Record and brief — William D. Andrews, George H. Andrews, Nelson W. Green and Noah J. Parsons, Appellants, vs. George Hovey
Supreme Court brief1887
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V OB 4.
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SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1587.
No. 16.
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WILLIAM D. ANDREWS, GEORGE H. ANDREWS, NELSON —
W. GREEN ..ND NOAH J. PARSONS, APPELLANTS, ad
Us,
Se te “
GEORGE HOVEY.
ee AO RgP em querngy
, Me
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF IOWA.
FILED OCTOBER 29, 1583.
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CeCe sat S2-+ of ft ei = §
SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1887.
No. 16.
WILLIAM D. ANDREWS, GEORGE H. ANDREWS, NELSON
W. GREEN AND NOAH J. PARSONS, APPELLANTS,
US.
GEORGE HOVEY.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF IOWA.
INDEX.
Original. Print.
namesom tommitied in printing). i..0- 0. ~~~ sate sneee coos tan 1
ee MONI oo ores cc ee Se ene ink anes eed eemenenlell 3
Exhibit A—Decree in Andrews e¢ al. vs. Carman_-__- ---. ------ 29
B—Injunction against Theo. A. Carman...-. ..-- ---... 35
C—Decree in Andrews e¢ al. vs. Wright ..-- 38
D—Injunction against Geo. B. Wright -_-- 44
PODER BAG FOUITR 5 ois Ses sons sw ce eos soins 5 ais: Kone Seemed
Amendment to bill
Precipe for default (omitted in printing) ..-..----------. ------ wcciiiles
Motior. and affidavit to set aside default (omitted in printing) .
Order on motion to set aside default, &c. (omitted in printing). -_-.. se
Motion for preliminary injunction (omitted in printing)
PE Te ia aii vn A icon ake saison stairs cow toch ema Ske a acta 73
Replication — ..---- (cian inch alee aegetlanls lain wines aorta ae
Order denying motion for injunction (omitted in printing) 112
Opinion on motion for preliminary injunction (omitted in printing)... 114
Order for continuance (omitted in printing)-.--..------.---.--.---. 118
Order granting leave to amend answer 120
Defendant’s cost bill on injunction (omitted in printing) 122
Motion for leave to amend answer 124
Amendments to answer-_~-_---. -----. 127
List of wells made by defendants._-----. -... ---. ------------------' 145
Notice as to proof of prior use -..__- -_-- 153
Notice as to testimony of Ross et al.__.---.---.--------.-~ ---.--— 156
Tl I Sallll eS Bowman
JupDD & DETWEILER, PRINTERS, WASHINGTON, AuGusT 11, 1887.
If INDEX.
Motion to extend time to take testimony (omitted in printing) ---~~ i
Affidavits in support of motion to extend time, &c. (omitted in printing)
Defendant’s statement on application for time (omitted in printing) ~~
Order enlarging time to take testimony (omitted in printing) —------
Notice of motion for order to compel payment of costs (omitted in
a ee ac cia eens clabielas
Motion for costs on injunction (omitted in printing)
Affidavit of Geo. Hovey (omitted in printing) — —~--- -.-. -----. ----
Order to tax costs, &c. (omitted in printing) -. .. .... .-.... ..... ....~-
Motion to extend time to také testimony (omitted in printing)
Affidavits on motion to extend time (omitted in printing
Motion by defendant for postponement (omitted in printing)
Affidavit on motion for postponement (omitted in printing)
See UN COUT Oi a iis he eens omen ae
Order extending time to take testimony, &e. (omitted in printing) ----
Motion to extend time to take testimony (omitted in printing)
Affidavit of Jed Lake (omitted in printing)
Order fixing time for hearing of motion to extend timé (omitted in
a ie ci este: liv ahiaetenanieiw, Seon anal in de NN
Affidavit on motion to extend time (omitted in printing)
Order on motion to extend time (omitted in printing) -..-- -.----- ----
Affidavits on motion to extend time (omitted in printing) ~--.--. -.--
Motion to extend time to take testimony (omitted in printing)
Affidavits on motion to extend time (omitted in printing) ----.------
Motions to suppress depositions (omitted in printing) ---------------
Affidavits on motions to suppress (omitted in printing) ~-.------ .---
Order extending time to take testimony, &c. (omitted in printing) ---
Complainants’ trial notice (omitted in printing)
‘Motion to set case for hearing (omitted in printing)
Order as to additional security for costs, &e. (omitted in printing) ---
Complainants’ trial notice (omitted in printing)
Defendant’s trial notice (omitted in printing) -.---.------ ---...--.-
Order setting cause for hearing (omitted in printing)
Onder at to briefs (omitted in printing) ..... ...- 265 Looe os kee
Motion for decrees in other eases, &c. (omitted in printing)
Stipulations as to proofs in other cases, &c. (omitted in printing)
Motion for security for costs, &c. (omitted in printing
oie: Of PWAES BRING vn cei siten oie oka ween
OG DIICG wc sek ans dibs ines hbin be ee nek Ses
Dissenting opinion of Judge Nelson~
Ry OD ane ie cin hk nn Kein eno new a | BORER aRe ne
OE BATT GION os sisi et adn Sc en be a ie
Appeal Tn
Citation
a A I Or a
Se OOS aaiicinis os Kt nti we re oes Ke el ee
Caption to depositions (omitted in printing)
Stipulation as to notary (omitted in printing) ----
Evidence for complainants bisa heonit ahaa. shai sc dk ie acaba
Testimony of George Hovey -
Bhs hs BROVOG ccc dcsn) sede oe -
Anton BARON ii cw ec nk a a
A. i. Trask...
Original.
159
162
209
215
215
219
223
228
230
232
345
344
399
399
308
861
365
629
634
636
638
644
646
649
651
654
656
667
672
688
695
697
698
700
708
709
710
712
713
715
715
801
812
814
Print.
INDEX. III
Original. Print.
Notary’s certificate (omitted in printing) —
Testimony of D. W. Hovey 123
Notice to take testimony, &c. (omitted in printing) —
I OE Fe a, FI ais chiki ith es tees ge ee ee 3 141
a io rie ti ancient aegis cence peel scene snes é 144
G. W. Brown 145
Notary’s certificate, &c. (omitted in printing)
Testimony of Thomas Dobson
Nate Stanton
I a eileen eres epntinss sepwinrn, 1 ee eeeniorin
oS
ed
co)
-
me
DW CO |
° oe
~I Gt ~]
sn
Ce TAI alin cos ee aati i i emote me te accra
Exhibit A—Reissue Letters Patent No. 4372 granted Nelson W.
ei, Be Fre casein. acsaitk sie nies iach reese i 168
Exhibit B—Assignment from Nelson W. Green and Wm. D.
Andrews & Bro. to Noah I. Parsons, Oct. 15, 1878 914 169
ey OE FO oa ie Silence esti th eile thn ith ns Sei 170
We Sy ia ia dik rns 440s Gino 932 175
Andrew Thompson -- 176
Bi pntiraee Seta xn so i cc eens oe pis 2 179
A. W. McClellan 182
186
TN TG | I iss cnn pi nse ceisincein seria einen
Fn SET AO ME OL 962 190
EF BI iii ters ececnine shibiiciinn 193
SN Te IN sce 4m sie tin 96§ 195
ne nin isn, acenidiein eevee 197
I a 199
i. cake aaa uw epee nines 202
ee Ee ae EERE 205
i a en 206
990 209
992 eee
I NE ook ie ge mee Menigalenn onal
Notary’s certificate, &c. (omitted in printing) -.-. -.-------- .---
Testimony of H. C. Morehead 1003 210
J. M. May 1009 214
Notary’s certificate, &c. (omitted in printing) ---------.--....-. 1013
Exhibit A—Reissue Letter Patent No. 4572 granted Nelson W.
TR, FP i RE a ee sneer agintnien een
Exhibit B—Certificate of Patent Office ._.............-... ......' 10382
C—Assignment of Green et a/. to Parsons, Oct. 15, 1878. 103:
D—Decree in Andrews e¢ al. vs, Carman ‘i 1042
E—Injunction against Carman -__--. -----. -----------. 1049
F—Decree in Andrews et a/. vs. Carman__-. ----.----. 1053
G—Decree in Andrews ef¢ al, vs. Wright-----.. ---...-. 1060
H-—Decree in Andrews e¢ al. vs. Wright._.. -.---..--.- 1067
I—Injunction against Wright ; 1072
J—Decree in Hines et al. vs. Wahl__- 1078
K—Opinion in Green vs. French ._....-. -.-. .--.---. 1085
Testimony of Wm. D. Andrews 1099
I cae silk “nilioesen arom oon thane Amides.)
Rene Comat © Co. CRTOUIIT . 8c. cn. ene cevecsesssceense AUG
Notary’s certificate, &c. (omitted in printed) ; 1148
Stipulation as to testimony (omitted in printing) ----.---------- 1151
INDEX.
Testimony of John Q. Royce.... ..-- .--. ----
Notary’s certificate, &c. (omitted in printing)
Zeatsmony of Charles Bron... u..onn oc settee see ses ie ere
Notary’s certificate, &c. (omitted in printing) ~------ .-----------
Testimony of Adelbert Brown... ..... ....... ..... -.--- ‘
Rene Wl , BUR icin ime is Rak aera dines
peneny OE Tin: FE Tmt ais sk en tee Stewie eee
GR es Si hd nd Ra OR i alee ee
Ss i AE ilcniniintic sistas: decease tatealaila A cates eels onde
Oe A I sick ees ied oe cineinl Ce
Wm. O. Barnard. -.--- sieht
Notary’s certificate, &c. (omitted in printing)-----. ---- --------
memteaneny Of J. OE. CON ona ons een ow on chs i
Notary’s certificate, &c. (omitted in printing) --.--. -----. ------
Pans 0k Dei WEG aici, ccc ect ee sn Se peat
Bhs We I ia te i Bs se No el ee cele
i Fl i cia etek esp ible Menno
Notary’s certificate, &c. (omitted in printing) -.-.-------- ---- ite
NS OT FOR DARD ci. ccc sie necntneiekicxdeiainbcdianes
Exhibit A—Newspaper articles_ .-- .-- ---- ---- sass
Notary’s certificate, &c. (omitted in printing) -- Wacice
eetreey Of Tmene is cisik eet oie sew
RET FTIR on ins ee tieeriin eek pace ee econ
Se Be, IOs iit nto teased een enslal capi
Pe TROON i isccbcen eee a ni es es
Notice to take testimony, &c. (omitted in printing) -
INT OF DORR Tis TOO ~ wiineritntenst cic «min nao iel iaeaions
ER I iin iinitees: sacks dive nletininh abit Mh ease Whee
Exhibit H. W.—Letter of N. W. Green to H. Ward, January 3,
____ RCRA IO PORE MG MEN RSI ON ea) Ss AF TE NCR? IO
Exhibit H. W., No. 2—Letter of Commissioner of Patents to H.
Ward, March 9, 1866, &c. .... ........-
IE OE ae NU Bh SR iia iis cao cciee wien cen ees ae
Notary’s certificate, &c. (omitted in printing) ..-.-.------.. =e
CRN OF ak CRN OD, TENOR aioe: ci sinaccenls nisin oka sentins
OE Fe sind se eentin Sea tee ii
CI Bc HIG cei since a Sets ons pied aie
John Vandenburgh -_--_- sensi aides .
WF 5 a IN cise neice os ei ucnicsh eskeni ladle Neliiassiaie
CRRRG OU ER TOI isi ik sects tite aes
Notary’s certificate, &c. (omitted in printing)---- .---. -.-.----
ES OT ONG FE. TEI oie neers deed ean ben ens
NT I ain 5 oe isha ses Sian es ann eatin
Notary’s certificate, &c. (omitted in printing) -----.-.---. .-....
Testimony of Matthias Vanhoesen-___...-_- siete aiiacan ialesboleseealaai aan ie
RO I ee ia recited cacti ccs access She leo islestaeinan
Gerrit S. Vanhoesen a nat
John Vandenburgh--_-_- >
See Th I ois hd ise
nn Fay ii isk Mire Bib see edad scenes
Notary’s certificate, &c. (omitted in printing
Testimony of Nicholas B, Haynes: jin.5- 2c kk cide etidaice
Original.
1153
1163
1168
1179
1196
1207
1217
1226
1238
1243
1250
1265
1271
1288
1296
1301
1506
1309
1313
1321
1324
33
1835
1348
1352
1356
1363
1569
1372
1376
1379
1388
1399
1434
1448
1462
1468
1475
1486
1496
1501
1523
1582
1542
1546
1549
1552
1556
1560
1569
Print.
258
262
269
275
281
284
292
294
298
304
315
318
320
$22
326
328
oO)
vv
340
0435
346
549
Oe
INDEX. V
gk. Original. Print.
Notary’s certificate, &c. (omitted in printing) ---. .------------ 1575 —
antiniais aE Gitink PE goss St stew wth eee 1577 446
em: i, CI rile nerd eee cee hee ees ce TE 452
Mrs. Emma Share Aisi lak ins naisehislianiealion 464
~~ e PN 5 INE tise ave etrse en cig Snsinsene shiner cic es orlnai anicie = 467
\ Notary’s certificate, &e. (omitted in printing) -----. .--- ---- ---- 1642 —
NIE 0 NINE TRI niin ees ces eerierie oaninsin Sn ann SO 476
wa Notice to take testimony, &c. (omitted in printing) WwW - ------ 1719 —
ae Tetmaons of Chester P. Burd ..... .... ...... -.~. .... —- sa ites 1722 524
y I ir aninined ssesecpeinr minced asi idicdnaaln plait 1749-89
ified ; Notice to take testimony, &c. (omitted in printing)._-.--- --.--. 1760 os
Stra Testimony of Ambrose J. Armstrong - -.-. ..-. ...-<. .... ....... 1765 545
I Te asia idee ncn oe reser woe desea a nnd 1772 548
James O. McClure. _-.-_-- an i: sm tic sian ai 1784 555
Lucetta Windsor i Siler sical il stalin leant 1788 558
Notice to take testimony, &c. (omitted in printing) .-..---.-.... 1791 a
ie. as Testimony of Nelson W. Green__~~~-- .--- bites teens See 559
oe: IL Ti Tiss in Sitio iets iesenhen ‘ero nro 1869 605
. i cities cst reine weed eae 611
Notice to take testimony, &c. (omitted in printing) - 1889 —
Testimony of John Fargo. ._-. Sc liga ak: cia oilaanleibia acta 1894 618
RE Te cities ck: armen mater isles end ict 1926 638
i FE I iit ots vicina emis die ecien eine 646
4 RR TTI arisen ti teed senate ‘nico 1945 649
Notary’s certificate, &c. (omitted in printing) ~~ ---~ ‘esate -.. 1959 —
oe ID OE I: TIO iiss entice sient leitd Serica caching ak seeeiattn ve A 658
IT TORII incense teenrrtenia escent estas tarasenisaial 2013 682
PO Ty FURS Be ils sist etree astm atta aha lias Witenes 2087 729
James S. Squires... ---- icicten ni mca “ae 747
WE, RIES decincine wscinmtions somes ain ween eee 767
: Seem T.. Ti i iia seis acennts Si ae elnine: 776
POE Ex: IG iss sited cian Wik ni ni aan iia einai a 799
i I Te I ict isis cerned eine cai: Sap wigan 2274 833
be fi Notary’s certificate, &c. (omitted in printing) ---. ---. .----. -- 2344 —
i ee | | eC Dn INES nD PA m - 2355 872
I FEE i sin, icine nnd arn be ndinticaean 2363 878
a DeWitt C. MeGregor- ._-- eee we 2370 885
POG Th I ooecennn enim ian caece 889
RN IIE a cen cso ania tier dick a cinbiag Dak wks ictal 2388 894
» = EF GER OOIOD: nicer iinet nominee instbino 2400 902
I: a ON iin icsectiadjsceovennieie Sdalinid: snc vcaies aeoacbpblen ncdesnee So sensi a 906
NG FT iat sisi ishinins cise. cates Ginkisadt saiciods 909
ca. Oem Stephen D. Freer istth aaeiilis haietiksa dalabacaie = 928
“< Ns Fe I isc aspiracsantt sonics Seah cagailnk daca 2443 932
I IIE iis ince seceniia este soc a Seika 935
Notice to take testimony, &c. (omitted in printing)_.--... ---__- 2495 —
aw: Testimony of Elihu R. Benson_--~-. ----.--_-~-.-- 2504 959
Fs a I ee cscnce mee pti? dnc eal ... 2647 984
. ies Fe ios somninminnicd ne dates dae See 99]
- a Objections to take testimony, &c. (omitted in printing) --.-__ ~._- 2571 —
mS Exhibit Mudge—Pamphlet and advertisement, August 6, 1880. 2586 996
Notary’s certificate, &c. (omitted in printing)-----.------ -----. 2605 1000
VI INDEX.
