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in the creek, making their claims contiguous, and afterward reported that he had done so, saying that he had staked Chisholm first and Hall next. Chisholm and Hall went to the claims about the 20th of October, and cut trails to them, and did other work upon them; and at that time copied the notices of location and had them recorded. The notices, with their indorsements, were introduced in evidence. The testimony was given by several witnesses and in great detail, and it was opposed at about all points by testimony of several witnesses, including Cahoon; and as to who first discovered gold there was a decided conflict whether Sutherland did, who is one of the appellee company, or whether Hackley did, under a location by whom the appellant company claims. Also a conflict as to whether Hackley protested when Cahoon wrote the notices of location for Chisholm and Hall, and whether Cahoon promised to take them down and authorized Hackley to do so, and, upon his declining, authorized Lewis, one of the appellant comÉ. to take them down and relocate Chisolm and Hall further up the creek, and whether Lewis did so. 1. It will be observed that the main controversy of fact between the parties was as to who made the first discovery of gold,— Hackley or Sutherland. On this testimony appellants base three contentions, to which, they claim, the instructions asked by them at the trial court were addressed: (1) That the discovery of mineral is a I..." condition to the making of a valid ocation, and that Hackley was the first to discover gold. (2) That the locations relied on by apPoll. were invalid because they were not distinctly marked on the so or otherwise designated as required by law.” 2 (3) That the citizenship of Chisholm 3 and Hall was put at issue by the pleadings, * and no evidence was offered to establish "it, but, on the contrary, the power of attorney under which Cahoon acted represents them to be citizens of British Columbia. Without now questioning the soundness of either of these contentions, it is enough to say that the assignments of error based upon the refusal of instructions cannot be entertained. This is undoubtedly a suit in equity, and if it may be regarded as entertained under the general powers conferred
by the act of May 17, 1884 (23 Stat. at L. k
24, chap. 53), error cannot be predicated upon the giving or the refusing of instructions. The verdict was but advisory to the court, to be adopted or disregarded at the court's discretion. This we regarded as indisputable, but in order that counsel might be heard upon the effect of the Oregon Code, if regarded as applicable to Alaska, we requested briefs of counsel “as to what errors, in respect of giving or refusing instructions or other rulings on trial by a jury in a cause of this character, are open for consideration on appeal from the district court of Alaska.” In response to that request, counsel for
appellant urge that by § 7 of the act of May 17, 1884, supra, the final judgments of a district court of Alaska are reviewable by this court “as in other cases,” and that the terms, “other cases,” “necessarily refer to the procedure for review provided by $$. 691 and 692, Revised Statutes, governing district and circuit courts having like jurisdiction.” But the procedure there prescribed is for the purpose of reviewing error, and error, as we have already said, cannot be based on instructions given or refused in an equity case. Nor is the rule different in the state of Oregon. De Lashmutt v. Everson, 7 Or. 212; Swegle v. Wells, 7 Or. 222. 2. There was no finding of facts by the court, and, assuming that we may look into the evidence, we find it conflicting as to who first discovered gold,—Hackley or Sutherland. The court below evidently determined that Sutherland did, and, having no test of the credibility of the witnesses, we cannot pronounce that determination unsound. Sutherland seems to have been acting with and co-operating with Cahoon. Ats any rate, Sutherland is not contesting thes locations made o Cahoon"for Chisholm and • Hall, but, on the contrary, asserts their validity and claims title under them. The locations, therefore, are valid so far as they depend upon the discovery of gold. The second contention is that they are invalid because they were not “distinctly marked on the ground.” The appellants base this contention on Cahoon's testimony. His testimony is that he wrote the notices of locations upon a stump or snag in the creek, and they were as follows: “I, the undersigned, claim 1,500 feet running down this creek and 300 feet on each side.” But the notices produced by other witnesses, and which were testified to be copies, as near as could be made out, of those on the stump, were respectively as follows:
Notice is hereby given that I, the undersigned, have, this 6th day of October, 1898, located a placer mining claim 1,500 feet running with the creek and 300 feet on each side from center of creek known as McKinley creek, in Porcupine mining district, running into Porcupine river. This claim is the east extension of W. A. Chisholm claim on about 1,800 feet from the first falls abovethe Porcupine river, in the district of Alasa. Peter Hall, Locator. Witnesses: J. Hanson.
