February, 1871. But it avers that in the Patent Office, in the year 1872, an interference was declared between the complainant and the respondent, in order to try the question of priority of invention, that testimony was taken, and that the Commissioner of Patents decided that the respondent was the first and original inventor of the invention described in the defendant's patent, and granted him a patent therefor, which was afterwards re-issued. This averment is unsupported by proof. In view of such pleadings, it is hardly necessary to inquire whether there is an interference. The answer does not deny it. It rather im The case is further stated by the court. Messrs. M. A. Wheaton and Robt. Ash, for pliedly admits it. And if it did not, a comparappellant. Mr. A. H. Evans, for appellee. Mr. Justice Strong delivered the opinion of the court: This bill is founded upon the Act of Congress of July 8, 1870, 16 Stat. at L.,207, ch. 230, sec. 58, re-enacted in the Revised Statutes, section 4918. That section enacted, "That, whenever there shall be interfering patents, any person in terested in any one of such interfering patents, or in the working of the invention claimed under either of such patents, may have relief against the interfering patentee, and all parties interested under him, by suit in equity against the owners of the interfering patent; and the court having cognizance thereof (as in the Act provided), on notice to adverse parties, and other due proceedings had according to the course of equity, may adjudge and declare either of the patents void in whole or in part, or inoperative or invalid in any particular part of the United States, according to the interest of the parties in the patent or the invention patented." The complainant charges that, on the 14th day of February, 1871, he obtained a patent for a new and useful improvement in lubricators, fully described in the letters patent for the term of seventeen years from and after the date of said letters, and that he is the sole and exclusive owner thereof. He charges further, that letters patent were issued to William T. Garratt, the defendant, on the 19th day of November, 1872, purporting to secure to him ison of the complainant's and the defendant's specifications, including the models and drawings, precludes all doubt that both patents are for the same invention, and that the arrangement of devices in each produces the same result in substantially the same way. All that remains, therefore, is to determine whether Seibert was the first and original inventor of the invention, or whether the invention was first made by Garratt, the defendant. Seibert's patent, as we have stated, was granted on the 14th day of February, 1871, for a new and useful improvement in lubricators. He had previously, in 1869, Sep. 14, obtained a patent for a lubricator, in which hydrostatic pressure in forcing the lubricant from its cup or reservoir, was found to act beneficially, though the patent did not claim that specifically, and the inventor seems not to have been aware at that time of its value. The model for this patent Seibert procured to be made by Garratt. Subsequently, having discovered its value in May, 1870, he caused to be made a new arrangement, by which the lubricant reservoir was made to stand vertically, instead of horizontally, as in his first invention, and hydrostatic pressure was applied near its base at the bottom of the lubricant. For this arrangement, he took out his patent of February, 1871. The princi ple was manifestly the same as that revealed in the earlier patent, though the arrangement for its operation was different. In the one, the lubricant and the condensed water were separated by a piston; in the other, by the difference of their specific gravities. It is not, however, very material to determine that Seibert's invention was made before May, 1870; for we are of opinion that even if it was not made before Febru 1. When public lands have been open to private acquisition, a person who complies with all the requisites to entitle him to a patent in a particular lot, is to be regarded as the equitable owner thereof, and the land is no longer open to location. and any subsequent grant of the same land to an- Argued Nov. 19, 20, 1878. Decided Dec. 2, 1878. TN ERROR to the Circuit Court of the United The case is fully stated by the court. the former writ of error is found in 84 U. S., The report of the decision in the case upon 32, XXI., 566. Mr. Horatio C. Burchard, for plaintiff in error. Mr. S. Corning Judd, for defendants in error. Mr. Justice Bradley delivered the opinion of the court: ary, 1871, there is not sufficient evidence in the case to show it was anticipated by Garratt, or by anyone. Garratt was a brass founder. In 1869, he had the agency for making the Roscoe oilers or lubricators, then covered by a patent. It is plain those lubricators were designed for the use of tallow, and tallow alone. They were arranged to admit steam into the reservoir containing the lubricant, whereby it came in contact with the surface of the tallow, melted it and caused it to mix with the steam and pass out in a volatile condition into the steam-chest. They did not work well. The steam, acting only on the surface of hard tallow, would not melt and take up enough to lubricate the engine; and Garratt, late in the fall of 1869, after Seibert's first patent was granted, as he and some other witnesses testify, undertook to remedy the defect. He put on a Roscoe lubricator, what he calls a condensing pipe, with a regulating cock. It connected the bottom of the res- This case was before us in December Term, ervoir with the steam-pipe