1975, was also granted to the appel- tent does not embody anything new which the improvement in street cars," con- defendant infringes. The opening and closing placing a mirror in the hood of an or- of the rear door of a street car from the front street car to enable the driver to see platform is not new. The specification of the sccurring in and behind the car. O'Haire patent says: "I am aware that it is not charged an infringement of each of new to operate the door from the front platrts by the appellee in all of its cars. form of the car, as this has heretofore been acrawer of the appellee denied infringe-complished by means of an endless cord which y of the patents sued on; averred passes through the rods to which the holdingbeen anticipated by specified Amer- straps are secured, and I therefore disclaim such mirez patents and by certain persons invention." try, naming them; that none of the were patentable; and that the devices the second and third patents were and on sale for more than two years the application for letters patent there

tzal bearing the Circuit Court disand the plaintiff appealed. William Allen Butler, BenjaF. Thurston, George Gifford and Philip for appellant.

I Francis Rawle and Walter George for appellee.

J

Woods delivered the opinion of

Tall consider each of the patents in the The above stated

tention described in the O'Haire pasers of a combination and arrangement y which the rear door of a street car peed and closed by the driver from the where he stands, in order to let into or out of the car.

z by which the specification is wows the frame of an ordinary street ed with a door which is supported zi zores back and forth upon suitable and ways, which, it is said, may be arsy desired manner. Passing through which the hand straps are susand which is made hollow, is a rod or ch has a lever or crank upon its thin easy reach of the driver. Upi is a similar lever or crank carer, which works up and down in a ding-frame secured to the rear Brandby which the door is opened The driver, by a slight push upon ever, can open the door, or by a pull can close it without moving off his

is as follows: "The rod i, crank 1, and guiding-frame 6, secured to the ced with an operating lever ver, substantially as shown and de

ment charged against the defendof cars containing an improveating car doors," described in the rge M. Brill, dated December 1st, dere covered by this patent was ly the same as that described in the pe, except that the rock shaft ran Sottom of the car instead of through trom which the hand straps were sus

At the date of O'Haire's application it was well known, as is shown by the evidence, that doors and window shutters guided by slides, both in vehicles and apartments, were opened and closed by mechanism used by persons placed in such situations that they could neither reach nor open and close the doors or shutters directly. The device of O'Haire must, therefore, to be the subject of a valid patent, embody some new means for accomplishing this end.

The elements of which his contrivance was made up were the rod or rock shaft, reaching from the front to the rear of the car, the lever by which a rocking motion was given to the shaft, and the means used for communicating motion from the shaft to the door.

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The testimony is conclusive to show that there is nothing new in the rock shaft or in the lever by which it is moved. Long before the date of O'Haire's application, the evidence is clear that rock shafts operated by a lever or crank were used to open and close the doors of furnaces, and the window and door openings of sugar refineries, by persons standing at a distance from the windows and doors to be opened and closed. A rock shaft moved by a lever at the end of a railway carriage for the purpose of opening and closing the sliding doors of the carriage was described in the English letters patent set out in the record of John Johnson, dated March 3, 1857. The use of a rock shaft for a similar purpose, namely: the opening and closing of sliding window blinds, is also shown in the patent of Daniel Kidder, dated June 8, 1869. Rockshafts, for the same purpose, are shown in the patent of Darwin D. Douglass, dated June 11, 1861, and the patent of W. H. Brown, dated February 23, 1864. The shaft in the Brown patent was moved by a lever, and in the Kidder and Douglass patents by a knob attached to its end, which is the well known equivalent of [153] a lever. It appears, therefore, that the use of a rock shaft actuated by a lever for communicating motion was an old device which had been in use long before the date of the O'Haire patent.

It remains to consider the mode adopted by O'Haire for communicating motion from his rock shaft to the door of the car. We find it to be one of a number of old and well known devices for changing rotary into horizontal or rectilinear motion. The testimony shows that the devices long used for this purpose are a pinion or segment of a pinion whose teeth interlock with the teeth of a straight bar or rack or a rigid lever attached at one end to the rockshaft, and having on the other a pin or roller no evidence to show that O'Haire's working in a slot formed on the door or shutsedates the application for his pater to be moved. Sometimes the slot is in the huch was made on June 27, 1878. Con- lever, and the pin or roller is on the door or The state of the art at that time we are shutter. These devices perform the same functhat the devi Apations in substantially the same manner, and

have long been recognized as mechanical equiv-¡
aleuts.