Testimony of Abner Doubleday
PE I lintian ens ome mene eieeeiins
CRS ag eR a ccs sictien ose cies micieinnh asesncmiaeinnenie
Notary’s certificate, &c. (omitted in printing) .-.. --------... -.--
SS OE FE Be nine ine ein some See ion
John Q. Royce. jeossosal-wplgeson eee
Notary’s certificate, &c. (omitted in printing) -.-. ---.----.----.
Beatimony OF GG. Wy. BOO ce anne ecw ne pili
Evidence for defendant ‘ ili, eh i sega laigediiai
Notary’s certificate, &c. (omitted in printing) ------ -.-.-.-.----
Zestimony Of Timothy Fl. BURG nw. n+ nee os nil eee eon
EE LO ONC NR SEN MR eRe Re
Chancy C. Buxton...........- viola hata
TE Bee a rciisetiee wiereeninien seinen ncidinianin emsiiniannet
mxmiit Dio. 1—- Dieta, FeermAW, Oh. Ee ee cc sca ccine Sen
UNNI TID ci cei caps nscaseannssiign: snipisicgsndiniiien samiiabaidiia siabialeaas
Notary’s certificate, &c. (omitted in printing) . .-. ---. -----. ----
IN OT TE OUOE Eh OIE on sccecescin scenes eines satin Se
Notary’s certificate, &c. (omitted in printing)---.------ sai ilies
pohimony Of Abram Vn DOR BATED q 2.0 ccimnsin sep enw aene
Notary’s certificate, &c. (omitted in printing) ----~. .... -... -.-.
Testimony of John D. F. Woolston. ._.----- sists, inal hacoecolameliinaih
Notary’s certificate, &c. (omitted in printing) ------ sisi is ce eine
Testimony of Henry Woodruff -..__. - polls sc nisl
OTIS ec TIN sien nico sine eoenivins: siete wibicaaieaied Meena
PROREY: TAOS ocak anne swine ene aad iemiaisaend
FOF 6 Be nce ccine sr oin ne cen di tileds
Stipulations as to testimony, &c. (omitted in printing) ..----.--.
Testimony of Julius A. Graham --_--. nensinintnes dca iamiil
POOR Fe TIONG ocincnctcet kk ke i eet eee een
TE AE SO. SOTO. ssn sens sssssnsidionil aioli ok anionic waipeaiaitie
Stipulation as to testimony (omitted in printing) ~ .--.------ ----
Testimony of A | Umea RIR Aarne LOMO NROONC ICT econmne meaatagnre road
ROR TID sas écciniee desk ssh esicieieelinnianes Abeta nepeaiiidnns ic
Stipulation as to testimony, &c. (omitted in printing) -....-----.-
Testimony of Edwin W ilber ONO R RAMAN ROR RTS OI, BEEN 4 8 aR
I Dk. TIO x vee: wecicaniesti: aaionies lenin pad shaban aids
SRA WE SLOT: (ROCIO) aes: sisinsen nein omeneeciitians
Stipulation as to penmnny (omitted in printing) ......04 .~.+ «-<<.«-
nemmeony of Chas. Fo Waite - 5 a8 ce cui sees ies
Notary’s aa &c. (omitted in printing) .-.incend xncnen ones
ereeneny Oat I I iii cdi caoues baad a tN ta
Di Ths, SRO. « ncn twin: waist pe hiewns
iia i iii
I IG iiicin: as icine biinicitsth iia eit ii
as aise: in es a
Thomas Dobson -. - eo eee
CA RA seine si ssiisoire ehtaialili siipsiia ni nciaalapiaen demeseiiigenis
Notary’s certificate, &c. (omitted in printing)-------. ..-. ------
Notice to take testimony, &c. (omitted in printing) 6: aint lis
Tostioony. of db. 2). 2s, Fe OO ia cet rnin wi isan See hee
Brey NIG aici sk siete cat senha ea. sili en
Original.
2612
2621
2651
2658
2670
2829
2842
2852
2879
2880
2885
3019
3132
3211
3229
3230
3232
3237
“366
33868
3490
3493
3500
38509
3549
3559
3604
3616
3620
3645
3667
3773
Ota
38815
3828
3830
3847
3857
3886
3887
3907
3911
3929
3947
3954
3960
3962
3966
3969
3972
3978
4003
Print.
1003
1018
1023
1094
1101
11138
1113
1170
1220
1258
1268
1268
1269
1307
1344
1346
1361
1362
1375
1379
13888
1396
1429
1442
1446
1451
1456
1463
1469
1478
1486
1489
1492
1493
1494
1496
1503
ae en ie Oe
i
;
ee
INDEX. Vil
= ‘ : Original. Print.
Testimony of Calvin H. Haynes ..~... ....-.-.-------. ...----- 4052 1518
: Ne MIN gic = id i tk pases alin seems Seen Soa 4154 1539
es ei a i cee ee en ee 1541
er: Seems Bee. nn on Scien wes ce snen, SI 1550
TI: GN ios iiss irs come recens weteae tae 4219 1550
Notary’s certificate, &c., &c. (omitted in printing)-.---- ----- -- 4239 ~
Testinsotey of Robert Conine qua. 202 ne cs Sie ss ee AT 1566
“os ee I A I iid ric etdn cond cudineoln coe 1568
ee Exhibit A—Letter of Klock to Suggett, March 5, 1880 _.--..--. 4269 1569
°
i Exhibit No. 1—Article on “‘ Boring Wells’? -----~ ---- .--. ---- 427 1569
aI Exhibit No. 2—Article on ‘“‘ Earth Borer ”_..._-. .-.. -... ------- 4275 1570
ed Notice to take testimony (omitted in printing) -..--- (als oral aii elas 4277 -—
Testimony of E. S. Hovey -.--. -.-...- ab ieinccaaa sostians 4279 1571
Be I iaiinial Sai eieis Shek od ees Sons Se 1573
i TI sik sien Saat wetness ce ee 1575
ae I eka ea ithe 6 tii ects Se een: 1581
a Di oak oe niece ananassae’ eee 1581
rs Re ricci. die Se Ail eens cnniniin een ee 1586
; S. M. Marquette ‘iiadint cmon Saas 1589
ey I eiiick bia a iis aie een eek ORE 1590
I OE nrettit eik, Sten oe w ares ace 4321 1591
Orlando Cobb “ Liinlen-sopebiini tania aeiieien: ae 1594
ce * Exhibit—Copies of entries in Cobb’s account book .__. ---~-- -.-. 4333 1597
i Exhibit A—Deed of Hageman et ux. to Jordan, Sept. 16, 1862_-.. 4335 1598
FE Notary’s certificate, &c. (omitted in printing) .----- ---.._-...-- 37 —
4 43 1599
)
354 1603
368 1609
ives W. MeGafer ......... . ........ sta
45
45
ES OE Cutnee b. FI asic icin ins Si ccs <n eee,
43
Article from Reese’s Cyclopaedia on ‘‘ Borer in Rural Economy” 43
Notary’s certificate, (omitted in printing) —-- -- ae waddelbimeaaiein abiian 4897" -
ets OE Ts CORD isi sinc ose cc oeen donk eewans. SO 1618
a Notary’s certificate, &c. (omitted in printing)-...---- cabal nti oe —
A I TN soe ok crus de Kees See ne 1620
RE FENG iit cient See 1652
at I TION ik ie ites etnies walla pee Salma nin 1671
7 Cats F.: BRORP IE cnn gens .-.. 4563 1673
' Pewee Wiamnatn (FORO) isi inn isin cen actin enn 4569 1676
I Six ae iin see as ania ani Nate a ee nek. Se 1677
es NE 56s. ccicn oe ban cae ee 1678
1 Ss I oa eins Sinn peek Man beak ace cn eee 1689
ai ee ie a icc ies hc ie el nian ce Se 1693
I Tr IE ivi telcitina ik Aiiniks Waiinddns ns ees 1697
Un i SN iii ci circa eel ae diane wuieta aonieal* 1700
a ee i bag: 1703
eS i a I isnt niin leaks “echinacea. Welk dina cade cece 4637 1705
ics Ae ica: it sink basen nw <3 1707
Te IE Sistas Sins ede le nn ke 1710
a : Wh i ois ki ies Se 4668 1717
es acacia Gi cit aries e sia gal a 1718
? Geo. A. Williaims ...-_. 4683 1723
pe iT i iis caste nga ciniiead acaaetiaiuas nnmanes' a 1724
Be Te E iitiind siinictind nines ke oan SE 1730
ie Ti ith ite tie e's io ae 1751
INDEX.
Vill
Aemtimony Of BT, TT sdittink enced emnian cna tae enews
Ds Bs BRE ice cies ond cee
PES VOT TEMPO 6 piste ssn noes keen
Stephon Fi. FIRS ono cs cen axe eonciinne
We. Bhs Re SOOO cccine aus enn
hn Be SE cdi ann
WE EY | sch, serine ak tial cect sale loti nineteen apnea
Bo Os TO vicke ce oe nee
Bo: CA i sich shat isin hase evi
REE, COIN ak cecil ciate det binant alone
DR ick oc een sie eee. sien
George Warne (recalled) -..--. .-----
EIOPALIO BIFRAE in ne nce « 5 laa wales a
SORT PS. BANE vnciameninn becatinn .
A TA POS os as Bee sila i tii sdctncadsone abana
I. Jd. Marinus (reoRted) —....06. canna -
Do Mh. GRE ok ew dens Kee eed aie elem
Exhibits offered -_--- dasa sso aie slags: tslaleies siodiaaaak: abode aeaeeael Seman acaba
Destsmony Of GO BAe iis nises naesanns pcan nt hier nite wie tee
John H. Campbell
SS. 3. AD Nemy CTI) access essen teria sess cee
H. F. Sill hess siniieteapiideg asic elaaie ieeaeiedl sini
OD. Fs Ae RE geen ln aes id he kd le
OD, a Re icdis cca erenien nh callie ential waite
OE I ais sin os sesiinssasiins senna hoses aeons
Notary’s certificate, &c. (omitted in printing)
Testimony of BETS. BOGUS FAROE aoc ons 6 ics a sae eines
Notary’s certificate, &c. (omitted in printing)
POeONY OS Clone FAI og recieved coma enw
POSCD DB. TUN: cin Knee -
George Hovey .--. .... -- iis dani sitesi
George Mann ____~— hana
Thomas Sherwood -_-----. Spammer .
SR Te se iia in iar eae nid nh dna
OIE ii i i sad cs as
D. 8. Deering ._-- sisacieusis (is Uasacseabeeaecad
eon TT a
RGRet: FE. BER ae. a cine tine Rede en ee
UE ini es a
Exhibit A—Bond of Baxter Adams, &c. -... ....~-.-.-. Miealed icc
Testimony of J. J. Travis iiss saamibeabinasanaias ties aia a oa ae
Bi Tc iii i
unstated i ii ig i ca cilia seek acaiwianainne
Notary’s certificate, &c. (omitted in printing)---~-.-.---.----_-
Defendant’s Exhibit in rebuttal No. 1—Letters Patent No. 52267
granted Melvin C. Chamberlin, Jan. 80, 1866 __.
Teationony of 0. °F. RARE vo css ace ames seen Sie nek edna
Exhibit A—Affidavit of C. T. Kimball .-2. .... -.2.
Notice to take testimony, &c. (omitted in printing) -
Tealimony of danced Rick |... cccwes nimn sais conn Lek a
Notary’s certificate, &c., &c. (omitted in printing)... .... __.
rachel Kimball ...2-. PMN ee pF PORT sae
Original.
4781
4797
4805
4815
4832
4839
4843
4854
4864
4870
4882
4893
4900
4906
4913
4918
4923
4926
4928
4930
4940
4946
4949
4952
4959
5001
5037
5040
5050
5057
5073
5084
5096
5109
5113
5120
5141
5151
5159
5167
51738
5175
5183
5188
5201
5208
5216
5243
5247
5250
§255
Print.
1764
1769
1772
1777
1782
1786
1787
1792
1796
1798
1803
1808
1810
1812
1815
1817
1819
1820
1821
1822
1826
1828
1829
1831
1855
1849
1863
1868
1874
1879
1885
1890
1892
1895
1905
1909
1912
1914
1916
1917
1920
1921
Testimony of a ae
rr A ctecertll sine heap oneiaiin
ik ices ncaa Baten
a, NN NOON ook es ke ce stew Rowen
lila a kn eset tine iene
a ew gable mwonainn
EC aseameh Degen. ro elie, Hatin! oa ehh aes
Artemus Reed ______- ee as ore Sh Re YOR
Notary’s certificate, &c., (omitted in printing) ..... -----. ...----
Testimony of David 0; Crofeot -. .. .......0. .1.... is teth caopomie
Exhibits 1,
Oe a ie oe wh altbuabdibine wedge ow
2. & 3—Memoranda as to dimensions of wells ~.__.--
Kvidenece from case of Andrews ef al. vs. Cone _ .._. -_--. -- eee LE.
Evidenes for complainants a re dae REE ae ene ee ee eee
Festinony of ZAcharian Omit: oo. ncaa <n ewe --
i iia sist dene gos Kee
ee eg ae
Evidence for defendant -.---- AT) ENON oR EE i On
Testimony of Aleert ©. Mow. .... nce cae oon -s se
Commer Beoen ........ ... ...... ~~ ee ass
James Suggett ...---- scliactik: sasahlasien Ghent stati
BR 2 gE aes ee
sR rs I i
i Te his aes wii me Ss
Preliminary stipulation as to omissions in printing record, &c.... --
Supplemental stipulation in regard to printing and addition to record
Original.
5262
5450
5466
5472
5478
5905
5909
IX
Print.
1947
1971
198]
1984
1995
2006
2010
POLS
2017
2018
2036
2037
2037
2037
2037
2045
2049
2051
2051
2067
2075
2102
2107
2114
2145
2144
.
‘we
we
—.