Notice is hereby given that I, the undersigned, have, this 6th day of Oct., 1898, located a placer mining claim 1,500 feet alon creek bottom and 300 feet from center ; creek each way on creek known as McKinley, in Porcupine mining district, described as follows: West extension of Peter Hall’s. claim and about 300 feet above first falls on said creek, in the district of Alaska. Wm. A. Chisholm, Locator. Witnesses: D. Sutherland. James Hanson.
These notices constituted a sufficient location; the creek was identified, and between it and the stump there was a definite relation which, combined with the measurements, enabled the boundaries of the claim to be readily traced. Haws v. Victoria Cop5 per Min. Co. 160 U. S. 303, 40 L. ed. 436, $16 Sup. Ct. Rep. 282. * *3. Conceding, appellants say, a proper discovery and a proper description of the location, nevertheless, as the citizenship of the locators was put in issue, it was necessary to be proved to justify a judgment for the appellees, because, under § 2319, Rev. Stat., the public lands of the United States are only open to exploration, occupation, and purchase by citizens of the United States and those who have declared their intention to become such. In Manuel v. Wulff, 152 U. S. 505, 38 L. -ed. 532, 14 Sup. Ct. Rep. 651, this court sustained the validity of a conveyance of a mining location to an alien, reversing a decision of the supreme court of Montana to the contrary. The decision was based upon the difference between a title by purchase and title by descent, and the doctrine expressed that an alien can take title by purchase, and can only be devested of it by office found. The case of Doe ea dem. Goveneur v. Robertson, 11 Wheat. 332, 6 L. ed. 488, was cited and approved, and the remarks of Mr. Justice Johnson in that case become apposite: “That an alien can take by deed, and can hold until office found, must now be regard-ed as a positive rule of law, so well established that the reason of the rule is little more than a subject for the antiquary. It no doubt owes its present authority, if not its origin, to a regard to the peace of society and a desire to protect the individual from arbitrary aggression. Hence it is usually said that it has regard to the solemnity of the livery of seisin, which ought not to be devested without some corresponding solemnity. But there is one reason assigned by a very judicious compiler, which from its good sense and applicability to the nature of our government makes it proper to introduce it here. I copy it from Bacon, not having had leisure to examine the authoritv which he cites for it: ‘Every person,” says he, “is supposed a natural-born subject that is resident in the Kingdom and that owes a local allegiance to the King, till the contrary be found by office.’ This reason, it will be perceived, applies with double force to the resident who has acquired of the sovereign himself, whether by purchase or by favor, a grant of freehold.” s That grantees of the public land take by $purchase this court, in Manuel v. Wulff, ~ left no doubt. It was said that when a "location is perfected it has the effect of a grant by the United States of the right of present and exclusive possession. Forbes v. Gracey, 94 U. S. 762, 24 L. ed. 313; Belk v. Meagher, 104 U. S. 279, 26 L. ed. 735; Gwillim v. Donnellan, 115 U. S. 45, 29 L. ed. 348, 5 Sup. Ct. Rep. 1110; Noyes v.
Mantle, 127 U. S. 348, 32 L. ed. 168, 8 Sup. Ct. Rep. 1132. The appellants, however, deny the application of Manuel v. Wulff, and contend that this suit having been brought under § 500 of the Oregon Code, in order to maintain the suit, the appellees must show a right to the exclusive possession of the ground in dispute. This is in effect to say that, while the validity of the location may not be disputed by appellants, that the right to the possession, which is but an incident of the location, may be. We do not concur in this view. The meaning of Manuel v. Wulff is that the location by an alien and all of the rights following from such location are voidable, not void, and are free from attack by anyone except the government. It is not necessary to notice other points made by appellants; and, discovering no error in the record, judgment is affirmed.
(183 U. S. 591) UNITED STATES REPAIR & GUARANTY COMPANY, Petitioner, w
ASSYRIAN ASPHALT COMPANY.
Patent—for method of repairing asphalt pavement—lack of novelty.
The Perkins patent, 501,537, for a method of repairing asphalt pavements, consisting of so heating the spot to be repaired and the adjacent surface that the asphalt is reduced to the soft, pliable state in which it was originally laid, then mixing in enough new material to fill up the spot to be repaired, and then subjecting it to the usual finishing operations, is void for lack of novelty by reason of the prior French patent to Crochet, the process in which differed chiefly in the fact that the old asphalt was removed from the spot to be repaired, while this was not done by the Perkins method.