The device covered by the patent of O'Haire,
therefore, consists of a rock shaft with a lever
attached for the purpose of giving the shaft a
rocking motion, combined with a well known
and long used device by which the rocking mo-
tion was changed into a rectilinear motion and
communicated to the door of a car. No one of
these devices can be claimed as new.

patent, insist that this is no part of the patented contrivance, and the testimony shows that the defendant does not use it.

We are of opinion, therefore, that, construing the patent of O'Haire, in view of the state of the art at the date of its issue, as we are compelled to do, in order to leave any ground whatever on which it can be sustained, the defendant does not infringe.

We have next to consider the patent granted to the plaintiff, dated March 30, 1875, for an inprovement in signaling devices for street cars.

"

The specification thus states the object of the contrivance described in the patent:

If there is any ingenuity displayed in the contrivance described in the O'Haire patent, it must, therefore, be in the combination of these devices to attain a result. The claim of the patent is for such a combination. But in our opinion this combination was anticipated by the pa- "The prevalence of street cars managed by tents of both Douglass and Brown before men- the driver, without the aid of a conductor, makes tioned. it necessary that every possible facility should be provided for him as well as the passengers. The ordinary street car has a signal bell located at each end, with a bell strap attached thereto, which runs centrally alone the ridge or highest part of the ceiling. This strap, as thus located, is inaccessible to many passengers.

The inventions described in these patents are
for the opening and closing of outside shutters
from the inside of a house without opening the
windows, and they consist of a rock shaft pass-
ing through the wall of the house to which a
rocking motion is imparted from the inside of
the house in the one case by a knob, and in the
other by a lever or handle on the inner end of
the shaft. By means of a pinion on the outer
end of the rock shaft applied to a toothed rack
on the shutter, a rectilinear sliding motion is
imparted to the shutter, which is thus opened
and closed. The rock shafts in these patents
are identical with the rod or shaft in the O'Haire
patent; the lever in the Brown patent, by which
the rock shaft is moved, is the same as the lever
in the O'Haire patent, and the knob in the Doug-
lass shaft is its well known equivalent; and the
contrivance by pinion and rack for transmitting
motion from the rock shaft to the shutter is the
well known and long used equivalent of the de-
vices used for a similar purpose in the O'Haire
contrivance. We find, therefore, that none of
the separate elements of the devices described
in the O'Haire patent are new, nor is the com-
bination new. So far, therefore, we find no pa-
tentable invention in the contrivance described
in the patent under consideration. It was said
by this court in Smith v. Nichols, 21 Wall., 112
[88 U. S., bk. 22, L. ed., 556], that "a mere car-
rying forward a new or more extended applica-
tion of the original thought, a change only in
form, proportions or degree, the substitution of
equivalents doing substantially the same thing in
the same way by substantially the same means,
with better results, is not such invention as will
sustain a patent." So in Penn. R. R. Co. v. Truck
Co., 110 U. S., 490 [Bk. 28, L. ed., 222], Mr.
Justice Gray, delivering the opinion of the court,
said: "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, will
not sustain a patent, even if the new form of re-
sult has not before been contemplated." These
authorities are pertinent. See also, Vinton v.
Hamilton, 104 U. S. 485 [Bk. 26. L. ed., 807];
Blake v San Francisco, 113 U. S., 679 [Bk. 28,
L. ed, 1070].

"My improvement is intended to remedy this trouble, and consists in a new combination and arrangement with a street car of bells or gongs and of the cords or straps which operate them, whereby passengers can, without rising from their seats, signal to the driver. This is of primary importance to invalids, ladies and children, and that more especially when the car is crowded."

The device covered by the patent consists of the placing of two bells, attached to the rafters of the bonnet or hood of the driver's platform, one at each corner of the front end of the car. To the hammer of each bell is attached one end of a bell cord, the other end of which is attached to the inner side of the rear wall of the car, the cords being led along the lower margin of the ceiling, one on each side the car, from which bell pulls or hand straps are suspended at intervals within easy reach of the seated passengers, so that they, without rising from their seats, can ring the bell.

The claim was as follows: "In a street car, two bell cords, each provided with a system of pull straps, and arranged in such manner as to pass along the lower margin of the roof on the opposite sides of the car and con..ect directly with a signal bell or gong attached to the outside of the driver's end of the car, substantially as and for the purposes set forth."

We are of opinion that there is no patentable invention described in this patent. Bell straps or cords running from one end of an omnibus or street car to the other, under the middle of the ceiling, Sere well known and in common use years before the application of Stephenson for his patent. The fact that they were so placed and used is mentioned in the specification. The evidence also establishes the fact, that before the year 1870 it was a common practice to attach pendant bell pulls or hand straps to this central cord so as to bring it within easier reach of the passengers. The evidence shows that If, therefore, there is any patentable novelty many of the cars in which such hand straps or in the O'Haire contrivance, it is in the placing bell pulls were used were built and sold in New of the rock shaft inside the bar to which the York. The use of such pendant hand straps hand straps are attached. But the plaintiff's long before the application of Stephenson for counsel, in order to bring the device used by the the patent now under consideration is concludefendant within the monopoly of the O'Haire | sively proven

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114

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[49]

SUPREME COURT OF THE UNITED STATES.