LR IE ES COTM AE ONT i PF RIS SW NE ~ ; eer ey ens i bros pate Ba I ae, Poy
ess Fa = 2 . :
>
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 1
1-3 In the Circuit Court of the United States for the District of
Iowa. In Equity.
To the honorable the Judges of the circuit court of the United States
for the eighth judicial circuit within and for the district of Lowa:
William D. Andrews and George H. Andrews, doing business in
the city of New York, in the State of New York ; Nelson W. Green,
doing business in Springfield, in the State of Massachusetts, and
Noah J. Parsons, residing and doing business in Cedar Rapids, in
the State of Iowa, bring this their bill of complaint against George
Hovey, residing in the county of Buchanan and in the district of lowa
aforesaid ; and thereupon your orators complain and say, the said
William D. Andrews and George H. Andrews and Noah. J.
4 Parsons, on information and belief—
That said Green was the original and first inventor of a
new and useful improvement in wells, fully described in the letters
patent hereinafter mentioned, and which had not been known or
used before his said invention, and which, at the time of his appli-
cation for a patent, as hereinafter mentioned, had not been for more
than two years in public use or on sale with his consent or allow-
ance.
And your orators,on information and belief, further show unto
your honors that said Green, being so as aforesaid the first inventor
and discoverer of said improvement, and being also a citizen of the
United States, did, on the 14th day of January, 1868, upon due
application therefor, obtain letters patent of the United States
for said invention in due form of law, under the seal of-the
Patent Office of the United States, signed by the Secretary of
the Interior and countersigned by the Commissioner of Patents of
the United States, bearing date the day and year last aforesaid,
whereby there was granted and secured to said Green, his heirs, ad-
ministrators, or assigns, or intended so to be, for the term of seven-
teen years from and after the date of said letters patent, the full and
exclusive right and liberty of making, constructing, using, and
vending to others to be used, the said invention and improvement
as set forth in said letters patent, which are now remaining on
record in the Patent Office of the United States, and by virtue
whereof said Green became and was the sole owner of all the
6 rights and privileges granted and secured, or intended to be
granted and secured, in and by said letters patent.
And your orators further show unto your honors that said Green,
having for good and lawful cause surrendered said letters patent to
the Commissioner of Patents, and having made due application
therefor, and having in all things complied with the acts of Con-
gress in such case made and provided, did, on the 9th day of May,
1871, obtain new letters patent, being for the same invention, for the
residue of said term, and which were marked “reissue No. 4372,”
and were issued in due form of law, under the seal of the Patent
Office of the United States, signed by the Secretary of the Interior
1—16
1
2 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
and countersigned by the Commissioner of Patents, and bear-
7‘ ing date the day and year last aforesaid, as by the said last-
mentioned letters patent or a duly authenticated copy thereof
ready in court to be produced will more fully and at large appear.
And your orators have ratified and adopted said reissue.
And your orators further show unto your honors that by virtue
of a certain mesne assignment duly executed the said Green did, on
the 3d day of July, 1871, assign and transfer to your orators, Wil-
liam D. Andrews and George H. Andrews, the undivided one-half of
all his, the said Green’s, right, title, and interest in and to the said
invention as secured to him by said letters patent, including certain
rights which he had theretofore excepted and reserved to himself from
sundry mesne assigninents by him to others before made,
8 which said instrument was duly recorded in the Patent Office
of the United States,as by said instrument or a duly authen-
ticated copy thereof and of the certificate of said recording thereto
affixed ready in court to be produced will fully and at large appear.
And your orators further show unto your honors that by virtue
of a mesne assignment duly executed the said William D. Andrews
and George H. Andrews, as the firm of William D. Andrews &
Brother, and the said Green did, on the 15th day of October, 1878,
assign and transfer to your orator, Noah J. Parsons, the undivided
one-twentieth part of their right, title, and interest in and to the
said invention as secured by said letters patent, including all
9 rovalties and damages which have previously accrued and re-
main unpaid in and for the State of Iowa, excepting in the
counties of Polk, Dallas, Iowa, Tama, Woodbury, Monona, Des
Moines, and Cedar, and reserving the exclusive right to dispose of
the same to the United States for military, naval, and cemetery pur-
poses, Which said instrument was duly recorded in the Patent Office
of the United States, as by said instrument or a duly authenticated
copy thereof and of the certificate of said recording thereto affixed
ready in court to be produced will fully and at large appear.
And your orators further show unto yours honors that by virtue
of the said letters patent issued to said Green as aforesaid and of the
mesne assignments, as hereinbefore recited, and by virtue of other
various mesne assignments by, to, and from the said Green
10 ~— and others duly made, executed, and recorded in the Patent
Office of the United States, as by such instruments or duly
authenticated copies thereof and of the certificate of such recording
thereto affixed ready in court to be produced will duly and at large
appear, your orators did by virtue of the premises become and now
are the sole and exclusive owners of said letters patent and inven-
tion, and of all the rights and privileges granted and secured, or
intended to be granted and secured, thereby in and for the county
of Buchanan and district of Iowa.
And that since they became the owners thereof as aforesaid they
have invested and expended large sums of money and have been to
great troublein and about said invention and for the purpose of carry-
ing on the business of constructing said wells and using the same
11 and making the same profitable to themselves and useful to
Sn a he Re e
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 3
the public, and that said invention has been and is of great
benefit and advantage, and that wells were constructed and made
according to said invention and sold by said your orators to great
advantage to the public, and that the public have generally ac-
knowledged and acquiesced in the aforesaid rights of your orators;
and your orators believe that they will realize and receive large
gains and profits therefrom if infringements by said defendant and
his confederates shall be prevented.
And your orators further show unto your honors that your orators,
in connection with Orlando Bennet and Platt Conklin, being ha
owners of said reissue letters patent for the county of (Queens,
12 in the State of New York, did, in the month of April, 1872,
file a bill in the circuit court of the United States for the
eastern district of New York against Theodore A. Carman for in-
fringement of said reissue letters patent, and praying for an injunc-
tion and an account; that said Carman appeared in said suit and
filed an answer denying infringement and setting up that your
orator Green was not the first and original inventor of the invention
patented by said reissue letters patent, and alleging that before the
invention thereof by said Green the same had been known to and
used by many persons in different parts of the United States, and
had been described in patents and in many printed publica-
13 tions; that said Green had forfeited his right to a patent by
said invention haying been in public use and on sale for
more than two years before his application for letters patent there-
for; that said Green had abandoned his invention and dedicated it
to the public, and that said reissue letters patent were for an Inven-
tion different fromm that described in said original letters patent, and
were therefore null and void.
That your orators filed a replication to said answer, and a very
large amount of testimony was taken on both sides, the record on
the part of your orators amounting to more than fourteen hundred
printed pages, and that on the part of the defendant amounting to
more than twelve hundred printed pages, the taking of said
14 testimony having been commenced in June, 1872, and con-
cluded in November, 1873
That said testimony was taken at many different places, among
them at Detroit, Mich.; Chicago, Il].; Amherst, Mass.; Middletown,
Ct., and at many cities and vill: ages in the central and western parts
of the State of New York, as well as in the city of New York, and
witnesses were brought from several adjoining States and the Dis-
trict of Columbia, and that the evidence comprises the testimony of
about one hundred and seventy witnesses.
That said suit was brought to a hearing on pleadings and proofs,
and was elaborately argued by eminent counsel on both sides,
15 the arguments consuming many days in delivery; that said
suit was taken under advisement by the court, which there-
after rendered its decision, giving an elaborate opinion, overruling
all the defendant’s defenses, holding said reissue letters patent valid,
and directing a decree for the complainants in conformity with the
prayer of the bill of complaint for an account of profits and dam
4 WILLIAM D. ANDREWS ET AL, VS. GEORGE HOVEY.
ages, which decree was duly entered, a copy of which is hereto an-
nexed, marked Exhibit A, and directing a perpetual injunction,
which was duly issued, a copy of which is hereto annexed, marked
Exhibit B, as by the record and proceedings in said suit now re-
maining in the office of the clerk of said court or a duly authenti-
‘ated copy thereof will appear.
16 And your orators further show unto your honors that since
said adjudication numerous injunctions have been issued by
said court against persons using said invention in infringement of
said reissue letters patent. |
And your orators further show unto your honors that your ora-
tors, William D. Andrews, George H. Andrews, and Nelson W.
Green, being the owners of said reissue letters patent for the county
of Hennepin, in the State of Minnesota, did, in the months of No-
vember and December, 1876, and January, 1877, file separate bills
in the circuit court of the United States for the district of Minnesota
against O. E. Spear, Joel B. Bassett, Sweet W. Case, Stephen Pratt,
Robert L. Pratt, William L. Nichols, Anthony Kelly, George
17 B. Wright, and De Witt R. Wagner for infringement of said
reissue letters patent and praying for injunction and account;
that the several defendants appeared in the said suits by the same
counsel and each filed the same answer denying the infringement
and setting up that the reissue letters patent were false, fraudulent,
and untrue and not for the same invention as patented and claimed
in the original letters patent, and therefore void and of no effect ;
that your orator Green was not the first or original inventor of the
invention patented by said reissue letters patent, and alleging that
long prior to the invention thereof by said Green the same
18 had been described in certain letters patent, applications for
letters patent, and in many books, pamphlets, and publica-
tions, and that it had been long known and used by many persons
in different parts of the United States; that said Greene had _ for-
feited his right to a patent by reason of the invention having been
in public use and on sale for more than two years before his appli-
cation for letters patent therefor; that any letters patent issued to
Greene were obtained by fraud and deceit, and that 7f he had aban-
doned the invention and dedicated it to the use of the public.
That your orators filed replications to said answers, and the court
permitted the several defendants to unite their defenses, the
19 evidence taken in one case to be used in all; that the suit
against George B. Wright was selected for trial and a large
amount of testimony was taken, nearly sixty witnesses having
been examined, in five different States, during the months of
August, September, October, November, and December, 1877; that
suid suit was brought to a hearing on pleadings and proofs, the en-
tire evidence in the previous suit against Theodore A. Carman was
submitted to the court, and the case thoroughly argued by able coun-
sel in December, 1877; that the said suit was taken under advise-
ment by the court, which thereafter rendered its decision, overruling
all the defendant’s defenses, holding said reissue letters patent valid,
BT RINT BEY Ne ne eg
ws’
Pad
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
and directing a decree for complainants, in conformity with
20 the prayer of the bill of complaint, for an account of profits
‘and damages, which decree was duly entered in each of the
several cases, a copy of which is hereto annexed, marked Exhibit C,
and directing a perpetual injunction, which was duly issued, a copy
of which is hereto annexed, marked Exhibit D, as by the records
and proceedings in said suits now remaining in the office of the clerk
of said court or a duly authenticated copy thereof will appear.
And your orators further show unto your honors that since said
adjudication by the circuit court of the United States for the district
of Minnesota large numbers of injunctions have been issued by said
court against persons using said invention in infringement of
21 said reissue letters patent, yet the said defendant, well knowing
the premises and the rights secured to your orators aforesaid,
but contriving to injure your orators and to deprive them of the
benefits and advantages which might and otherwise would accrue
unto them from said invention after the reissuing of said letters
patent as aforesaid, and your orators becoming the owners of said
reissue letters patents in, to, and for the county of Buchanan and
district of Iowa, and before the commencement of this suit, did, as
your orators are informed and_ believe, within the said district of
Iowa, without the license or allowance and against the will of your
orators, and in violation of their rights, and in infringements of the
aforesaid letters patent, unlawfully and wrongfully and in
22 defiance of the rights of your orators make, sell, and use wells
embracing said invention in the counties of Buchanan, Lima,
Johnson, Muscatine, Wapello, Black Hawk,and other places to your
orators unknown, all in district of Iowa aforesaid, and that he still
continues so to do, and that he is threatening to make, sell, and
use the aforesaid wells in larger quantities and to supply the market
therewith, and to continue to use the wells as constructed by him,
all in defiance of the rights acquired by and secured to your orators
as aforesaid, and to their great and irreparable loss and injury, and
by which they have been and still are being deprived of great gains
and profits which they might and otherwise would have obtained,
but which have been received and enjoyed and are being re-
23 ceived and enjoyed by the said defendant by and threugh his
aforesaid unlawful acts and doings.
And your orators further show unto your honors, on information
and belief, that said defendant has one or more of said wells and is
now making the same and has made and realized large profits and
advantages therefrom, but to what extent and how much exactly
your orators do not know and pray a discovery thereof; and your
orators say that the use of said invention by said defendant and his
preparation for and avowed determination to continue the same and
his other aforesaid unlawful acts in disregard and defiance of the
rights of your orators have the effect to encourage and induce others
to venture to infringe said patent in disregard of your orators’
rights. :
24 And your orators further show unto your honors that they
have caused notice to be given to said defendant of said in-
6 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
fringements and of the rights of your orators in the premises, but
he has disregarded said notice and still continue- to make, sell, and
use the same.
And your orators pray that said defendant, George Hovey, and
his servants, agents, attorneys, and workmen and each and every of
them may be restrained and enjoined by the order and injunction
of this honorable court from directly or indirectly making, con-
structing, using, vending, delivering, working, or putting into prac-
tice, operation, or use or In anywise counterfeiting or imitating the
said invention or any part thereof or any wells made in ac-
25 cordance therewith or like or similar to those which he has
heretofore made or used, and that the said defendant may be
decreed to pay the costs of this suit,and that your orators may have
such further relief or such other relief as to this honorable court
shall seem meet and as shall be agreeable to equity.
May it please your honors to grant unto your orators a provisional
or preliminary injunction, issuing out of and under the seal of this
honorable court, commanding, enjoining, and restraining the said
defendant, George Hovey, and. his servants, agents, attorneys, and
workmen, and each and every of them, as is hereinbefore in that
behalf prayed. :
And forasmuch as your orators can have no adequate re-
26 lief except in this court, to the end, therefore, that the said
defendant may, if he can, show why your orators should not
have the relief hereby prayed,and may,upon his corporal oath and
according to his best and utmost knowledge, remembrance, informa-
tion, and belief, full, true, direct, and perfect answers make to the
premises and to all the several matters hereinbefore stated and
charged as fully and particularly as if severally and separately in-
terrogated as to each and every of such matters, and that he may
be compelled to account for and pay to your orators the profits by
him acquired and the damages suffered by your orators from the
aforesaid unlawful acts, and that the court may assess said profits
and damages and may increase the damages to a sum not
27 exceeding three times the amount thereof :
May it please your honors to grant unto orators the writ of
subpoena, issuing out of and under the seal of this honorable court,
directed to the said defendant, commanding him by a certain day
and under a certain penalty to be and appear in this honorable
court, then and there to answer the premises and to stand to and
abide such order and decree as may be made against him.
And your orators will ever pray, ete.
(Signed) WM. D. ANDREWS &«& BROS.
NELSON W. GREEN.
NOAH J. PARSONS,
By N. J. PARSONS.
(Sg'd) RICKEL, WEST & EASTMAN,
Solicitors for C omplainants.
(S'o’d) HENRY RICKEL, Of Counsel.
do
c™
bo
c™
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
28 UniTEpD STATES OF AMERICA, |
nee 88:
District of Iowa, J
On this 9th day of Dec., 1878, before me-appeared Noah J. Par-
sons, to me personally known, and who, being by me duly sworn,
did dispose and say that he is one of the complainants above named;
that he has read the foregoing bill in equity and knows the contents
thereof, and that the same is true of his own knowledge, except as to
matters therein stated on information and belief, and as to those
matters he believes it to be true.