July, 1835, and the 19th of May, 1896. The first, 501,537, was for an improved “method of repairing asphalt pavements;” the other numbers were for “improvement in apparatus for repairing asphalt pavements.” The bill contained the usual allegations of invention and infringement, and prayed an injunction. The answer admitted the issue of the patents, but denied that Perkins was the original and first inventor of the subject-matter, or that the improvements therein disclosed constituted new and useful inventions within the meaning of the patent laws, or that said improvements were not known or used in this country, or had not been patented or described in any printed publication in this 3 or in foreign countries before the alleged in; vention thereof by Perkins. * *The petitioner dismissed the bill as to patent number 542,349. Upon the hearing the circuit court sustained the apparatus patent number 560,599, finding that the Assyrian Asphalt Company had infringed upon that apparatus, and ordered an injunction and a reference for an accounting. The method patent, number 501,537, was adjudged invalid, and the court said: “From the evidence in this suit regarding the prior state of the art, and the argument before me, I find that the term ‘asphalt’ is not limited in its meaning to the Trinidad deposit, or to so-called “American mixture,” but includes as well the bituminous paving material used in France and elsewhere, comprising natural rock asphalt and compositions of bitumen and lime or sand particles; and that the claims of the Perkins method patent are so broad with reference to the application of heat to the repair of asphalt pavements that they are anticipated by the Crochet patent, and are invalid.” [96 Fed. 236.] The petitioner took an appeal to the court of appeals, and that court affirmed the judgment of the circuit court. 41 C. C. A. 123, 100 Fed. 965. The case was then brought here by a certiorari. The proceedings here are only concerned with the method patent, number 501,537. The letters patent describe the invention as follows: “My invention is designed to produce a method whereby the repairing of asphalt pavements may be quickly and cheaply accomplished, and a neater appearing pavement be obtained after repairing than has heretofore been the case. “Heretofore in the repairing it has been customary to dig out with a pick or other instrument the surface material around the spot to be repaired, sometimes applying heat to the spot to soften the material so that it may be more easily removed. When the material has been removed the depression thus made is thoroughly cleaned and given a coat or dressing of tar. New material in a heated state has then been placed in the depression. and been ironed down and smoothed off in the usual manner of finishing, the tar acting as a solder to hold the rew material in place. When completed,
however, the line or joint between the old hardened material and the new material hase: been Fo discernible, and more often? there has been more or less of a ridge.* Again, this new block of material, by reason of frost or from other causes, is frequentl torn loose from its soldered connection wit the old material, thus necessitating new repairs. In practising my invention, however, I subject the spot to be repaired and the surrounding edges to such a degree of heat that the surface asphalt.—not only the exact spot to be repaired, but the surrounding portion, to a greater or less degree—is reduced to the soft pliable state in which it is originally laid. With a rake or other suitable instrument it is then agitated and mixed with enough new material to fill up the spot to be repaired. It is then subjected to the usual finishing operation of ironing and burnishing. The heating of the surface may be accomplished in various ways and by means of various forms of apparatus, and while I have herein shown but one form for accomplishing the result, yet I would have it understood that I do not limit myself to any particular form of apparatus for carrying out my invention.” The apparatus described consists of a suitable tank mounted on a wheel for carrying gasoline. The tank is connected with a series of horizontal pipes which carry a series of burners, and “project a flame downward against the pavement.” “In carrying out the invention A represents a suitable tank for carrying gasoline mounted on the wheeled frame B and connected by the pipe C with a series of horizontal pipes, D. These pipes D carry a series of burners, E, which pass through a hood or shield, F, and project a flame downward against the pavement. Pressure is then obtained upon the gasoline to force it to the burners and to produce a blast by means of an air pump, G, mounted upon the tank.” The letters patent further say: “The apparatus is also provided with a handle, H, whereby the operator may readily move it to the desired spot. Now, as would be seen by turning on as many of the burners as are desired, a strong blast of heat is projected against the surface of the asphalt, and readily melts it. As explained above, when it is desired to repair a spot, the apparatus is moved adjacent thereto with the burners directly above the spot. These soon reduce the surface as-e phalt, both at the spot and at the surround-: ing "edges, to a pliable state, the strongblast causing not only the immediate surface, but the particles deep down, to be melted and yet not burned. With a rake or other suitable instrument the operator then agitates or stirs up the softened material, and, by adding new material of substantially the same degree of softness, the spot or depression to be repaired is filled up and subjected to the usual smoothing and finishing operation as in the case of a new pavement. This, as will be seen, is done without the use of the tar for the purpose of uniting the