of the engine, at a 1872. It comes before us now on a different point above the top of the reservoir. Notwith-state of facts; the original patent to Giles Egerstanding what he testifies, it is plain that this pipe was intended only to heat and melt the tallow. In view of the difficulty it was designed to remedy, and of the utter uselessness of a condensing pipe applied to the base of hard tallow, this cannot be doubted. The tallow needed heat, not pressure; not a column of water; and the evidence is very satisfactory that the pipe put on was a melting pipe, and used as such alone. It was soon shortened from six feet to two. Why was that done, if it was a condensing pipe? If it was a melting pipe, it is easy to see why its length was reduced; and the proof is, that it never was used for hydrostatic press ure. The cocks were kept wide open in its use, except when the reservoir was to be cleaned out or filled. Such is the testimony of the engineers who had it in charge. We think, also, the weight of the evidence is that the application of the melting pipe was not Garratt's device, even if it involved invention. It seems rather to have been suggested by Watson. Without going minutely over the evidence, we may notice that after Garratt caused the pipe to be put on the Roscoe lubricator, and after he had made Seibert's first model, he obtained drawings of the Seibert device, and had a model made of it for himself. Not until after this was done did he apply for a patent. It is difficult to believe, in view of this evidence, that he did not obtain the idea of his alleged invention from the prior invention and patent of Seibert. There is nothing, then, to rebut the presumption arising from his patent that Seibert was the first and original inventor. It follows that the decree of the Circuit Court was right. Decree affirmed. JACOB WIRTH, Piff. in Err., V. CALVIN BRANSON ET AL. ton, which was not produced on the former trial, being produced on the trial which has taken place since our decision, and purports to be for the southeast quarter of section 18, instead of the northeast quarter in controversy. The question is, whether this fact changes the rights of the parties. A statement of the case, however, is necessary, in order to show the precise questions which are now raised by the record. The action is ejectment, brought by the plaintiff in error to recover a quarter section of land in Fulton County, Illinois, namely: the northeast quarter of section 18, township 4 north, range 2 east, from the 4th principal meridian. On the trial, the plaintiff produced a regular patent for the lot, issued by the United States to one Edward F. Leonard, dated February 20, 1868; and a conveyance from Leonard to himself. The defendants then offered in evidence a duly exemplified copy of a military land-warrant, No.13.598, bearing date December 3, 1817, issued to one Giles Egerton, a sergeant in the 26th Regiment United States Infantry, and purporting to be in pursuance of the 2d section of the Act of May 6,1812, and certifying that said Egerton was entitled to 160 acres of land, to be located agreeably to said Act on any unlocated parts of the six millions of acres appropriated for that purpose, it being conceded that the lot in question is part of said military reservation. They then proved by an exemplified record of the General Land Office at Washington, that the aforesaid land-warrant was located according to law on the 10th day of January, 1818, by Giles Egerton, on the lot in question. The defendants then gave in evidence an exemplified copy from the records of the Land Office of a patent from the United States to Giles Egerton, dated January 10, 1818, reciting that he had deposited the said land warrant, No. 13,598, in the Land Office, and granting to him the said lot. On the margin of this certified copy of the patent was written a memorandum, without date, as follows: "This patent was issued for the S. E. instead of the N. E. as recorded; sent a certificate of that fact to E. B. Clemson, at Lebanon, Ill's, see his letter of 19th May, 1826." The plaintiff insisted that this memorandum should be read with the record of the patent. In accordance with our decision in the former case, Branson v. Wirth, 17 Wall., 43 [84 U. S., XXI., 570], the court refused to allow it to be read. The defendants then offered in evidence a deed from Giles Egerton to Thomas Hart, dated July 29th, 1819, for the southeast quarter of section 18, reciting that the same was granted to said Giles in consideration of his military services, as would appear by a patent dated January 10, 1818. The defendants then gave in evidence an exemplified copy of a patent from the United States to one James Durney for the said southeast quarter of section 18, dated January 7, 1818, three days prior to the date of Egerton's patent, referring to land-warrant No. 5144 as the basis of the grant. The defendants then gave in evidence a tax title for the lot in question, being a deed from the sheriff of Fulton County, Illinois, to one Timothy Gridley, dated November 14, 1843, under a judgment of June Term, 1840, for the taxes for the year 1839: and also several mesne conveyances from the said Gridley to the defendants in February, 1849; and they proved that they and their grantors had occupied, cultivated and had full and undisturbed possession of the land ever since November, 1843, paying the taxes thereon. The plaintiff objected to the reception of this evidence relating to the tax title and possession. In rebuttal of this defense the plaintiff gave in evidence a deed for the southeast quarter of section 18 from Thomas Hart to Samuel F. Hunt, dated