(Signed) A. N. EASTMAN,
U. S. Com. for the Dist. of Iowa.
29 At a stated term of the circuit court of the United States of
America in the eastern district of New York, in the second
cireuit, held at the court-rooms, in the city of Brooklyn, on the
second day of May, in the year of our Lord one thousand eight
hundred and seventy-six.
Present: Hon. Charles L. Benedict, district judge.
Exuipit A.
Circuit Court of the United States for the Eastern District of New
York. In Equity.
WiiitiamM D. ANDREWs, GEORGE H. ANDREWs, NELSON W. GREEN,
ORLANDO BENNET, and PLAtrr CoNKLIN
vs.
THEODORE A. CARMAN.
30 This cause having come on to be heard upon the bill of
complaint herein, the answer thereto of the defendant, the
replication of the complainants to such answer, and the proof, oral,
documentary, and written, taken and filed in said cause, and haying
been argued at length by counsel for the respective parties:
Now, therefore, on consideration thereof, it is ordered, adjudged,
and decreed, and the court doth hereby order, adjudge, and decree,
as follows, to wit: |
That the reissued letters patent No. 4372 granted to Nelson W.
Green on the 9th day of May, 1571, for improvements in wells,
being the letters patent referred to in the bill of complaint herein,
are good and valid in law.
That the said Nelson W. Green was and is the first and original
_» Inventor and discoverer of the “improvement in wells” de-
31 scribed and claimed in the said letters patent and the specifi-
cations annexed thereto.
That the said William D. Andrews, George H. Andrews, Nelson
W. Green, Orlando Bennet, and Platt Conklin are the exclusive
owners of the said letters patent for the county of Queens, in the
State of New York, within this district.
That the said Theodore A. Carman, the defendant herein, has in-
fringed upon the said letters patent and upon the exclusive rights
of the complainants under the same by the construction and use of
wells, as charged in said bill of complaint.
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
And it is further ordered, adjudged, and decreed that the com-
plainants do recover of the defendant the profits, gains, and advan-
tages which the defendant has received or made or which
o2 have in any way arisen or accrued to him from the infringe-
ment of the said reissued letters patent by practising, making,
using, or selling the invention and thing patented, as described and
secured by the said reissued letters patent No. 4372, since the grant
and issue thereof on the 9th day of May, 1871, and also the dam-
ages which the complainants have or may have sustained by reason
of any infringement of said reissued letters patent.
And it is further ordered, adjudged, and decreed that it be referred
to L. Lincoln Benedict, Esq., special master appointed by this court,
to ascertain and take and state and report to the court an account of
the gains, profits, and advantages which the said defendant has re-
ceived or which has accrued to or arisen to him since the 9th
Oo day -of May, 1871, from infringing the aforesaid exclusive
rights of the said complainants by the construction and use
of wells such as are described in the aforesaid reissued letters patent
numbered 4372, and also to compute, assess, ascertain, state, and re-
port the amount of damages which the complainants have sustained
by reason of the said infringements.
And it is further ordered, adjudged, and decreed that the com-
plainants have on such accounting the right to cause an examina-
tion of the said defendant, ore tenus or otherwise, and also the pro-
duction of the books, vouchers, and documents of said defendant,
and that said defendant attend for such purposes before said special
master from time to time within this district as said master shall
direct.
o4 And it is also further ordered, adjudged, and decreed that
a perpetual injunction be issued in this cause against the said
defendant, Theodore A. Carman, restraining him, his agents, attor-
neys, clerks, servants, workmen, and all working or holding under
or through him, from constructing or using wells such as are de-
scribed in the aforesaid reissued letters patent, numbered 43872,
pursuant to the prayer of said bill of complaint.
And it is further ordered, adjudged, and decreed that the com-
plainants do recover of the defendant their costs and charges and
disbursements of this suit, to be taxed.
CHAS. L. BENEDICT.
I certify the foregoing to be a true copy of the original decree en-
tered in the above-entitled action.
B. LINCOLN BENEDICT, Clerk.
7
35 Exursit B.
Unirep STATES OF AMERICA, me
Eastern District of New York, fj ~*
I, B. Lincoln Benedict, clerk of the circuit court of the United
States of America for the eastern district of New York, do hereby
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
certify that the writings annexed to this certificate are true copies
of their respective originals on file and remaining of record in my
office.
In testimony whereof I have caused the seal of the said court to
be hereunto affixed, at the city of Brooklyn, in the eastern district
of New York, this thirty-first day of October r, in the year of our
Lord one thousand eight hundred and seventy-six, and of the Inde-
pendence of the said United States the 10Ist.
b. LINCOLN BENEDICT, Clerk.
06 The President of the United States of America to Theodore
A. Carman, his clerks, attorneys, servants, agents, and work-
men, Greeting:
Whereas it has been represented to us, in our circuit court of the
United States for the second circuit and the eastern district of New
York, that reissued letters patent of the United States were issued
and granted in due form of law on the ninth day of May, in the year
of our Lord one thousand eight hundred and seventy-one, to Nelson
W. Green for improvements in wells, said letters patent being known
and distinguished as “ reissue number 4572 ;
And that you, Theodore A. Carman aforesaid, have infringed the
rights secured by the aforesaid letters patent by constructing
and using wells, contrary to the form of the statute in such
vase made and provided :
Now, therefore, we do strictly command and perpetually enjoin
you, the said Theodore A. Carman, your clerks, attorneys, agents,
servants, and workmen, under the pains and penalties which may
fall on you and each of you, that you forthwith desist and refrain
from constructing or using wells such as are described in the said
reissued letters p: atent numbered 4372. —
Witness the Honorable Morrison R. Waite, Chief Justice of the
United States of America, at the city of Brooklyn, this third day of
May, in the year of our Lord one thousand eight hundred and
seventy-six.
[SEAL. ] B. LINCOLN BENEDICT, Clerk, ce.
38 Exnyipir C.
In the Cireuit Court of the United States for the District of Minne-
sota. In Equity.
Wi.LiAM D. ANDREWS, GEORGE H. ANDREws, and Nretson W. GREEN
against
GEORGE Bb. WRIGHT.
This cause came on to be heard at the December term of said
court, A. D. 1887, upon pleadings and proofs, and was argued by
the counsel for the respective parties.
And the court, having considered said pleadings, proofs, and argu-
ments, upon due advisement, it is now hereby ordered, adjudged,
and decreed in this cause as follows
That the reissued letters patent No. 4372, of the United States,
eee to said Nelson W. Green on the 9th day of May, 1871,
—16
10 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
ov for improvements in wells, being the letters patent referred
to in the bill of complaint herein, are good and valid in law.
That the said Nelson W. Green was and is the first inventor and
discoverer of the inyention of the improvement in wells described
and claimed in the said letters patent and tne specifications an-
nexed thereto. |
That the complainants, said William D. Andrews, George H. An-
drews, and Nelson W. Green, are the exclusive owners of the said
letters patent for the county of Hennepin, in the State of Minnesota,
within this district, and of all rights of action for infringement
thereof.
That the said defendant herein, George B. Wright, has infringed
upon said letters patent, and upon the exclusive right of the com-
plainants under the same, by the construction or use of wells,
AO as charged in said bill of complaint.
And itis further ordered, adjudged, and decreed that thecom-
plainants do recover of said defendant the profits, gains, and ad-
vantages which the said defendant has received or made or which
have in any way arisen or accrued to him from the infringement
of the said reissued letters patent by practising, making, using, or
selling the invention and thing patented or described and secured
by the said reissued letters patent No. 4372, since the grant and
issue thereof on the 9th day of May, 1871, and also the damages
which the complainants have or may have sustained by reason of
any infringement of said letters patent by said defendant.
And it is further ordered, adjudged, and decreed that it
4] be referred to Horatio E. Mann, Esq., master of this court, to
ascertain and take and state and report to this court an ac-
count of the gains and profits and advantages which the said de-
fendant has received or which has accrued to or arisen to him since
the 9th day of May, 1871, from infringing the aforesaid exclusive
rights of the said complainants by the construction of, dealing in,
using, or selling the said Wells such, as are described in the afore-
said reissued letters patent numbered 4372, and also to compute,
“assess, ascertain, state, and report the amount of damages which the
complainants have sustained by reason of said infringement.
And itis further ordered, adjudged, and decreed that the com-
plainants have on such accounting the right to cause an ex-
42 amination of said defendant, and also the production of the
books, vouchers, and documents of said defendant, and that
said defendant attend for such purposes before said master from
time to time within this district as said master shall direct.
And it is also further ordered, adjudged, and decreed that a_per-
petual injunction be issued in this cause against the said defendant,
George L. Wright, restraining him and his agents, attorneys, clerks,
servants, workmen, and all working or holding under or through
him from constructing, selling, putting down, or using wells such
as are described in the aforesaid reissued letters patent number
4372, pursuant to the prayer of said bill of complaint.
WILLIAM D. ANDREWS ET AL. V8. GEORGE HOVEY. 11
And it is further ordered, adjudged, and decreed that
45 complainants do recover of the defendant their costs and dis-
bursements of this suit to be taxed.
R. R. NELSON, Judge.
STATE OF MINNESOTA, bss:
County of Ramsey,
I, Horatio E. Mann, the clerk of the within-named circuit court
of the United States for the district of Minnesota, as such clerk, do
hereby certify that I have carefully compared the foregoing paper
with the original decree on file and and entered in the within-entitled
-ause and of which, as such clerk, I am the custodian, and that the
same is a true and correct and — transcript of said original decree and
of the whole thereof.
Witness my hand and the seal of this said court this July 10th,
A. D. 1878
H. E. MANN, Clerk.
At Exuipir D,
In the Circuit Court of the United States, District of Minnesota.
The U — States of America to George B. Wright, his agents, attor-
neys, clerks, servants, workingman, | and all working or holding
under or through him, Greeting:
Whereas W iMinen D. dene. George H. Andrews, and Nelson
W. Green have exhibited their bill of complaint before the judges
of our circuit court of the United States for the circuit within and
for the district of Minnesota against you, the said George Bb. Wright,
praying to be relieved touching the infringement by you of their
rights under reissued letters patent of the United States granted and
issued in due form of law on the 9th day of May, 1881, to said Nel-
son W. Green for “improvements in wells,” _ reissued
45 letters patent being known and distinguished as “ reissue
number 4372,” and which was duly assigned to se are now
owned by said William D. Andrews, George H. Andrews, and Nel-
son W. Green ; and whereas bv the decree of said court entered on
the tenth day of July, A. D. 1878, it was ordered adjudged, and de-
creed that a writ of injunction issue under the seal of said court to
restrain you and each and every one of you from constructing, mak-
ing, manufacturing, selling, putting down, or using any well or wells
such as are described in said reissued letters patent No. 4372:
We, therefore, in consideration thereof, do hereby strictly com-
mand and perpetually enjoin you, the said George b. Wright, your
agents, attorneys, clerks, servants, workingmen, and all hold-
46 ing under or through you, under the pains and penalties
which may fall upon you and each of you in case of disobe-
dience, that you forthwith cease, desist, and refrain from construct-
ing, making, manufacturing, selling, putting down, or using, either
by or for yourself or as the seryant or workingman of another,
in violation of said. reissued letters patent, any well or wells such
as are described in said reissued letters patent No. 4372; whereof
you are not to fail at your peril.
12 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
Witness the Honorable Morrison R. Waite, Chief Justice of the
Supreme Court of the United States, at St. Paul, this twenty-second
day of July, in the year of our Lord one thousand eight hundred
and seventy-eight.
[Seal U.S. Court.]
LAMPREY & JAMES,
Complainants’ Solicitors.
47 (Endorsed:) 1850. (No. 51.) United States circuit court,
district of Iowa. In equity. William D. Andrews, George
H. Andrews, Nelson W. Green, and Noah J. Parsons vs. George
Hovey. Bill of complaint. Filed Dee. 10, 1878. E. R. Mason,
clerk. Rickel, West & Eastman, complainants’ solicitors, No. 32
Iowa avenue, Cedar Rapids. George Gifford, Milo Goodrich, b. F.
Tracy, complainants’ counsel.
48 And on the 10th day of December, 1878, a subpcena in
chancery was issued out of the clerk’s office in said cause ;
which said subpcena, together with the marshal’s return thereon,
was filed on the 26 day of December, 1878, in the words and figures
following, to wit:
H. E. MANN, Clerk.
49 UnitTep STATES OF AMERICA, \ ss
District of Iowa,
The President of the United States of America to George Hovey;
Greeting:
You are hereby commanded to appear before our judges of our
circuit court of the United States of America for the district of
Iowa, at Des Moines, in said district, on the first Monday in the’
month of January next, it being the 6th day of January, A. D. 1879,
to answer the bill of complaint of William D. Andrews, George H.
Andrews, Nelson W. Green, and Noah J. Parsons, this day filed in
the clerk’s office of said court, in said city of Des Moines, then and
there to receive and abide by such judgment and decree as shall then
or thereafter be made, upon pain of judgment being pro-
50 nounced against you by default.
To the marshal of the district of Iowa to execute.
Witness the Hon. Morrison R. Waite, Chief Justice of the Su-
preme Court of the United States of America, at Des Moines
aforesaid, this 10 day of December, in the year of our Lord one
thousand eight hundred and seventy-eight, and of our Independence
the one hundred and third year.
[L. 8.] (Signed) EDWARD R. MASON, Clerk.
MeMoORANDUM.—The within-named defendant is notified that
unless he enters his appearance in the clerk’s office of said court, at
Des Moines aforesaid, on or before the day to which this writ is
returnable the complaint will be taken against him as confessed,
and a decree entered accordingly.
[L. s. ] (S’g’d) EDWARD R. MASON, Clerk.
RICKEL, WEST & EASTMAN,
Plaintiffs’ Solicitors.
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. ]
51 United States Circuit Court, District of lowa,ss. In Chancery.
WiLuiAM D. ANpDREWs, GEORGE H. ANDREWs, NELSON W. GREEN,
and NoaH J. PARSONS
vs.
GEORGE Hovey.
To said defendant, George Hovey :
Take notice that the complainants will move this honorable
court on this 27th day of Dec., A. D. 1878, at 10 of the clock in the
forenoon or as soon thereafter as counsel can be heard, at the cham-
bers of the Honorable James M. Love, one of the judges of said
court, at chambers, in the city of Keokuk, in said district, that a
writ of injunction issue against you, the said defendant,
52 George Hovey, upon the bill of complaint and affidavit on
file with the clerk of said court in the above-entitled cause,
in accordance with the prayer of the said bill of complaint therein.
Yours, «c.,
(Signed) RICKEL, WEST & EASTMAN,
Complainants’ Solicitors.
Dated this 9th day of Dec., A. D. 1878.
I hereby certify that the within is a true copy of the original sub-
peena and of the original notice of application for an injunction in
chancery delivered to me for service.
U. S. Marshal.
I hereby appoint Charies H. Turner my true and lawful deputy
to serve this writ. ee
(S’g’d) J. W. CHAPMAN,
U.S. Marshal.
This suit came into my hands for service on the 10 day of
D3 Dec., 1878, and I served the same on the within-named Geo.
Hovey on the 14th day of Dec., 1878, by leaving with him
a true copy of the same at his usual place of residence in Inde-
pendence, Buchanan Co., Iowa.
: J. W. CHAPMAN,
U.S. Marshal,
(S’g’d) By CHAS. H. TURNER,
Spe. Dep.