parts or sections of material, and is done without any distinct dividing line between the old and new material. In fact, there is no dividing line, because the new material has been mixed with and becomes a part of the old material. As stated above, while heating the spot to be repaired, the surrounding edges or portions must be heated to a greater or less degree, and the new material is worked into these edges, as well as in the spot to be repaired, so that when hardened it is practically impossible to tell where the pavement has been repaired. “What I claim is— “l. The method of repairing asphalt pavements, which consists in subjecting the spot to be repaired to heat, adding new material, and smoothing and burnishing it, substantially as described. “2. The method of repairing asphalt pavements, which consists in subjecting the spot to be repaired to heat until the material is softened, agitating it, and mixing with it new material, and finally smoothing and burnishing it, substantially as described.” Infringement is only asserted of the first claim, and, considering the language of the claim and of the specifications, it seems impossible to escape the conclusion that the invention claimed is for the application of heat to the spot to be repaired. And the patentee did not confine himself to the particular apparatus he described. That, he said, was “one form of accomplishing the result.” He would have it understood, he said, that he did not confine himself “to any particular form of apparatus for carrying ye out” his invention; and the independence of 3 his method from any form of apparatus is * brought out by "contrast of what had been done and what he proposed to do as an improvement. What had been done was to take out with a pick or other instrument the surface material around the spot to be repaired, sometimes applying heat to the spot to soften the material, so that it might more easily be removed. And the new method he proposed was to subject the spot to be repaired and surrounding edges to such a degree of heat that the surface asphalt.— not only the exact spot to be repaired, but the surrounding material, to a greater or less degree—will be reduced to the soft, pliable state in which it was originally laid. Here we have the comparison of the two methods. The old was to take out the surface material around the spot to be repaired, sometimes applying heat to soften such material. The new method was to apply heat, not to to the exact spot to be repaired, but the surrounding edges. What, then, was the advantage of the new method? The patent tells us. In the old method the depression made by the removal of material was “thoroughly cleaned and given a coat or dressing of tar.” The tar acted as a solder, but the joint between the old and the new material was discernible, and often a ridge was formed, and the adhesion of the materials yielded to frost and other causes. The new method dispenses with the tar and its consequences. It substitued the melt
ing of the surrounding edges, producing a union and coalescing of the old and new material, making a better appearing and more lasting repair. If the method and effect of the patent be different from this, we are unable to discern it from the patent or from the testimony. Indeed, there is no other difference established by the testimony. One of the expert witnesses of the petitioner testified as follows:
“It is further evident that in such use of defendants’ device and in the repair of pavements in part by the use of said device by defendants, the use of tar or any other cement or ‘solder’ is obviated; that the union between the patch of new material and the old pavement is direct, immediate, and complete, without the intervention of an interposed body of tar or like material; and that the joint need, therefore, present none of the dis-2 advantages, objections, or defects, in re-? spect either of *appearance or of effective-s ness, which distinguished the old tar joint and which are obviated by the method here in controversy.
“There are three steps or process elements enumerated in this claim, to wit: First, ‘subjecting the spot to be repaired to heat;’ second, ‘adding new material;’ and third, ‘smoothing and burnishing.” These are all performed in the same order by the defendants. The separate steps are, moreover, essentially the same in kind in defendants' practice, as set forth in the patent. The heat is applied to the spot to be repaired with a flame blast. The new material added is the same in condition and character; it is not tar or any part tar, but is solely the asphalt composition like that of the old pavement, and in the soft condition and heated state in which said composition is and was originally applied. The smoothing and burnishing is the same step in both cases, being the old and familiar operation performed by means of heated metal tamping and smoothing irons long before used in leveling and smoothing original asphalt pavement surfaces.” And he further testified: “It appears to me to be a feature of the patented method, or a characteristic of the steps of applying the new material, that the new material is placed into direct contact with the old, as if the claim read ‘addin new material in direct contact with the ol material, and smoothing and burnishing it.” -In other words, the mixing of the old and new material around the edges of the excavation, and “adding of new material in direct contact with the old material, smoothing and burnishing it,” is the essence of the invention; and so unqualifiedly is this true that a witness of petitioner testified that if the heat which was applied not only melted, but burned, the immediate surface and as well “the particles deep down,” and the material thus burned raked away clean before new material was applied, the method of the patent would be followed. As thus described, was there anything in