May 12, 1824; also a deed from Hunt to one Eli B. Clemson, dated April 7, 1825; and from Clemson to one John Shaw, dated October 20, 1829; also an Act of Congress, approved March 3, 1827, entitled “An Act for the Relief of the Legal Representatives of Giles Egerton," by which it was enacted that the legal representatives of Giles Egerton, late a sergeant, etc., be authorized to enter with the Register of the proper land-office, any unappropriated quarter section of land in the tract reserved, etc., in lieu of the quarter patented to said Giles on the 10th of January, 1818, which had been previously patented to James Durney. The plaintiff further proved that John Shaw, assignee of Giles Egerton, on the 6th of April, 1838, entered another quarter section in pursuance of this Act. The plaintiff then gave in evidence the original patent, dated January 10, 1818, given to Giles Egerton for the southeast quarter of section 18, purporting to be based on the warrant in his favor, numbered 13,598. All this rebutting evidence of the plaintiff was objected to by the defendants, but was received by the court. Upon this evidence, each party asked the court for instructions; and the instructions given were: 1. That the defendants had proved that the land in controversy was granted by the United States to Giles Egerton on the 10th of January, 1818, and that Egerton had conveyed it to Thomas Hart, which constituted an outstanding title that defeated the plaintiff's right of recovery; 2. That defendants had shown that on the 10th of January, 1818, the landwarrant of Giles Egerton was duly located on and upon the land in controversy, which loca tion was not shown to be vacated or set aside, and therefore said land was not subject to entry by or grant to Leonard in 1868; and a verdict was thereupon given for the defendants. To these instructions the plaintiff excepted; and whether they were correct is the question now before the court. If either of these instructions was correct in point of law, the judgment must be affirmed, for each was based upon undisputed facts, and if either was correct, the defendants had a complete defense. We are satisfied that the second instruction, at least, correctly expressed the law of the case, and renders the production of the original patent to Egerton entirely immaterial. The land in question was shown to have been located in his favor in due form, under a regular military land-warrant, and no attempt was made to show that this location was ever vacated or set aside. While this location was in force, no other could lawfully be made on the same land. A subsequent location, though followed by a patent, would be void. Everything was done which was required to be done to entitle Egerton to a patent for the land. Being for military bounty, no price was payable therefor. The land became segregated from the public domain, and subject to private ownership, and all the incidents and liabilities thereof. The rule is well settled, by a long course of decisions, that when public lands have been surveyed and placed in the market or otherwise opened to private acquisition, a person who complies with all the requisites necessary to entitle him to a patent in a particular lot or tract is to be regarded as the equitable owner thereof, and the land is no longer open to location. The public faith has become pledged to him, and any subsequent grant of the same land to another party is void, unless the first location or entry be vacated and set aside. This was laid down as a principle in the case of Lytle v. Arkansas, 9 How.,314, and has ever since been adhered to. See Stark v. Starrs, 6 Wall., 402 [73 U. S., XVIII., 925]. Subsequent cases which have seemed to be in conflict with these have been distinguished from them by the fact that something remained to be done by the claimant to entitle him to a patent; such as the payment of the price, the payment of the fees of surveying, or the like. The proper distinctions on the subject are so fully stated in the cases of Stark v. Starrs [supra]; Frisbie v. Whitney,9 Wall.,187 [76 U. S., XIX.,668]: Yosemite Valley Case, 15 Wall., 77 [82 U. S., XXI., 82]; R. Co. v. McShane, 22 Wall., 444 [89 U. S., XXII., 747]; and Shepley v. Cowan, 91 U. S., 330 [XXIII., 424], that it would be supererogation to go over the subject again. But it is said that Giles Egerton and his grantees and all other persons are estopped from any claim under his location of the northeast quarter of section 18, by his accepting a patent for the southeast quarter; and by the further fact, that his grantee, finding the southeast quarter already granted to another party, namely: to James Durney, applied to Congress for leave to make and actually made another location in lieu thereof. This question of estoppel was fully considered by us when the case was formerly here; and the principles which were then laid down are equally decisive of the case as it now stands. The original patent to Egerton had not then been exhibited in evidence, it is true; but we do not see that the case is materially altered by its production. The difficulty of applying the doctrine of estoppel arises from the fact that there is no privity between the defendants and the parties who procured the Act of Congress referred to. The defendants rely and have a right to rely on the fact that the lot in question was located in due form of law, and that it thereby became exempt from further location until the first loca tion should be set aside. The fact that a clerical error was made in the patent issued to Egerton; that his grantees, instead of claiming the northeast quarter, as they might have done, claimed