(Endorsed .) No. 1850. Eq. Circuit court of U. S., district of
Jowa. William D. Andrews eé al. vs. George Hovey. Chancery
subpeena. Returnable first Monday in January, A. D. 1879. Filed
Dec. 26, 1878. E. R. Mason, clerk. Rickel, West & Eastman, com-
plainants’ solicitors, 82 Iowa avenue, Cedar Rapids, Iowa.
14 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
54 And on the 6 day of January, 1879, the complainants, by
Rickel, West & Eastman, their solicitors, & filean amendment
to their bill in said cause in the words and figures following, to wit:
55 In the United States Cireuit Court, District, of Iowa. In
Equity.
W. D. ANpreEws, Gro. H. ANDREws, Netson W. GREEN, & Noau J.
PARSONS
US.
GEORGE Hovey.
To the honorable judges of the circuit court of the United States for
the eighth judicial circuit, within and for the district of Iowa:
Comes now the complainants in the above-entitled cause and
amends their bill of complaint as follows:
By inserting after the words “ in the State of New York,” in the
second line thereof, the words “ and being citizens of the said State
of New York;”
By inserting after the words “ State of Massachusetts, ” in
56 the second line, the following words: “And being a citizen of
said State of M: assachusetts ; ’
Inserting after the word “ Iowa,” in the 3rd line of said bill, the
following words: “And being a citizen of the said State of Iowa.”
And — addition to the allegation that said defendant, George
Hovey, is a resident of buchanan county, Iowa, complainants allege
that said defendant, George Hovey, is a citizen of the said State of
lowa.
And complainants further aver and charge that parties above
named were citizens of the States as above stated at the time of the
commencement of this action and the filing — the bill of complaint
herein.
(Signed) W. D. ANDREWS & BRO.
“NELSON W. GREEN.
NOAH J. PARSONS,
By NOAH J. PARSONS.
(S'e’d) RICKEL, WEST & EASTMAN,
C seer pen Solicitors.
(S’e’d) HENRY RICKEL, Of Counsel.
UnITED STATES OF AMERICA,
District of Iowa, has.
On |this 4th day of January, A. D. 1879, before me appeared Noah
J. Parsons, to me personally known to be such person, and who,
being by me duly sworn, did depose and say that he is one of
complainants above named; that he has read the foregoing amend-
ment to complainants’ bill of complaint and knows the contents
thereof, and that the same is true of his own knowledge.
(Signed ) A. N. EASTMAN,
United States Commissioner in and for the District of Towa.
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 15
58-71 (Endorsed:) In the United States circuit court. W. D.
Audrews et al. vs. Geo. Hovey.. Amendment to complainants’
bill. Filed Jan. 6, 1879. E. R. Mason, clerk. Rickel, West &
Eastman, compl’t- solicitors, Xe. |
72 And on the 13th day of May, 1879, the defendant, by Lake &
Harmon, his solicitors, filed his answer to complainant’s bill
in the words & figures following, to wit:
73 In the Circuit Court of the United States, District of Iowa. In
Equity.
WILLIAM D. ANDREWs eé al.
vs. No. 1350.
GEORGE Hovey.
The answer of George Hovey to the bill of complaint of William D.
Andrews, George H. Andrews, Nelson W. Green, and Noah J. Par-
sons, complainants.
The defendant, now and at all times hereafter reserving to him-
self all benefit and advantage of exceptions which can or may be
taken to the many errors, uncertainties, and imperfections in the
said complainants’ bill of complaint contained, for answer thereto
or unto so much and such parts thereof as he is advised are material
for him to answer with —:
74 He denies that said Green was the original or first inventor
of any new or useful improvements in wells, whether as set forth
in any letters patent or otherwise, but he avers that identically and in
substance the same pretended improvement, as hereinafter more ex-
pressly stated, had been known and used vy many persons other
than said Green long before the date of his pretended invention, and
was by them known and used and was on sale and was in publie
use more than two years before the time of his pretended applica-
tion for letters patent.
And this defendant is not advised or informed, save by the said
bill of complaint, and cannot set forth as to his belief or other-
79 wise, whether the said Green was ever a citizen of the United
States or whether he ever made application for any letters
patent whatever, or whether any letters patent were ever granted or
issued to him, whether as stated in said bill of complaint or other-
wise, or as to whether he ever surrendered such letters patent or ever
made any application for or obtained new letters patent in the prem-
ises, or whether the same were ever granted or issued, or as to
whether said Green ever executed any assignment of any interest or
right in or to any letters patent to any person or persons, or as to
whether any such assignment, if it ever was made, was ever recorded
in the Patent Office, or as to whether the complainants ever,
76 by the means stated in their bill of complaint or otherwise,
became or ever were the owners of any letters patent or in-
vention, rights or privileges, in and for the county of Buchanan,
Iowa, or elsewhere, or as to whether they have ever invested any
sum of money in the;premises or been to any trouble, or as — whether
16 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
said pretended invention is of any benefit or advantage, or as to
whether any wells were ever constructed or made according to said
invention, save as in this answer stated; they deny that the public
have ever acknowledged or acquiesced in any right asserted by the
complainants in the premises.
And this said defendant is not advised or informed, save by the
said bill of complaint, and cannot set forth as to his belief or
77 otherwise whether any such suits as those averred in the bill
of complaint were ever commenced in the circuit court of the
United States for the eastern district of New York or the district
of Minnesota, or whether any of the alleged proceedings were ever
had in those courts, or as to whether any such adjudication or
decree as that alleged was ever given, rendered, or had therein.
And the said defendant, further answering, denies that he ever
at any place, whether as alleged in the said bill of complaint or
otherwise, in violation of any right of the complainants or in in-
fringement of any letters patent, wrongfully or unlawfully or in
defiance of the rights of any person constructed or used any wells
or threatens to construct or use any wells, or that he has ever
78 done or intends to do any act whatever in violation of any
right of the complainants, or that he has ever caused them
any loss or injury or deprived them of any gains or profits, or that
any act which he has ever done or threatened has any effect to
encourage or induce any person to infringe on said pretended patent
or upon any rights of the said complainants, or that he has ever
been notified of any infringement.
And he denies severally and specifically each and every aver-
ment contained in the said bill of complaint save as in this answer
admitted, qualified, explained, or otherwise denied.
And the defendant, further answering, denies that thesaid Nelson
N. Green was the first or original inventor of the pretended
79 invention in said bill of complaint described or any or either
of them, or of any substantial, material, or meritorious com-
ponent thereof, but, on the contrary, he avers and says that the al-
leged invention and all the substantial, material, and meritorious
eomponents thereof were, long prior to any alleged invention thereof
by said Green, described in certain letters patent and in certain appli-
cations for letters patent and in certain books, pamphlets, and pub-
lications hereinafter particularly described, and were known and
used by divers persons in this country and elsewhere, to wit:
The application for letters patent of the United States filed in
Patent Office of the United States on the 16th day of May, A. D.
. 1865, by 8S. R. & W.S. Hunter, of the town of Cortland, in
80 the State of New York. |
The application of James Suggett, of the town of Cortland,
in the State of New York, for letters patent of the United States filed
in the office of the Commissioner of Patents on the 29th day of
March, A. D. 1864.
The application for letters patent of the United States made and
filed by Byron Mudge, of said Cortland, in the office of said Com-
missioner on the 24th day of October, A. D. 1865.
“¢
“*¢
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 17
Letters patent of the United States granted and issued to James
Suggett aforesaid and dated March 2¥, A. D. 1864.
Letters patent of the United States granted and issued to Byron
Mudge, dated October 25th, 1865.
Letters patent of the United States granted and issued to
81 S. R. and W.S. Hunter, of said Cortland, dated May 16th,
1865.
The application of John Chandler, of Coldwater, Michigan, for
letters patent of the United States and such letters patent granted
to him dated September 4, A. D. 1866.
The application of H. Ri and M. T. Barnes, of Watkins, New York,
for letters patent of the United States and such letters granted to
them dated August 15, A. D. 1865.
Also that the pretended invention, precess, device, and apparatus
and each thereof substantially the saine in construction and opera-
tion as that asserted in said bill of complaint to be included in,
covered, and protected by, said letters patent to said Green were
made and were in public use for more than two years prior
§2 to any application by said Green for said original letters pat-
ent and more than two years prior to the date of said pre-
tended invention, at Naperville, in the State of Illinois, as was
known by James J. Hunt and A. McS. 8. Ridler, of that place, and
by others, due notice of whose names and places of residence will be
given to the complainants or their counsel.
Also to Albert L. Rollo, who resides at Vineland, in the State of
New Jersey, who had knowledge of the same at Cortland, in the
State of New York, and in the towns adjoining said Cortland; also
James Suggett, Stephen R. Hunter, Richard Lambert, James C. Car-
michal, M. M. Waters, Howard Baker, A. P. Smith, and Henry
Baker, who reside in said Cortland, and who severally had the
83 same knowledge of the same at said Cortland and im the
towns adjoining.
Also to H. W. Smith, who resides at Pontiac, Illinois, who knew
of such use and actually made such use in Warren county, Ohio, in
the year 1857.
Also to Duane A. Tinckelpaugh, who resides in Minneapolis, Min-
nesota, and knew of and saw such use in October or November, 1859,
at Fairbury, in the State of Illinois, near a mill owned by one
McDowell.
Also to J. Phillips, Stephen Barnes, R. B. Amesbury, H. M. Gillett,
John Zimmerman, H. Remington, all residents of Fairbury, who
have the same knowledge as Tinckelpaugh, and particular to said
Amesbury, who saw such use- at said Fairbury, in 1859, upon the
premises occupied as a store by the firm of Amesbury, Pogne
84 & Thomas.
Also at Piper City (then called Brenton), in the Siate of
Illinois, in 1856, as was known to Michael Fitzmorris, now residing
at Chatsworth, Illinois, and to John R. Lewis, Michenson, and
Atwood, who reside at said Piper City, and to many others,
whose names and places of residence will be furnished to the com-
plainants or their counsel.
ew a
xcpmitenesamgecmesetnee th enrmemte
- aoe came te ata
. —— coe ares 3
a a eT SR ve ees
18 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
Also L. Meeker and John Grimes, of Farmington, Minnesota, who
knew of its use at Saratoga, New York, in 1855 and 1859.
Also Chas. Seward, of Farmington, Minn., who knew of its use
in Hillsboro, Illinois, in 1850 to 1857.
‘ Also to George Parish and Richards, who reside at
S5 Chatham, Iowa, and knew of its use in Victor, New York,
before 1855.
' Also John H. Edwards, of Stillwater, Minn., who knew of its use in
Manlius, [l., in 1859 and 1860.
Also to C. C. Linville, who new resides at Decorah, Iowa, who
kuew of such use in the State of Kansas in 1860.
Also to A. J. Parker, who resides at Ithaca, in the State of New
York, and to George Geddes and Spencer, of Syracuse, New
York, and who had knowledge of the same at Ithaca, Syracuse, and
Salina, in said State.
Also to J. P. Reeves and Wm. Dixon, of Minneapolis, Minn., —
knew of its use in said Minneapolis in 1860.
Also to William Clark, now residing at Minneapolis, Minn., who
knew of its use in Johnson county, Iowa, in 1858.
Also to J. M. Underwood, who resides at Minneapolis, Minn.,
S6 and who knew of its use at Kennebec, Maine, in 1859.
Also to E. W. Purdy, who resides at Independence, Iowa,
who put in these wells at Milwaukee, Wisconsin, in 1849 and 1850.
Also to O. T. Whitney, who resides in Minneapolis, Minnesota,
who knew of — saw such use- on the State fair grounds at Elmira,
New York, in the years 1859 and 1860.
Also to Mr. Donelly, who resides at said Minneapolis, who knew
of and saw such use- at the place of Wm. R.Wadsworth at Constable-
ville, Lewis county, New York, in or about the vear 1860, and also
upon the lot.of Mr. Sidle at the same place and time.
Also to John W. Webster, who resides at said Minneapolis, who
knew of and saw such use- in August, A. D. 1854, at the mouth of
Calumet creek, near Chicago, I]linois.
87 Also to Frank Goodwin, who resides at said Minneapolis,
who knew of and saw such use- in 1856 or in 1857 in repeated
instances in the town of Harbor Creek, Erie county, Pennsylvania.
Also to J. O. Miline, who resides at said Minneapolis, who knew of
and saw such use- in the summer or fall of 1856 at his & his father’s
place of residence in the town of Macedon, Wayne Co., N. Y.
Also J. M. Griffiths, who resides at said Minneapolis, who knew of
and saw such use- at the place of residence or business of Nat. Shary
at Montgomery City, Missouri, in 1860 or 1861.
That the knowledge of each of the aforesaid persons was of the
pretended invention, process, device, and apparatus and of each
thereof and of the actual use of the same at the times and places
stated more than two years prior to the time when said Green inade
his first application for such patent. 7
This defendant states further that in the month of April
88 or May, 1861, there was put in at Independence, Iowa, a well
nade by driving down into the earth an iron tube shod with
an iron or steel point, with perforations in the tube above the point,
~*~ oo ul well
~ oo vs el og 4
WILLIAM vv», ANDREWS ET AL. VS. GEORGE HOVEY. 19
without a screen over the same, and sections of tubing attached as
driven down until it was projected some feet into the water, and to
the top of this tube was attached an iron pump, and the same was
used for pumping water through, and was know and publicly used
at such place from April or May, 1861, until some time in July or
August, 1861, and was known to and used by the following-named
persons, whose post-office address is Independence, Iowa,
89 to wit: Thomas Sherwood, Frank Trask, Perry Munson,
Thomas H. Tyson, 8. P. McEwen, Dr. George Warne, S. S.
Allen, S. M. Marquette, A. F. Williams, C. B. Kandy, George B.
Warne, T. J. Marinus, D. 8. Deering, George Hovey, J.J. Travis,
J. M. King, W. Wallace, A. H. Fonda, M. b. Jones, J. A. Davis, E.
W. Purdy.
And said well was also known to the following-named persons,
whose post-office address is Jessup, Iowa: C. T. Kimball, John
Ganier.
And to the following, whose post-office address is. Quasqueton,
Towa: b. C. Hale.
And to the following, whose post-office address is Swanton, Lowa:
Ehas 8. Hovey.
And to the following, whose post-office address is Waterloo,
90 Iowa: S. W. Fenstermaker.
And to the following, whose post-office address is Fairbank,
Iowa: William Codling.
This defendant, further answering, states that said invention was
known and used in all its parts as described in said complainants’
bill of complaint and his letters patent long before the pretended
invention claimed to have been made by Nelson W. Green, and was
known to and used by the following-named persons now residing in
Buchanan county, Iowa, in said county, in the spring of 1861: CT.
Kimball, Thomas Sherwood, Frank Trask, Perry Munson, Thomas
H. Tyson, Samuel P. McEwen, Dr. George W arne, 8. 8. Alle en, 5S. M.
Marquette, A. F. Williams, C. B. Kandy, George B. Warne,
91 B. C. Hale, T. J. arenes. John Ganier, D. 8. Deering, George
Hovey, J. J Davis, J. M. King, W. W allace.
And was also known to Elias 8. Hov ey, who now resides at Swan-
ton, Iowa, and that such knowledge and use was open and notorious
a known to the publie at that time and place, and that such use
‘as before the pretended invention by said Green.