OCT. TERM,

IN ERROR to the Supreme Court of the State | the local land office between these parties as

of California.

The history and facts appear in the

to which was entitled to the land under the preemption laws. The register and receiver of the ceiver holding that the land should be awarded land office differed in their judgment, the reto Dilla, and the register that it should go to Bohall. The contest was thereupon transferred to the General Land Office at Washington, and the Commissioner sustained the claim of Dilla, holding that, from the time of his settlement in 1865 until ejected in 1868, he had fully complied with the law; that his absence since then was compulsory, as he was unable to make a residence on the land without being in contempt of the court under whose judgment he was evicted; that his non-residence was for that reason excusable, and should not be allowed to work against him. But as to Bohall, the Com

Statement of the case by Mr. Justice Field: This case comes before us from the Supreme Court of California. The plaintiff in the court below, the defendant in error here, is the holder of a patent of the United States for certain lands situated in Humboldt County, in that State, issued to him under the preemption laws upon proof of settlement and improvement, and the present action is to recover their possession. In his complaint he alleges his ownership in fee of the premises on a day designated, the entry thereon of the defendant without license, and the subsequent withholding of them; also that the value of the annual rents and profits of the premises is $800, for which sum and the resti-missioner held that his residence on the land tution of the premises he prays judgment.

The answer of the defendant denies the several allegations of the complaint, and sets up in a special count, by way of a cross complaint, various matters, which, as he insists, constitute in equity a good defense to the action and entitle him to a decree; that he has an equitable right to the premises; that the plaintiff holds the title in trust for him; and that the plaintiff should be required to convey the same to him. The matters set up as grounds for equitable relief are the previous settlement upon the premises and their improvement by the defendant, and certain proceedings taken by him to acquire the title under the preemption laws, which were disregarded and held insufficient by the Land Department of the Government, but which he contends establish his right to the patents.

It appears from the record and findings of the court that in October, 1862, the defendant purchased from his brother William, then in occupation of the land, the possessory right of the latter to the premises and his improvements thereon, received a deed from him, and immediately thereafter went into possession which was held until March 23, 1865; that on that date, in consideration of $600 partly paid in cash, and partly payable in installments, the defendant contracted to convey the premises and improvements to the plaintiff Dilla, who thereupon was put into possession and continued in possession until the 5th of May, 1868; that he was then evicted under a judgment obtained by the defendant upon the contract of purchase, and the latter was restored to the possession. In July, 1869, the defendant removed to Arcata, about twenty miles distant, and remained there until October, 1871, when his family went back to the land, followed by himself in December. In April, 1872, he moved to Mattole, about eighty miles distant, and there remained until August, 1874, when he again returned. In October following he again moved to Arcata and did not return until March, 1875.

The land was surveyed in 1873, and the plat thereof filed in the Land Office in October of that year. On the 3d of that month the defendant Bohall filed his declaratory statement, alleging settlement or October 22, 1862, and claiming the land. On the 26th of December following, the plaintiff Dilla filed his declaratory statement, alleging settlement under the preemption laws on the 25th of March, 1865, and claiming the land. A contest thus arose in 62

but had been interrupted by residence elsewhere
had not been continuous since his settlement,
for several periods; and that the occupation of
tenants during such periods did not satisfy the
provisions of the preemption laws, which re-
quired the continuous personal residence of the
preemptor; and therefore his claim was reject-
ed. The decision of the commissioner was af-
firmed on appeal by the acting Secretary of the
Interior. It is upon this ruling, charged to be
erroneous, that the defendant relies to maintain
his claim for equitable relief. The local state
court, upon these facts and others not material
to the case, adjudged that the defendant was
entitled to the decree prayed; but the Supreme
Court of the State held otherwise and reversed
the judgment; and, as there was no finding as
ises, ordered a new trial if the plaintiff so elect-
to the value of the rents and profits of the prem
ed. Upon the filing of the remittitur in the
lower court, the plaintiff waived his privilege
of a new trial, and the court thereupon, on the
pleadings and previous findings, gave judgment
for the plaintiff, which was affirmed by the Su-
preme Court of the State; and this judgment is
brought here for review.