the southeast quarter, which had been previously granted to another person; and that they solicited the privilege of locating another lot in lieu thereof, are all matters with which the defendants have nothing to do. Congress might have given to those parties a dozen lots without affecting the defendants, unless the latter were in some way bound by their acts. We are unable to see how they were or should be bound thereby. They do not claim under those parties, and have no privity with them whatever. As, however, the question of estoppel was fully discussed in the previous judgment, it is unnecessary to enlarge upon the subject. The judgment of the Circuit Court is affirmed. Cited-101 U. S., 261; 35 Ohio St., 232. THE COUNTY OF SCHUYLER, IN THE STATE OF MISSOURI, Piff. in Err., v. JOSEPH T. THOMAS. (See S. C., 8 Otto, 169-176.) Missouri Constitution-county bonds. 1. The Missouri Constitution of 1865, which forbids any county, city or town to become a stockholder of or to loan its credit to any corporation without the assent of two thirds of its qualified voters, was prospective only in its effect, and did not take away any right already given by statute. 2. Where a county was authorized to become a stockholder of a corporation by virtue of its original charter passed before the adoption of such Constitution, no submission of the question to a popular vote was necessary. [No. 62.] Argued Nov. 6, 7, 1878. Decided Dec. 2, 1878. N ERROR to the Circuit Court of the United 1871 by the County of Schuyler, in the State of Missouri. He was an honest purchaser of the bonds, without knowledge of vice or defect in their issue. The following is a copy of one of the bonds: "Know all men, by these presents, that the County of Schuyler, in the State of Missouri, acknowledges itself indebted to the Missouri, Iowa and Nebraska Railway Company, a corporation existing under and by virtue of the laws of the States of Missouri and Iowa, formed by consolidation of the Alexandria and Nebraska City Railroad Company (formerly Alexandria and Bloomfield Railroad Company), of the State of Missouri, and the Iowa Southern Railway Company, of the State of Iowa, in the sum of $1,000, which sum the said County hereby promises to pay to the said Missouri, Iowa and Nebraska Railway Company, or bearer, at the Farmers' Loan and Trust Company, in New York, on the first day of September, A. D. 1891, together with interest thereon from the 31st day of December, 1871, at the rate of eight per cent. per annum, which interest shall be payable annually in the City of New York, on the 31st day of December in each year, as the same shall become due, on the presentation of the coupons hereto annexed. This bond being issued under and pursuant to orders of the County Court of said Schuyler County, for subscription to the stock of the Missouri, Iowa and Nebraska Railway Company, as authorized by an Act of the General Assembly of the State of Missouri, entitled 'An Act to Incorporate the Alexandria and Bloomfield Railroad Company,' approved February 9, 1857. In testimony whereof, the said County of Schuyler has executed this bond by the presiding Justice of the County Court of said County, under the order of said court, signing his name hereto, and the clerk of said court, under the order thereof, attesting the same and affixing thereto the seal of said court. This done at the Town of Lancaster, in the County of Schuyler, in the State of Missouri, this first day of September, A. D. 1871. WILLIAM CASPER. Presiding Justice of the County Court of Schuyler County, Missouri. D. T. TRUITT, Clerk of the County Court of Schuyler County, Missouri. Attest: SEAL SCHUYLER COUNTY COURT, MISSOURI. Countersigned and delivered this 17th day of May, 1872. M. BAKER, Trustee." The legality of the bonds is denied. 1. It is contended by the County of Schuyler that there was no authority in the company, as incorporated in 1857, to locate its track through or in the County of Schuyler; that as the au IN Rates for the Eastern District of Missouri. thority to subscribe and issue bonds depended The case is fully stated by the court. Messrs. Geo. W. McCrary and Edward Higbie, for plaintiff in error. Messrs. A. J. Baker and F. T. Hughes, for defendant in error. Mr. Justice Hunt delivered the opinion of the court: Thomas the plaintiff below, recovered a judgment for the amount of certain bonds and coupons held by him, which were issued in the year on the power to locate, there was no authority to subscribe for stock or issue the bonds of the County. The Act to incorporate the Alexandria and Bloomfield Railroad Company, approved Feb. ruary 9, 1857, contained the following provisions: "It shall be lawful for the county court of any county, in which any part of the route of said railroad may be, to subscribe to the stock of said company, *** and issue the bonds of said county to raise funds to pay the stock thus subscribed." Sec. 8. Said company shall have full power to survey, locate and construct a railroad from the City of Alexandria, in the County of Clark, in the direction of Bloomfield in the State of Iowa, to such point on the northern boundary line of the State of Missouri as shall be agreed upon by said Company, and a company authorized on the part of the State of Iowa, to construct a railroad to intersect the road authorized to be constructed by the provisions of this Act, at the most practicable point on said state line, * and may select such route as may be deemed most advantageous.' Bloomfield, lies in a northwesterly direction from Alexandria, as we learn by the map in evidence. * Schuyler County is also in a direction from Alexandria northwesterly