And the defendant avers that the alleged invention and all the
substantial, material, and meritorious components thereof were
more than two years before said Green made any application for a
patent and a long time before his alleged inventions described in
certain printed books, pamphlets, and publications as follows,
to wit:
92 In a report of Thomas Spencer, superintendent, and Henry
W. Allen, inspector, of the salt wells at Syracuse and Salina,
in the State of New York, and dated January Sth, A. D. 1842, in
which the material parts of said pretended invention are described.
In a report of said Spencer and Allen concerning said salt wells
and the method of sinking wells at said places, dated January 9,
1841,
20 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
In a report made by Richard Wright and James M. Allen, of said
Syracuse, concerning the salt wells “of Salina and Syracuse, New
York.
In a report of the superintendent of the sait wells in said Syra-
cuse, dated January, 1853, on pages 10 and 11, in which the material
parts of said claim’and invention are described.
In a certain book or public ation known as “ McKenzie’s
93 Five Thousand Receipts,” published by James King, Jr., aa
Brother, at Philadelphia, A. D. 1829, and being a republica-
tion from a London edition of the same work, on page 388, in which
all the material parts of said pretended invention are described.
In a certain book known as and called “Un’s Dictionary of Arts
and Manufactures,” published: more than twenty years ago, but in
what year defendant cannot now state, on pages 65, 66, and 67, in
which all the material parts of said pretended invention are de-
scribed.
In volume 35 of a certain work known as “ Ree’s Cyclopedia,”
published in Philadelphia about A. D. 1817, under the title of
“Spring Draining Pump;” also in volume 5 of said work,
O4 under the title of “ Borer in Ru-al Economy,” in each of w hich
volumes all of the material parts of said pretended invention
are described.
Also in a book published in A. D. 1859 or 1860 by authority of
the State of New ones entitled “Transactions of the State Agri-
cultural Society of the State of New York for the Year 1859,” on
page 280, where all the material parts of said pretended invention
are described.
Also in a certain report of Thomas Spencer, of Syracuse, New York,
contained in the annual report of the New York State Agricultural
Society for the year 1843 and published A. D. 1848 or 1844, on pages
8 and 9, in which all the material parts of said pretended invention
are described.
This defendant, further answering, states that said inven-
95 tion, after it was claimed tu have been made in 1861 by the
said Nelson W. Green, at Cortland, in the State of New York,
was by him made and put in use, under his order and direction,
in the said county of Cortland, and was allowed to go into public
use, with his knowledge and consent, and was allowed to remain 1n
such use from October, 1861, until in March, 1866, when be made
his first appearance fora patent, and that the said invention was
used in public in said Cortland and was known to Byron Mudge,
A. P. Smith, James Carmichal, James Suggett, W. S. Hunter, Wil-
liam O. Bonnard, M. M. W aters, Julius A. Graham, Henry Bates,
Henry Mead, Edward Ashdown, Horace Baker, Horato
96 Ballord, Ebinezer Mudge, Ira V. Hicks, James F reeman,
Henry Woodruff, George N. Copeland, and Cornelius Brown,
all of whom knew of such use for more than two years from the
time said invention is claimed to have been made and before the
said Green made any application for a patent.
This defendant, further answering as to the well he has and uses,
and the only well that this defendant ever possessed, owned, used, or
sn hence on Sm eceparere .
STEN ree " OI he BP =
Ta ied arom Be Soe od
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 21
in any manner controlled, states that his well was not made in the
manner claimed by said complainants in their bill of complaint, nor
in manner and form like the said wells claimed by said complainants
In any particular. .
This defendant says that he has no well except an open-
97 dug well at his house, in Independence, and ati open-dug
well on his farm, in Perry township, Buchanan Co., Iowa,
with a hole drilled in the rock in the bottom.
That all the wells he owns are open wells. )
This defendant says that he has made some wells since 1871, and
that he makes all his wells by boring down to and into the water ;
then putsin a tube, with large holes in the bottom, without a sere-n ;
attaches a sand pump and pumps out a quantity of fine mud; then
puts in a tube with wire scre-ns over the holes and attaches to that
apump. Thisis his method of making wells. Defendant says that
he never makes wells by driving a rod or instrument into the ground
without removing the earth upwards as it is in boring.
98 And the defendant denies that the said pretended inven-
tion in said bill of complaint described or any material part
thereof was not known or used or had not been on sale or in public
use for more than two years prior to the date of said pretended let-
ters patent or to the date of the application therefor and with the
knowledge and consent of the said Green; but he avers that, if it
shall be held that said Green was the first or original inventor of
said invention or anv substantial or material part thereof, that after
his said invention and before he ever took any measures to obtain a
patent and prior to the date of said patent, and for a date of more
than five years before the date of his pretended application for a
patent, said invention as claimed in said bill of complaint
99 and in said pretended letters patent and the substantial and
material parts thereof were in common, public use, and were
on sale with the knowledge and consent of the said Nelson N. Green,
and that he, with full knowledge of said public use and sale, aban-
doned the said pretended invention, if any he had, and ded‘cated
the same to the use of the public.
And the defendant avers that any letters patent which may have
been issued to said Green in the premises were obtained by fraud
and deceit, and that all and singular the several allegations in the
application, specifications, — claims of or pertaining to said original
and to the surrendered and reissued letters patent were wholly
100 false, fraudulent, and untrue, as the said Green has always
well known,'and denies that the several owners in said origi-
nal letters patent joined in the surrender of said letters patent or in
the application for a reissue of the same; and,likewise, on informa-
tion and belief, denies that said original letters patent were ever
' surrendered to the said Commissioner of Patents, as claimed in said
bill, for good and lawful cause, but, on the contrary, the defendant,
on information and belief, alleges that said reissued patent on which
this complaint is brought was obtained by fraud and for the fraudu-
lent purpose of enabling the said N. W.Green, complainant, and the
other owners of said letters patent to include in said reissued letters
Lr IN etree
ho
bo
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
patent more and other matters and things than those of which
101 he was or claimed to be the first or original inventor and more
than he or the said complainants were entitled to include in
lis said original letters patent and things and inventions of which
he, the said N. W. Green, was not, at the time of his said original
patent or his said application therefor, the first and original inventor,
and that said reissued letters patent, on which this suit is brought,
does include, describe, and contain and claims to have patented
therein inventions and things of which the said complainant, the
said Nelson W. Green, was not the first and original inventor; and,
further, that, upon the face of said letters patent, the invention therein
patented appears to be different from the invention patented
1014 and claimed in said original letters patent, and that the same
are therefore void and of no effect.
And the defendant therefore says, on information and belief, that
said reissued letters patent on which this suit is brought were ob-
tained by the said Nelson W. Green by false and fraudulent repre-
sentations and suggestions to the Commissioner of Patents, and that
said patent is therefore void.
This defendant, further answering, says that the well as invented
and patented by the said Nelson W. Green, and as described by him
in his said letters patent and the specification thereto annexed and
also to the reissue of the satne, will not work and make a well in the
soil as it is in Iowa.
1013 That in no part of the premises occupied by him, as this
— defendant is informed and believes, would such a well be of
any use or benefit to this defendant.
This defendant says that by reason of the imperfections in the
construction of said wells and the manner in which the said Green
describes them they will not succeed as wells in the soil of Iowa, but
are wholiy and totally a failure by reason of the accumulation of
fine particles of matter in the tube.
This defendant further avers, on information and belief, that.some
time in the years 1871 and 1872 Elias 8. Hovey and Elijah A.
Ifovey did discover and invent a method or process by which wells
3 could be made in the soil of Iowa.
102 That some time in 1872 the said Elias S. Hovey procured
from the Commissioner of Patents, at the office of said .Com-
missioner, at Washington, in the District of Columbia, letters patent
bearing date on the 20th day of F:bruary, 1872, and numbered
123,908, and that said process is entirely independent from and dif-
ferent than the process pretended to have been invented by said
Nelson W. Green, and is not any infringement on the rights or
claims of the complainants herein, which letters patent or a duly
cerlified copy thereof this defendant is ready to exhibit to the court
ind to present the same for Inspection at such time or times as may
by the honorable the judges of this court be required.
. And this defendant further avers and states to this court that
103) by means of the removal of the earth upwards out of the well
| pit as described in said letters patent issued to the said Elias
S. Hovey, No. 125,903, as stated in said letters patent and the speci-
.
e
—-:
—_—
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 95
fications accompanying the same, the said process invented by the
said Hovey will and does make a good and useful well in the soil
as it is in the State of Iowa and especially in the land occupied by
this defendant, whereas a well made as stated and described in the
process as claimed to have been invented by the said Nelson W.
Green and as set out in his letters patent reissue No. 4872 and the
specifications accompanying the same a well could not be success-
fully made in the soil of the premises occupied by this defend-
ant.
104 This defendant says that he is the owner of the right to
mnake wells by the process patented to Elias 8. Hovey as set
out in his patent No. 123,908 for the State of Iowa; that he makes
all the wells he has ever made by that process; that he bores to
water and uses the Hovey process for the purpose of cleaning out the
well pit; that he has never made a well according to Green’s patent,
except for experiment.
And this defendant denies all and all manner of unlawful com bi-
nations and confederacy wherewith he is by the said bill charged,
without this, that there is any other matter, cause, or thing in the
said complainants’ said bill of complaint contained material or
necessary for this defendant to make answer unto and not
105 herein and hereby well and sufficiently answered, confessed,
traversed, and avoided and denied is not true to the knowl-
edge and belief of this defendant; all which matters and things this
defendant is ready and willing to aver, maintain, and prove as this
honorable court shall direct, and prays to be hence dismissed with
his reasonable costs and charges in this behalf most wrongfully sus-
tained.
(S’g’d) LAKE & HARMON, ..
Solicitors and of Counsel for Defendant.
District oF Iowa, ss:
I, Geo. Hovey, the above-named defendant, having been duly
sworn, deposes that what is contained in the foregoing answer,
106 so far as concerns my own act and deed, is true to my own
knowledge, and that what relates to the act and deed of any
other person or persons I believe to be true.
(Signed) GEO. HOVEY.
Subscribed and sworn to before me this 24 day of April, A. D.
1879, by Geo. Hovey.
[SEAL. | JED. LAKE,
Notary Public, Buchanan County, Iowa.
(Endorsed :) 1850. United States circuit court, district of Iowa.
In equity. William D. Andrews e al. vs. Geo. Hovey. Filed May
13, 1879. E. R. Mason, clerk. Lake & Harmon, solicitors for de-
fendant, Independence, Iowa.
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
107 And on the 26th day of May, 1879, the complainants, by
their solicitors, filed in said cause their replication to defend-
ant’s answer in the words and figures following, to wit:
108 Replication.
In the Circuit Court of the U. S., District of Iowa.
W. D. ANpDREws AND Bro. e¢ al. vs. GEORGE Hovey, Defendant.
‘The replication of W. D. Andrews & Bro. et al., complainants, to the
answer of George Hovey, defendant.
These repliants, saving and reserving unto themselves — and at
-all times hereafter all and all manner of benefits and advantages of
exceptions which may be had or taken to the manifold insufficiencies
of the said answer, for replication thereunto say that they will
109 ~=aver, maintain, and prove their said bill of complaint to be
, true, certain, and sufficient in law to be answered unto, and
that the said answer of said defendant is uncertain, untrue, and in-
‘cufficient to be replied unto by these repliants, without this, and any
‘other matter or thing in said answer whatsoever contained material
or effectual in the law to be replied unto and not herein and hereby
well and sufficiently replied unto, confessed or avoided, traversed or
denied, is true; all which matters and things these repliants are and
will be ready to aver, maintain, and prove as this honorable court
shall direct, and humbly pray as in and by their said bill they have
already prayed.
(Signed) RICKEL, WEST & EASTMAN,
Complainants’ Soltcitors.
110-118 (Endorsed :) W. D. Andrews & Bro. e¢ al. vs. George
Hovey. Replication of complainants. Filed May 26,
1879. KE. R. Mason, clerk. Rickel, West & Eastman, complainants’
solicitors. |
119 And on the 2 day of January, 1880, in the record of the
proceedings in said court, is an entry in said cause in the
words and figures following, to wit:
120-122 United States Circuit Court, District of Jowa. October
Term, 1879. Friday, January 2, 1880.
Wn. D. ANDREws et al.
US. Eq. No. 1350.
GEORGE Hovey.
DECEMBER 30, 1879.
Leave granted, by consent of counsel, to amend answer.
(Signed) J. M. LOVE, Judge.
...
a~
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 95
123 And on the Ist day of March, 1880, the defendant, by his
solicitors, filed in said court a motion for leave to file amend-
ment to his answer in the words & figures following, to wit:
124 Motion.
UNITED STATES OF AMERICA:
In the Circuit Court in and for the District of Iowa. In Equity.
WitiiamM D. ANDREWS, GEORGE H. ANDREWs, et al.
vs.
GEORGE Hovey.
Now comes the responcent in the above-entitled cause, George
Hovey,and submits to the court the annexed amendment to his an-
swer herein and asks leave of court to file the same in this cause.
The defendant states that the citations of the printed publications,
as stated in this amendment, are made in the original answer, to
wit:
The citation to Reese Cyclopedia is to a different edition, but
125 is the same work, only the edition to which we have been
able to get access was published in 1819 instead of 1817, as
stated in the edition cited in the original answer. The reference
made to Mackinzie’s 5,000 Receipts in the amendment is one pub-
lished in 1829, on page 500, and is the one to which we can get ac-
cess, while this one, cited in the original answer, was published in
1829 by J. King, on page 388.
Wherefor- this defendant says that the amendment does not in
any manner increase the proof necessary to be made by the com-
plainant- and does not change the nature of the answer, aud asks
that it may be filed without ‘costs or terms.
(Signed) LAKE & HARMON,
| Solicitors for Deft.
The solicitors ask that they may file the same amendment
126 ___—to all the cases tried of this nature in which they appear for
the defendants. |
(Signed) LAKE & HARMON,
Solicitors for Numerous Def’ts.
District oF Iowa:
The application for leave to file the foregoing amendment in the
case specified above and cases of the same nature coming on for
hearing this day at chambers, Lake & Harmon being present for
the defendants and Rickel, West & Eastman for the complainants,
and the complainants’ counsel w aiving all objections to said motion
and not resisting the same, it is ordered that said motion be allowed
and that leave be granted to file said amendment accordingly.
December, 30, 1879.
(S’g’d) J. M. LOVE.
4—16
26 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
oe af Amendment to Answer.
UNITED STATES OF AMERICA:
In the Circuit Court in and for the District of Iowa. In Equity.
Witiram D. ANpDREWs, GEoRGE H. ANDREWs, ef al.
Us.
Now comes , the defendant in the above-entitled cause,
and, leave of court having been first obtained to make an amend-
ment to his answer herein filed, in addition to the matters and facts
heretofore in his answer in this cause filed, states:
That the invention patented by Nelson W. Green and claimed by
him to be his invention, as set forth in the bill of complain-
128 ants herein, was, long prior to the time of such claimed in-
vention, mentioned and described in certain printed publica-
tions and bocks as follows: .
In Reese Cyclopedia, published in London, England, about the
year 1819, in volume 5, under the head or title of “Borer in Ru-al
Economy ;” and in volume 9838, under the head or title of “Spring
Draining Pump,” and in volume 38, under the head of “ Well in
Ru-al Economy.”
