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Opinion of the Court.

the settler takes certain steps, that is, files a declaratory statement, such as is required when the surveys have preceded settlement, and performs certain other acts prescribed by law, he acquires for the first time a right of preemption to the land.

He has been permitted by the government to occupy a certain portion of the public lands, and therefore is not a trespasser, on his statement that when the property is open to sale he intends to take the steps prescribed by law to purchase it; in which case he is to have the preference over others in purchasing, that is, the right to preëmpt it. The United States make no promise to sell him the land, nor do they enter into any contract with him upon the subject. They simply say to him, if you wish to settle upon a portion of the public lands, and purchase the title, you can occupy any unsurveyed lands which are vacant and have not been reserved from sale; and, when the public surveys are made and returned, the land not having been in the meantime withdrawn from sale, you can acquire, by pursuing certain steps, the right to purchase them."

It must, therefore, be conceded that Osborn did not, by maintaining possession for several years and putting valuable improvements thereon, preclude the government from dealing with the lands as its own, and from conferring them on another party by a subsequent grant.

On the other hand, it would not be easy to suppose that Congress would, in authorizing railroad companies to traverse the public lands, intend thereby to give them a right to run the lines of their roads at pleasure, regardless of the rights of settlers.

That

Accordingly, when we examine the act of March 3, 1875, upon which the plaintiff rests its claim of right to appropriate to its use, without compensation, the land and improvements of Osborn, we find, in the third section, an express provision saving the rights of settlers in possession. section is in the following terms: "That the legislature of the proper Territory may provide for the manner in which private lands and possessory claims on the lands of the United States may be condemned, and where such provision shall

Syllabus.

not have been made, such condemnation may be made in accordance with section three of the act entitled An act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, and to secure to the government the use of the same for postal, military, and other purposes, approved July first, eighteen hundred and sixtytwo,' approved July second, eighteen hundred and sixty-four." The legislature of the Territory of Idaho, in pursuance of said third section, did provide a law for the condemnation by railroad companies of the right of way over possessory claims, (Rev. Stat. of Idaho, Title 7,) and undoubtedly the defendant's claim was a possessory one, within the meaning of the legislation of Congress. Indeed, as we have seen, the plaintiff company recognized the applicability of this section and instituted proceedings of condemnation under the Idaho act before it occurred to it to ask the aid of a court of equity in taking possession of the defendant's land and improvements without compensation.

We find no error in the judgment of the Supreme Court of the Territory of Idaho, and it is accordingly

Affirmed.

MCCARTY v. LEHIGH VALLEY RAILROAD COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

No. 9. Argued November 14, 15, 1895. - Decided December 2, 1895.

The inventions claimed in the third and fourth claims of letters patent No. 339,913, dated April 13, 1886, issued to Harry C. McCarty for an improvement in car trucks, if not void for want of novelty, as the application of an old process or machine to a similar or analogous subject, with no change in the manner of application, and no result substantially distinct in its nature, were inventions of such a limited character as to require a narrow construction; and, being so construed, the letters patent are not infringed by the bolsters used by the appellee.

Statement of the Case.

If, upon the face of a record, anything is left to conjecture as to what was necessarily involved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered as evidence.

THIS was a bill in equity for the infringement of two letters patent issued to McCarty for improvements in car trucks, viz.: Patent No. 314,459, dated March 24, 1885, and patent No. 339,913, dated April 13, 1886. The application for the first patent was filed June 5, 1884, and for the second patent, August 31, 1883, so that in reality the second patent represents the prior invention. Upon the hearing in this court, complainants abandoned their claims under the first patent, No. 314,459, and asked for a decree only upon the third and fourth claims of the second patent, No. 339,913.

The invention covered by this patent consists of a metallic bolster for car trucks, upon which the whole body of the car is carried by a swinging pivot, as shown in the following drawings:

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Figure 1 of these drawings represents a side view of the car truck between the wheels, the ends of the bolster resting upon the side irons A of this truck. Figure 2 represents the bolster,

Counsel for Appellants.

formed of a top iron bar, F, and a lower iron bar, G, the bar F being arched and bolted at its ends to the bar G. Between the bars are the supporting metallic columns H, which rest on the bar G. The crown or central portion of the bar F rests upon these columns, the bars and columns being firmly bolted together. J represents the side bearings, which rest on and are bolted to the bar F, and have connected with them the ends of the truss rods K, which are of inverted arch form. These side bearings and truss rods, however, are immaterial in the present case. On the under side of the ends of the bar G are screwed the plates P, whose sides are notched or grooved, as at a, to receive the columns B of the side irons, the plates thus forming the end guides or supports of the upper bolster. The ends of the bar G are turned upwardly, forming the flanges Q, against which the ends of the bar F abut.

The third and fourth claims, the only ones in issue, were as follows:

"3. The lower bar G having flanges Q turned up on its ends, in combination with the arched upper bar F, having its ends bearing against said flanges, the.guide plates P, bolted to the ends of said bars under the same, the stops or blocks M inserted between bars F and G, near their ends, and the pillars H, also interposed between said bars, as stated."

"4. The upper bolster, composed of the bent bar F, straight bar G, and interposing columns M, in combination with the plates P, secured beneath the bars FG at their ends, and notched or grooved on their sides at a, to receive the columns B of the side irons, substantially as and for the purpose set forth."

The answer of the defendants denied that McCarty was the original inventor of the alleged improvements; averred that said improvements were not of any advantage to the public; that the inventions were not patentable; had been described in prior publications; and had been publicly used elsewhere. Upon a hearing upon pleadings and proofs, the bill was dismissed, and complainants appealed to this court.

Mr. Jerome Carty and Mr. R. A. Parker for appellants.

Opinion of the Court.

Mr. Robert J. Fisher for appellee.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

The specification of the patent in this case does not, as specifications ordinarily do, state the peculiar functions of the patented device, the defects it is designed to remedy, or the features that distinguish it from other similar devices. This omission, however, is supplied by the testimony, which shows that the invention was due to the frequent breaking of wooden bolsters, of the form in common use, in what were termed the "diamond truck," and other forms of car trucks. After some fruitless experiments, McCarty conceived the idea of using two iron plates, thereby forming a strong bolster, without the disadvantage found in the use of wood alone, or wood in connection with the iron plates. This resulted in the application for patent No. 339,913, for a bolster partly supported by truss rods. It soon appeared, however, that the form shown in the drawings of 339,913 possessed the requisite strength without the truss rods, which were accordingly dispensed with, and patent No. 314,459 subsequently applied for.

A few days after McCarty applied for his first patent, viz., September 10, 1883, one William H. Montz made application for a similar device, upon which a patent was granted, apparently by mistake of the Patent Office, and an interference then declared between them. Priority in invention was awarded to McCarty, February 24, 1886, neither party taking any testimony. In this connection there was much evidence tending to show that in October, 1882, a convention of master car builders was held at Niagara Falls, at which McCarty's model was exhibited and examined by car builders, among whom was Mr. Lentz, master car builder of the Lehigh company, defendant in this case. Shortly after this Mr. Lentz wrote an official letter in behalf of the defendant, requesting McCarty to send a blue-print of his truck, as shown at Niagara Falls the week before. A blue-print was accordingly sent to him on October 24, which cor

VOL. CLX-8

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