as to a portion of it, and more nearly northerly as to another portion of it. As a matter of fact, an inspection of the maps furnishes evidence (and they make a part of the record on which our judgment is to be formed) that there is authority to include a portion of Schuyler County in the description of a course northwesterly from Alexandria and in the direction of Bloomfield. These maps and the geography of the State inform us that this road could be so located as to reach the immediate vicinity of Bloomfield, with but little less variation from a direct course than the line through Luray and Upton, which was first adopted. But a straight line is not required by the statute, nor a line having the fewest curves or angles, nor is the point of crossing the state line fixed or prescribed. The most practicable and advantageous line is to be adopted, depending upon all the elements entering into the economy, productiveness and local advantages which would be sought by prudent men in determining such a question. the Alexandria and Bloomfield road was permanently located through the Towns of Luray and Upton to the north boundary line of Missouri, and that no part of the line thus located was in or through the County of Schuyler, and that the same was continued into the State of Iowa by another company organized in that State; that the name of said Alexandria and Bloomfield road was in that year changed by an Act of the Legislature to that of Alexandria and Nebraska City Railroad, and that in its 2d section that Act provided “That said railroad company may extend said road from a point at or near Luray to Nebraska City, in Nebraska Territory, on the most practicable and direct route by way of or near Rockport, in Atchison County, Missouri; that the name was again changed to that of the Missouri, Iowa and Nebraska Railroad Company; that the road was thereupon and by virtue of said Act constructed through Schuyler County into the State of Iowa, and that this is the only line thus constructed through Schuyler County. It is then added, that when Schuyler County made its subscription and issued its bonds, as set forth in the complaint, to aid in the construction of this road, it was done without a submission of the same to a popular vote, and that the same was made without the previous assent of a majority of two thirds of the voters of the said County, and it is contended that such subscription is void. The question on this branch of the case arises upon article 2, section 14, of the Constitution of the State of Missouri, which took effect in July, 1865, and yet remains of force. It is in these words: "The General Assembly shall not authorize any county, city or town to become a stockholder in or to loan its credit to any company, association or corporation, unless two thirds of the qualified voters of such county, city or town, at a regular or special election to be held therein, shall assent thereto." and of which Schuyler is one, were authorized in the year 1857 to subscribe to its stock, and issue their bonds in payment therefor. This subject was discussed in Callaway Co.v. By the terms of the charter of the Alexandria Foster, 93 Ú. S., 567 [XXIII., 911]. As there and Bloomfield Railroad Company, the counintimated, we are of the opinion that the Legis-ties upon the route on which it might be located, lature, by the expression, "Any county in which any part of the route of said railroad may be," used as it was with reference to a road not yet surveyed or located, intended to give a broad latitude, and to embrace all the counties through or into which it was possible that the said road could be located. These statutes are to be construed as they were intended to be understood when they were passed, twenty years since. The after-wisdom, obtained by unfortunate results, cannot justly be applied in their interpretation. A construction may now be sought which will avoid the payment of the debts contracted for building the road. Then every inducement was presented to make subscriptions and obtain the money. Little respect would have been paid to the careful legislator or the strict interpreter of the law, who, twenty years ago, had doubted the power of these counties to make the subscription in question. We see nothing in the law or in the necessary facts of the case, affecting the power, in the first instance, of the County of Schuyler to subscribe to the stock of the Alexandria and Bloomfield Railroad Company, and to issue its bonds to raise the funds to pay such subscriptions. 2. It is further alleged that in the year 1866 It has been repeatedly held by the Supreme Court of Missouri, as well as by this court, that the constitutional provision referred to was pros pective only in its effect. The General Assembly was not permitted thereafter to authorize any county or city to make subscriptions and to issue its bonds, except upon the terms pre scribed. But what it had previously authorized remained unaffected. The authority given to Schuyler County eight years before the Consti tution took effect remained of the same force as if the Constitution had never been adopted. See, Scotland Co. v. Thomas, 94 U. S., 682 [XXIV., 219] and cases cited. It is also established by the same authority that the consolidation of one railroad company with another company does not extinguish the power of a county to subscribe, or the privilege of the company to receive subscriptions; and this, although the consolidation be made by authority given after the Constitution took effect, and although the subscription be made to the stock of such newly organized company, and the bonds be issued after the same period. |