the art which preceded the Perkins method and took from it the claim of originality and invention? The circuit court and the circuit court of appeals found that a patent issued to Paul Crochet"June 11, 1880, in France, had that effect; and we concur in the finding. The process described in the Crochet patent is for the “preparation and recharging of compressed asphalt roadways.” The following is the specification of the patent: “When it was designed to repair or recharge a roadway in asphalt with the means which are now at command, the operator generally delimits with a pick the part which is to be replaced, and takes therefrom the asphalt; but it is rare that this operation has not for consequence the starting of the adjacent portions which are sound, swelling them up in such wise that at the end of a little while it is necessary to repair them in their turn. “To avoid this I have designed a process for repairing and recharging asphalt roads which suppresses such inconveniences. It consists in reheating the part to be mended by means of a movable furnace which the operator shifts about at the surface of the roadway, until such portion decrepitates and becomes friable. The upper part of the layer of asphalt and that which has been damaged are taken off by means of an iron scraper armed with small teeth which perform the office of a rake; said scraper in raising the material forms at the same time . the part remaining numerous striae which render the surface wrinkled, and augment the adherence of the additional overthickness which constitutes the recharge. “The repeated passage of the movable furnace thereon has equally for its effect to vaporize the water and the humidity which are found in the asphalt pavement at the portion to be repaired or recharged. “After this preparatory operation the workman spreads a convenient depth of asphalt in powder-like state and stamps it by the ordinary means; because of the softening of the subjacent layer, said layer solders itself perfectly to the new coat, and forms with it a thickness without break in continuity. Such repair and such recharging do not at all impair the neighboring portions. “It is clearly evident, besides, that the same work of recharging can be done over the whole surface of a street, instead of be#ing done in spots, and that it is independent 5 of the depth of the asphalt layer. * “The heating apparatus which I have ar.#. for thus effecting the softening the surface of the asphalt roadways is represented on the drawing annexed, in longitudinal and transverse sections, Figs. 1 and 2. It is composed of a box body, the sides A, A, B, B, of which are perforated throughout, and the bottom C, whereof is formed a ating, below which there is a metal plate § to radiate the heat over the surface of the asphalt. Said plate D is movable to allow for the withdrawal of cinders. The box is mounted upon the wheels E, the axeso where
of are adjustable upon supports a, the elevation of which in guides b can be varied toaugment or diminish the distance of the box to the roadway. A handle, F, serves to manoeuver the car over the pavement. This system, especially applicable for streets of compressed asphalt, can be equally employed to repair and recharge streets of bitumen. “Résumé: “I claim as my invention my system for reparation and recharge of asphalt roadways, presenting as distinctive characteristics the points following: “1st. The softening of the upper surface of the asphalt layer at the part to be repaired, and the removal of such upper surface by means of a toothed scraper which striates the part remaining. “2d. Recharging, by the addition upon the surface thus softened, of an asphalt layer of convenient thickness, which is stamped by the usual means. “3d. The movable furnace which I have combined to such end, according to the conditions described and represented.” The similarity, if not identity, of the patents, is manifest, and it would seem unnecessary to enlarge upon their resemblance. They are both methods of repairing asphalt roadways; they both apply heat to the spot to be repaired; the old material is removed in the Crochet patent; in the Perkins patent it is reduced to the state in which it was originally laid, then agitated and mixed with new material. But this agitation and mixing of old and new material is not necessary to the method. It may be advisable to do or not to do, a witness testified. . Bute further, the Perkins patent calls for a heat-3 ing of the "surrounding edges of the spot too be repaired, to make continuity between the spot repaired and the surrounding pavement. The Crochet patent has not this detail in words, but it is clearly implied. Describing the prior art, the Crochet patent says: “ . . . . . the operator generally delimits with a pick the part which is to be replaced, and takes therefrom the asphalt; but it is rare that this operation has not for consequence the starting of the adjacent portions which are sound, swelling them up in such wise that at the end of a little while it is necessary to repair them in their turn.” His method, he says, “suppresses such inconveniences,” and the repeated passing of the heating apparatus over the pavement has the effect that the new coat forms with the old “a thickness without break in continuity, and it does not at all impair the neighboring portions.” Surely, considering the method of this patent alone, it did not require the exercise of invention to pass to or conceive the Perkins method. Besides, that conception had the aid of other publications. In some of them the application of heat is mentioned as necessary in the original construction of asphalt pavements, and also in their repair. In a work entitled “Asphalt, its Origin, its Preparation, and its Application,” by Leon Malo, published in Paris in 1888, the repair of pavements after excavations and deteriorations