Also as shown in plates, seis me 1, plate 37, of said Reese Cyclo-
pedia, under the head of ‘ ‘Agriculture.” Said work known as Reese
Cyclopedia is not paged, but the subject are arranged in alphabet-
ical order, and the above subjects are described under the several
heads and plates as stated.
4129 Also in a certain book known as Mackenzie’s 5,000 Re-
ceipts, published in Philadelphia about the year 1829 by one
J.J. Woodward, on page 500, under the head and title of “To Raise
Water in All Situations.”
Also in a certain book known as Livingston’s South Africa ene
an account of the missionary travels and researches in South ‘Afric:
by David Livingston, published by Harper Brothers in 1858, 1859,
1860, on page 59 of said book.
Also in certain letters patent of the United States issued to Levi
Disbro Novy. Ist, 1830
Also that said claimed invention was known in all its various
parts, and the principles involved in said invention were used by
and known to the following persons residing at Preble, in the
130. = county of Courtland and State of New York, to wit: William
EK. Tallman, now deceased ; Moses C. Tallman, Mrs. Moses C.
Tallman, Abram V andenburg, Theodore Klock, Thomas Getman,
John Wilbur, Edwin Wilbur, ‘Charles W hite, George Taylor, Calvin
Sheppard, John D. F. W oolston, John Hilligus, and Ezra Hilligus,
who had knowledge of the same at Preble aforesaid.
Also Henry C. “Ty allman, residing at Tully, Onondaga county,
New York, who had knowledge of the same at Preble.
1 &
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 27
Also to Timothy H. Buxton, Chancey Buxton, Hiram Adams,
Alonso Burr, Jabez B. Warren, and Spencer Cronkite, who resides at
Warsaw, New York,and who knew of such use at Warsaw aforesaid.
Also to B. C. Hales, who resides at Quasqueton, Iowa, and
131 ~to Elias 8. Hovey, who resides at Swanton, Iowa, and to S. W.
Fenstermaker, J. E. Trexler, and Martin Rust, who reside at
Waterloo, Iowa, and to William Codling, who resides at Fairbank,
Iowa, and to M. B. Trins, John A. Davis, E. W. Purdy Almon T.
Francis, Oliver Marquett, Walton Hill, H. A. King, — W. H. H.
Morse, who reside at Independence, [owa, and knew of such use at
Independence, Iowa, aforesaid.
This defendant further state- that after the time that the said Nel-
son W. Green claims to have invented said well or process the same
was abandoned by the said Green to the public and was used by the
public for more than two years before a patent was applied for.
Wherefore defendant asks that the foregoing may be made
132 apart of his answer in this case in addition to the matters
and facts as alleged in the original answer filed.
Solicitors for Defendant.
Unirep States oF AMERICA, District of Jowa:
—, , being duly sworn, deposes and says that I am the de-
fendant in the above-entitled cause; that the matters as set forth in
this amendment to my answer are true, so far as my own knowledge
is concerned, and those stated on belief I believe to be true.
Subscribed in my presence and sworn to before me by ——- ——
this — day of , 1880. i
133 Witness my hand and seal.
3
Notary Public.
WirtiAmM D. ANpDREws é al.
vs.
GEORGE Hovey and Other Causes.
M-r-. Rickel, West & Eastman, of Cedar Rapids, Iowa, and solic-
itors for complainants, do hereby consent that the amendment to the
answer to which the within is a copy may be used by defendants in
lieu of the one that Judge J. M. Love gave order to be filed on the
30th day of December, 1879, arid that this may be used in all the
cases, as the other was ordered to be used.
Jan. 22, 1880.
(Signed) RICKEL, WEST & EASTMAN,
Solicitors for Complainants.
154 (Endorsed:) Wm. D. Andrews, Geo. H. Andrews, e al. vs.
George Hovey. Amendment to answer and order of J. M.
Love, dist. judge, allowing same, filed in this cause and in all other
causes. Consent of Rickel, W. & E. to file this in lieu of one ordered.
Lake & Harmon, solicitors for defendants. Filed Mar. 1, 1880. E.
R. Mason, clerk.
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
1435 -. And on the Ist day of March, 1880, the defendant, by his
solicitors, filed in said cause an amendment to his answer in
the words and figures following, to wit:
(186_ Amendment to Answer.
UniTeED STATES OF AMERICA:
In the Circuit Court in and for the District of Iowa. In Equity.
WiiiraAM D. ANpReEws, GrorcEe H. ANDREws, ef al.
| vs.
GEORGE Hovey.
Now comes George Hovey, the defendant in the above-entitled
~ause, and, leave of court having been first obtained to make an
amendment to his answer herein filed, in addition to the matters
and facts heretofore in his answer in this cause filed, states—
That the invention patented by Nelson W. Green and claimed by
him to be his invention, as set forth in the bill of complain-
137 = ants herein, was, long prior to the time of such claimed in-
vention, mentioned and described in certain printed publica-
tions and books as follows:
In Reese Cyclopedia, published in London, England, about the
year 1819.
In volume 5, under the head or title of “ Borer in Rural Economy.”
And in volume 33, under the head or title of “Spring Draining
Pump,” and in volume 388, under the head of “ Well in Rural
Economy.” 3
Also as shown in plates, volume 1, plate 37, of said Reese Cyclo-
pedia, under the head of “Agriculture.”
Said work known as Reese Cyclopedia is not paged, but the sub-
jects are arranged in alphabetical order, and the above subjects are
described under the several heads and plates as stated.
1388 — Also ina certain book known as “ Mackenzie’s 5,000 Re-
ceipts,” published in Philadelphia about the year 1829, by
one J. J. Woodward, on page 500, under the head and title of ‘‘ To
Raise Water in all Situations.”
Also in a certain book known as “Livingston’s South Africa,”
being an account of the missionary travels and researches in South
Africa by David Livingston, published by Harper Brothers, in 1858,
1859, 1860, on page 59 of said book.
Also in certain letters patent of the United States issued to Levi
Disbro Nov. Ist, 1850.
Also that said claimed invention was known in all its various
parts, and the principles involved in said invention were used by
and known to the following persons residing at Preble, in the country
of Cortland and State of New York, to wit: William E. Tall-
1389 man, now deceased; Moses C. Tallman, Mrs. Moses CU. Tall-
man, Abram Vandenburg, Theodore Klock, Thomas Getman,
John Wilbur, Edwin Wilbur, Charles White, George Taylor, Calvin
Shepard, John D. F. Woolston, John Hilligus, and Ezra Hilligus,
who had knowledge of the same at Preble aforesaid.
=
f
ad
a
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 29
Also Henry C. Tallman, residing at Tully, in Onondaga county,
New York, who had knowledge of the same at Preble.
Also to Timothy H. Buxton, Chancey Buxton, Hiram Adams,
Alonson Burr, Jabez B. Warren, and Spencer Cronkite, who reside at
Warsaw, New York, and who knew of such use at Warsaw afore-
said.
Also to B. C. Hale, who resides at Quasqueton, Iowa, and to Elias
S. Harvey, who resides at Swanton, Iowa, and to 8S. W. Fenster-
maker, J. E. Trexler,and Martin Rust, who reside-at Water-
140 loo, Towa ,and to William Codling, w ho resides at “airbank,
Towa, al to M. B. Tims, John A. Davis, E. W. Purday, Al-
mon I. Francis, Oliver Marquett, Walton Hill, HA. King, W. H.
H. Morse, who reside at Independence, Iowa, and knew of ‘such use
at Independence, Iowa, aforesaid.
This defendant further states that after the time that the said Nel-
son W. Green claims to have invented said well or process the same
was abandoned by the said Green to the public, iid was used by
the public for more than two years before a patent was applied for;
wherefore defendant asks that the foregoing may be made a part of
his answers in this case in addition to the matters and facts
141 as alleged in the original answer filed.
(Signed) LAKE & HARMON,
Solicitors for Defendant.
Unitep Srates oF AMERICA, District of Iowa:
I, George Hovey, being duly sworn, deposes and says that I am
the defendant in the above-entitled cause; that the matters as set
forth in this amendment. to my answers are true, so far as my own
knowledge is concerned, and those stated on belief [ believe to be
true.
Subscribed in my presence and sworn to before me by George
Hovey this 25 day of February, 1880.
Witness my hand and seal.
[SEAL. ] (Signed) JED. LAKE,
Notary Public in and for Buchanan County, Iowa.
142 (Endorsed :) William D. Andrews, Geo. H. Andrews, et al. vs.
Gev. Hovey. Amendment to Answer. Filed Mar. 1, 1880.
E. R. Mason, clerk. Lake & Harmon for def’ts.
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
1438 And on the 14th day of June, 1880, the defendant, by
Lake & Harmon, his solicitors, filed in said cause a list of
wells made by defendant in the words and figures following to wit:
144 Notice of Provisions in Stipulation Dec. 13th, 1879.
UNITED STATES OF AMERICA:
In Cireuit Court for the District of Iowa.
WintiAM D. ANpREWws, GEORGE H. ANDREWS, ef al.
vs.
GEORGE Hovey.
In accordance with the provisions in the stipulation entered into
by and between the complainants and defendant herein, by Rickel,
West and Eastman, solicitors for complainants, and Lake and Har-
mon, solicitors for defendant, on the 13th day of December, 1879,
at the city of New York, and in pursuance of the conditions in
said stipulation, notice is hereby given that the defendants
145 hereinafter named, against whom suits have been brought for
infringing letters patent reissue No. 4572, dated May 9th,
1871, issued to Nelson W. Green, by the above-named complainants
in the above-named court, admit that they each have a well made
in the same manner, and the method of construction was the same
as that used by the above-named defendant, George Hovey, since
1871, lease No. 1260:
W. Butterfield, No. 1267.
H. Griswold, No. 1270.
William Hayes, No. 1275.
G. W. Rice, No. 1277.
I. Stratton, No. 1345.
J. Couch, No. 1855.
G. M. Miller, No. 1356.
C. Marton, No. 1417.
J. Burke, No. 1420.
M. Emisminger, No. 1422.
J. Hollett, No. 1424.
146 J. Klotzbach, No. 1425.
W. H. H. Morse, No. 1428.
W. B. Phelps, No. 1483.
I. S. Wileox, No. 1351.
EK. k. Jenks, —.
It is further admitted by the defendants whose names are here-
inafter written that they each have a well made in the same man-
ner and by the same process of construction as used by the defend-
ant, George Hovey, but that their wells were made and used and
were in successful operation before the date of said reissued letters
patent No. 4372, issued to Nelson W. Green and dated the 9th day
of May, 1871, and for that reason they are not liable to pay any
royalty or any costs or damages in the suits pending against them,
to wit:
147 No. 1264, Eli Cutshaw.
No. 1269, A. Hayeman.
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WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
No. 1344, S. L. Adams.
No. 1347, J. Durkee.
No. 1354, John Miller.
No. 1421, J. Hasbrook.
No. 1423, J. D. Keele.
No. 1468, Samuel Smith.
No. 1357, Pat Ney.
The following-named defendants state that the wells they have
are open-dug wells:
No. 1261, E. Baggot; 1272, J. Kesher; 1274, H. B. Philips; 1276,
W. E. Snow; 1279, Mont. Smith; 13849, Pat. Farrell; 1551, E. K.
Jinks; 1852, Dolph Jinks; 1419, William Davis; 1427, R. R. Plane;
1431, A. H. Trask; 1432, B. Glager; 1504, O. Harrington; 1520,
Bradford Lewis; 1466, J. Hockings; 1298,-A. B. Darvell.
The following-named defendants say that their wells are
148 made by boring down and into the water with a large augur
and removing the earth upwards out of the hole and insert-
ing the tubing, from six to sixteen inches in diameter, which tubing
forms the lining of the well, and inside of which is placed the
pumps, and therefore is different in its construction from any of the
wells named by the defendants whose cases have been selected for
trial by the complainants herein, to wit:
No. 13846, W. O. Curtis.
No. 1348, W. Daly.
No. 1351, E. K. Jinks, 2 wells.
No. 13853, Adam Kiefer.
No. 1359, W. Richmond.
No. 13862, C. Weitman.
No. 1546, David Zimmerman.
No. 1297, J. Bills.
— 1302, Nathan Hayes.
No. 1807, J. F. Spuir.
No. 13812, George H. Webb.
No. 1813, James Wood.
149 No. 1474, Merritt and Mills.
No. 1800, Edward Forrester.
No. 1278, Benjamin Miller.
. The following-named persons have places that they bought with
the wells on them, and don’t know when or how they were con-
structed :
No. 1266, C. C. Cadwell.
— 1418, J. Cling.
Of which facts the complainants and their solicitors will take due
notice, and the original of this will be filed with the clerk of the
United States circuit court at Des Moines, Iowa, to be attached to
the stipulation to which it refers.
(Signed) LAKE & HARMON,
Solicitors for Def’ts.
Due, legal, and timely service of this notice accepted by us, and
copy of same received at Cedar Rapids, Iowa, this 3d day of Feb-
32 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
150 ~=—ruary, A. D. 1880, but we refuse to be bound by the fore-
going stipulation or notice in any manner, & claim that it is
not in accordance with the agreement of Dec. 13th, 1879, made in
New York city.
(Signed) RICKEL, WEST & EASTMAN,
Solicitors for Complainants.
We further give notice to solicitors for defendants that we are
ready and willing to enter into stipulation contemplated by stipu-
lation made in New York city Dec. 13th, 1879, & that 1f we are to
proceed with the 5 cases selected for hearing by us we shall insist
on all other cases abiding the result of such cases, & that the same
decree be entered in all other cases as is rendered in said causes
so seected for hearing, except in those cases where
151 ~~ def’ts may show that their wells are open or dug wells.
(Signed) RICKEL, WEST & EASTMAN,
Solicitors for Complainants.
This was not returned to us until Feb’y 25th, 1880, at 3.50 p. m.
(Signed) LAKE & HARMON.
(End.:) U. S.cir. court. W. D. and G. H. Andrews eé¢ al. vs. George
Hovey. Lake & Harmon, sol’rs for def’t.
(End.:) William D. Andrews, Geo. H. Andrews, e¢ al. vs. Geo.
Hovey. List of parties whose wells are made by Hovey ; those made
before 1871: those who are dry; those who have them made with
large augur and lined. Filed June 14,1880. E. R. Mason, clerk.
152 And on the 14th day of June, 1880, the defendant, by his
solicitors, filed in said cause a notice as to proof of prior
use in the words and figures following, to wit:
153. + Uwnirep States oF AMERICA:
In Circuit Court for the District of Iowa. In Equity.
WitiiaAM D. ANDREws, GEO. H. ANDREWS, et al., Comp’ts,
vs.
GEORGE Hovey, Def’t.
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To the above-named complainants, and Rickel, West, and Eastman,
their solicitors:
You are hereby notified that in taking the testimony on the part
of the defense in the above-entitled — the said defendant will prove
the prior use of the pretended invention of Nelson W. Green by the
following-named persons in addition to those named in the answer
and the amendment to the answer: M. B. Tims, John A.
154. ~Davis, Almon I. Francis, O. Marquette, W. Hill, E. W. Purdy,
H. A. King, and W. H. H. Morse, who reside at Independ-
ence, lowa, and who knew of its use at Independence, Iowa; also J.
E. Trexler and Martin Rust, who reside at Waterloo, Iowa, and who
knew of said well at Independence, Iowa.
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WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 83
The depositions of said witnesses will be taken in due time, to be
used in the trial of said cause and all other causes tried in accord-
ance with stipulations heretofore made.