plaintiff in error.
Messrs. W. W. Cope and S. M. Buck, for

Mr. Walter Van Dyke, for defendant in

error.

the court:
Mr. Justice Field delivered the opinion of

courts of California permits an equitable deThe system of pleading in civil cases in the fense to be set up in a special count, by way of cross complaint, in the answer to an action for the possession of lands. The cross complaint is in the nature of a bill in equity, and must contain its material allegations, disclosing a case which, if established, would entitle the defendant to a decree enjoining the further prosecution of the action, or directing that the title be therefore to be first considered, for, according conveyed to him. This equitable defense is to its disposition will the necessity exist for further proceedings in the action at law, in which the legal title of the parties will alone control. Quinby v. Conlan, 104 U. S., 420 [Bk. 26, L. ed., 800]; Estrada v. Murphy, 19 Cal., 248, 273; Arguello v Edinger, 10 Id., 150.

to the equitable relief he seeks can be sustained We do not think the claim of the defendant on the grounds stated in his answer or cross

at To charge the holder of the legal and ander a patent of the United States, #ief another, and to compel him to rattle, the claimant must present such il show that he himself was entitled from the Government, and that, in tee of erroneous rulings of the officers artment upon the law appli arkiralis found, it was refused to tang subcient to show that there Sawn error in adjudging the title It must appear that by the administered the title should w award to the claimant. SmeltKm. 104 C. S., 636, 647 [Bk. TNT: Boggs v. Merced Min

4 (a 279. 363. It is therefore the decision of this case what may be upon the conclusions - as to the possession of the plain that the defendant, 4st bring himself within the pro-on of the court: - 4- premption laws. Those laws

Mr. Chief Justice Waite delivered the opin

This is a writ of error for the review of an r the benefit of persons mak- order of the Circuit Court remanding a case qement upon the public lands, fol- which had been removed from the Supreme and improvement and the Court of the State of New York under the Act of sadelling thereon. This implies March 3, 1875, ch. 137, 18 Stat. at L., 470. The w'a continuous and personal. suit was brought by Ide, the defendant in ertous residence was shown on ror, a citizen of New York, against the LouisSall He was placed in pos- ville and Nashville Railroad Company, a Kenthe premises under the judgment tucky corporation; the Lake Shore and Michiurt in May, 1868; and it was gan Southern Railroad Company, and the Cleveprove that he occupied them land, Columbus and Cincinnati Railroad Comasy after filing his declaratory pany, Ohio corporations; the New York CenIt was shown, however, that tral and Hudson River Railroad Company, a *** were from July, 1869, to New York corporation, and the Boston and Alil, and from April, 1872, bany Railroad Company, the Boston and Maine 4. Though he claimed the land Railroad Company, and the Nashua and Worhe and his family resided else-cester Railroad Company, Massachusetts corfear of them, and no sufficient porations. The complaint alleged, in substance, te breedence was offered. It is only that the defendants, being all common carriers, tir umstances that residence away associated themselves together under the name permissible. The settler may of the "White Line Central Transit Company," temporary absences caused by for the transportation jointly of goods from prehensions of violence, by sick- places on or near the Mississippi River to places de presence of an epidemic, by judi- on or near the Atlantic coast, and among others 4 LED or by engagement in the mil- from Columbus, Mississippi, to Dover and Manmrvice. Except in such and like chester, New Hampshire; that while so assoent of a continuous residence ciated together the defendants received at Co18 the settler is imperative. lumbus, Mississippi, from certain persons doing business there, several lots of cotton which, in consideration of certain freight to be paid, they agreed to transport and deliver to the Cocheco Manufacturing Company at Dover, and the Amoskeag Manufacturing Company at Manchester, New Hampshire; that bills of lading were issued by the defendants whereby they acknowledged the receipt of the cotton to be transported over their line and delivered to the respective consignees thereof; that the defendants Kenney, Clerk, Sup. Court, U. 8. have failed to deliver the cotton, and that the -1 C. §. 413; 116 U. 8., 50.

เ

fraud of Dilla in obtaining posthe alleged contract, if any such could have had no effect upon resence after his restoration to May, 1868.

t maintain his equitable dewas entitled to judgment upthe as shown by his patent. Ameth

TILE AND NASHVILLE RAIL-
BLAD COMPANY, Piff. in Err.,

CHARLES W IDE.

ref. C... Reporter's ed., 52–57.)
cara-joint action against several
separate defenses.

plaintiff is the assignee of all claims against
them on that account.

The Louisville and Nashville and the New
York Central and Hudson River Companies
were served with process and appeared in the
State Court. The Louisville and Nashville Com-
pany answered the complaint. In the answer
it admitted the corporate existence of the sev-

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