(Signed) LAKE & HARMON,
Solicitors for Deft.
Due, legal, and timely service of this notice accepted at Cedar Rap-
ids, Iowa, this 2d dav of January, 1880, by us.
(Signed) RICKEL, WEST & EASTMAN,
Solicitors for Complainants.
(End:) Wm. D. Andrews et al. vs. George Hovey. Notice as to
proof of prior use. Filed June 14, 1880. EE. R. Mason, clerk.
155 And on the 14th day of June, 1880, the defendant, by his
solicitors, filed in said cause a notice as to using testimony of
Edward Ross e al. on hearing in the words & figures following,
to wit:
156 Uwnirep Srates or America, District of Lowa:
_In Circuit Court. In Equity.
WititiAM D. ANpReEws, Geo. H. ANDREws, e¢ al., Complainants,
vs.
GrEoRGE Hovey, Def’t.
To the above-named complainants and Rickel, West and Eastman,
their solicitors:
You are hereby notified that at the hearing of this cause and the
four other causes selected by you to be tried in the actions brought
by you against this and other defendants for infringement of letters
patent reissue No. 4372, dated 9th May, 1871, the defendants will
ask the court to admit the testimony of Edward Ross and
157-6713 John H. Campbell for the purpose of proving prior use
in these cases.
(Signed) LAKE & HARMON,
Solicitors for Def’t.
We truly accept due servace of this notice and the rec’t of a copy
of the same at Independence, Iowa, this 2d day of April, 1880.
(Sigiied) | RICKEL, WEST & EASTMAN.
Solicitors for Complainanis.
(Endorsed :) Wm. D. Andrews et al. vs. George Hovey. Notice that
def’t will use testimony of E. Ross & J. H. Campbell at hearing.
Filed Jun- 14, 1880. E. R. Mason, clerk.
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
672 Inthe Circuit Court of the United States for the Southern
District of lowa, Central Division. In Jiquity.
Wm. D. Anprews ef al., Complainants,
US.
| GEORGE Hovey, Respondent.
| This suit, with a large number of others against other defendants
| now pending in this court, is based upon reissued letters patent No.
4372, granted to Nelson W. Green, one of the complainants, under 1
date of May 9, 1871, the original patent, No. 73425, bearing date <
January 14, 1868, and having been issued for an “improved method
of constructing artesian wells.”
The bill alleges an infringement on the part of the defendant, and +
prays for an injunction, accounting, damages, and further relief.
The answer, in substance, denies that Green was the original in-
ventor of the alleged improvement, avers that the alleged invention
was known and in public use for more than two years prior to the
date of the original letters patent; that Green, if he was an original de
inventor, abandoned his inventions and knowingly permitted its
public use for more than two years before applying for a patent ;
that the reissue is a departure from the original letters patent and
embraces different and more extensive claims than are covered by
the original, and also denies that defendant has infringed upon the
| rights and invention held and owned by the complainants. 4
| As already stated, there are pending in this court a large number
of causes brought by the complainants for alleged infringements
upon their rights, and in the district of Minnesota similar suits are
pending, in which the issues are substantially the same.
For convenience’s sake it was agreed that these causes should be
heard at one and the same time before the judges of the district of
Minnesota and the districts of lowa,and accordingly at the October
term, 1882, of this court such hearing was had and the questions at
issue were very fully and ably presented, bothin print and by oral
argument, before the court. At the time there was pending before
the Supreme Court at Washington the case of Wahl vs. Hine,
673 on appeal from the district of Indiana, in which cause this
same patent was involved, and it was hoped the decision of 7
that case would give us a final and authoritative decision upon the -
more important questions discussed in this court.
When the judgment in Wahl vs. Hine was announced, however,
it appeared that the Judges were equally divided in opinion therein,
eight only of the members of that court having sat in the case, and
hence no opinion upon the merits was reached or announced in s
that cause.
It became, therefore, the duty of this court to consider the ques-
tions submitted unaided by the decision in Wahl vs. Hine, and we
have endeavored to give them the consideration which their im-
portance demands. Upon many of the questions involved a very
large amount of evidence has been adduced, and the questions of
Jaw and fact have been ably argued and presented by the counsel P
in the cause.
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WILLIAM PD. ANDREWS ET AL. VS. GEORGE HOVEY. 35
Stoneman, Rickel & Eastman, Hubbard, Clark & Dawley, A. R.
West, Rogers & Rogers, for complainants; Lake & Harman, Wilson
& Gale, for defendants.
SHIRAS, District Judge:
Assuming for the present that Nelson W. Green is entitled to
the credit of being the inventor of what is commonly known as
the “driven well,” we shall first consider the defense of abandon-
ment—that is to say, the averment that he allowed the use of his
invention to become part of the property of the public without
asserting his right to a patent for the protection of his rights as an
Inventor.
In the case of Shaw vs. Cooper, 7 Peters, 292, it was held that
“vigilance is necessary to entitle an individual to the privileges
secured under the patent law.” It is not enough that he should
show his right by invention, but he must secure it in the mode re-
quired by law, and if the invention, through fraudulent means,
should be made known to the public he should assert his right im-
mediately and take the necessary steps to legalize it.
The patent law was designed for the public benefit as well as for
the benefit of inventors. * * * No matter by what means an
invention may be communicated to the public before a patent is
obtained, any acquiescence in the public use’ by an inventor will be
an abandonment of his right. If the right were asserted by him
who fraudulently obtained it, perhaps no lapse of time could give
it validity.
But the public stand in an entirely different relation to the in-
ventor.
The invention passes into the possession of innocent persons who
have no knowledge of the fraud, and, at a considerable expense,
perhaps, they appropriate it to their own use. as
A strict construction of the act as it regards the public use of an
invention before it 1s patented is not only required by its letter and
spirit, but also by sound policy. * * * The doctrine of
674 presumed acquiescence, where the public use is known or
might be known to the inventor, is the only safe rule which
can be adopted on this subject. * * * Whatever may be the
intention of the inventor, if he suffers the invention to go into
public use through any means whatever without an immediate as-
sertion of his right, he is not entitled to a patent, nor will a patent
obtained under such circumstances protect his right.”
In the ecdse of the Consolidated Fruit Jar Co. vs. Wright, 94 U.S.,
96, it is said that the “ inventor must comply with the conditions
prescribed by law. If he fails to do this he acquires no title and his
invention or discovery, no matter what it may be, is lost to him and
is henceforward no more his than if he had never been in anywise
connected with it. It is made thereupon, as it were by accretion,
irrevocably a part of the domain which belongs to the community
at large.”
From the evidence in this cause it appears that in the summer
of 1861 Nelson W. Green was a resident of Cortland, New York ;
EN aati a
36 WILLIAM D. ANDREWS ET AI. VS. GEORGE HOVEY.
that he was engaged in drilling and organizing volunteers for the
army, and especially in connection with the 76th regiment of New
York infantry, of which regiment he was appointed colonel; that
whilst thus employed his attention was called to the subject of pro-
curing pure water for the use*of his men, and that he set about to
devise a means by which water could be readily procured from
beneath the surface of the earth, thus avoiding danger from poisoned
wells and springs, and also from the risk of being cut off from ac-
cess to the ordinary sources of supply when in the presence of the
enemy.
The patentee himself testifies that in the summer of 1861 he had
devised in his own mind a method of accomplishing this result,
which he explained first to his drill squad and then to the officers
of his regiment, and which consisted in driving a rod sharpened at
the end into the ground and into. the water-bearing stratum, then
withdrawing the same and inserting a tube through which the water
could be drawn by an ordinary style of pump. As a test of the
method proposed, under the direction of Col. Green, an experiment of
driving a rod down to the water was made near his house, and this ex-
periment was followed by driving a well at the fair grounds at Cort-
land at the expense and for the use of one Graham, who had the
contract for furnishing food and other supplies at the camp on the
fair grounds, This well was driven between the Ist and 15th of
October, 1861, and was used generally by the men in camp as well
as by Graham and his employés. } |
We further find in the testimony of Colonel Green the following:
Question 60. “After this experiment at the house and the making
and use of the well at the fair grounds, what was your opinion as
to the practicability of making wells by that process, either for gen-
eral use or for the purposes of the army, as you had originally in-
tended?”
Answer. “ The result of the two experiments referred to had upon
my mind the effect to convince ine of the entire practicability and
feasibility of the process for all the purposes named in the ques-
tion.”
675 Question 61. “ Did you take any steps, give any orders or
directions for the procurement of material to be taken with
your regiment into the field for the purpose of making wells to sup-
ply that regiment with water wherever it might be situated ? ”
Answer. ‘I gave Lieutenant Mudge orders to procure such ma-
terial for the purposes named, and gave Adjutant Robinson orders to
furnish him with transportation for the same, and when‘at Albany
made arrangements with the quartermaster general for the trans-
portation of that material with the regiment when it went to the
front.”
By the testimony of the patentee himself it is shown that the in-
vention claimed by him was perfected in conception in the summer
of 1861, was demonstrated to be a success by practical use in Octo-
ber, L861; that the patentee caused the necessary apparatus to be
procured to be taken with the regiment for its use when it moved
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. OV
to the seat of war, and arranged with the authorities at Albany for
the transportation needed therefor.
The testimony of the patentee shows beyond the possibility of a
doubt that his object and purpose in 1861 was to provide a means
of supplying the men under his care with pure water, and protecting
them from the danger to be apprehended from the polluted or poi-
soned springs and wells, or from being cut off by the enemy from
access to the usual sources of supply, and to this end he caused the
apparatus to be used in driving wells to be procured and transpor-
tation therefor to be provided.
The sinking of the well at the fair grounds at Cortland and the
providing ty means for driving these wells whenever and wherever
they might be needed by the regiment establishes beyond question
the intent on part of Col. Green that this invention should be pub-
liciy and commonly used by his regiment at any and all times and
places. His own testimony shows that he explained his invention
and the means of carrying it into effect, first to his drill squad and
then to the officers of his regiment, and subsequently consented to
the sinking and public use of jthe well at the camp ground, and yet
he never cautioned any one to keep the method a secret, nor is it
shown that in 1861 he ever mentioned to any one the idea of obtain-
ing a patent or that he purposed doing so orthat he took any action
looking to that end. All that he did tended to spread the knowl-
edge of the mode of making these wells and of the success attending
their use, and nothing whatever is shown indicating an intent to
restrict the right to make and use the same to himself as a patentee.
It is an admitted fact that Col. Green was a man of intelligence
and education, and he must have known what the law required of
him in ease he desired to secure his rights as an inventor under the
provisions of the patent laws. He knew, then, that to secure his
rights, if he desired to procure a patent, he must apply therefor be-
fore permitting his invention to pass into general or public use.
His o own testimony conclusively shows that he gave publicity to his
invention and consented to, nay, aided, in making the use
676 thereof common and public. There is nothing in the evi-
dence showing that he purposed or intended to make further
or different experiments with a view to perfecting his discovery.
He himself expressly testified that the experiment at his house
and the driving and use of this well at the camp ground convinced
him of the fe: asibility of the process in making wells either for gen-
eral or army use, or, as counsel for complainants, | in their brief upon
the facts, pages 17 and 18, state 1t—
“'The two experiments fully and satisfactorily demonstrated the
general practicability of the process where no rock intervenes.”
The evidence shows conclusively, therefore, that the invention
was thought out and was put into satisfactory use, the use being an
open and public one, whilst Col. Green’s regiment was in camp at
Cortland, and the necessary machinery aud tools, with transporta-
tion therefor, were provided for continuing the construction and the
open and public use of other wells, and yet no step was taken by
Col. Green for the procurement of a patent, nor was there at that
38 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
time any act done or statement made indicating a purpose or intent
upon his part to apply for a patent in the future.
It is urged, however, that the reason why an application for a pat-
ent was not made at that time was because Col. Green had become
involved in serious difficulties on account of the shooting of Captain
McNett, one of the officers of his regiment, on the 6th of December,
1861.
If it appeared from the evidence that Col. Green had in the fall of
1861 taken the initiatory steps for the procurement of a patent or
had even unmistakably announced his intention so to do and it ap-
peared that the accomplishment of such purpose was interrupted by
the complications and difficulties arising out of the shooting of Cap-
tain MeNett, it might then be claimed that these difficulties formed
an excuse for the long delay in applying for a patent on part of Col.
Green.
But it will be borne in mind that the idea of this mode of con-
structing a well was thought out in the summer of 1861, and the
well at the camp ground was sunk before the 15th of October, and
the shooting of MeNett was not until December 6.
It is also shown by Col. Green himself that he gave the proper
orders for the construction of the apparatus necessary to be used in
sinking wells and that when in Albany he arranged for the trans-
portation thereof with the regiment when it moved to the seat of
war. If he thus had time and opportunity enough to provide
the means necessary to furnish these wells for the common and
public use of his regiment, can it be fairly claimed that he did not
have time and opportunity to at least announce his purpose of pro-
curing a patent, if such was then his intent ?
It would seem that the utmost that can be said of the effect of the
difficulties resulting to Col. Green from the shooting of Capt. McNutt
is that thereafter his attention was so fully occupied thereby that he
cave vo further thought to the subject of driven wells at that
677 time,and henee did not in his own mind reach the conclu-
sion that he would apply for a patent until several years had
elapsed and these difficulties had begun to pass away and until it
was brought to his attention that through the use of this mode of
driving wells other parties had reaped large pecuniary benefits.
But ‘during this delay, extending to May, 1866, a period of over
four years, the pablic had acquired rights ‘through the open and
uninterrupted use of the discovery.
What the causes were that led to this long silence on the part of
-Col. Green are not so material as the fact itself that he made public
the knowledge and use of his invention and then for over four
years remained wholly silent and took no action for the procure-
ment of a patent.
Can there be any question that Col. Green did permit his inven-
tion to go into public use without an immediate assertion of his
rights?
In Egbert vs. Lippman 104, U.S., 333, it was held that “ to con-
stitute the public use of an invention it is not necessary that more
than one of the patented articles should be publicly used,” it being
;
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 39
also held in the same case that “if an inventor, having made his
device, gives or sells it to another to be used by the donee or vendee
without limitation or restriction or injunction of secrecy, and it is so
used, such use is public, even though the use and knowledge of the
use may be confined to one person.”
It is not questioned that the well at the camp ground was made
with the knowledge and consent of Col. Green. It was for a public
use, being constructed at the expense of the sutler, Graham, for the
purpose of supplying water for use in the cook-rooms, as well as for
general use by all connected with the regiment.
There was no effort made to keep the mode of its construction
secret, but rather the contrary.
When the regiment left Cortland, New York, Col. Green exercised
no control over this well, nor did he cause it to be taken up or other-
wise kept from public use or knowledge. If he was the inventor of
that description of well he certainly gave to Graham the full right
to construct and use the well and to permit its use by others with-
out any limitation whatever or any injunction of secrecy, thus
bringing the case within the rule laid down in Egbert vs. Lippman,
even if there were no further facts showing acquiescence in the pub-
lic use of the invention; but these facts are not wanting, for it is
proven by Col. Green himself that he caused the necessary tools and
pipes to be procured for the use of the regiment when it went to the
front, showing clearly that he proposed and intended to permit any
number of wells to be sunk and used that might be needed by the
regiment, thus showing that he contemplated a continuous public
use of the invention without restriction or limitation.
Again, the evidence shows that a large number of driven wells
were made and used in and about Cortland and neighboring places
during the years 1862, 1863, 1864, and 1865. It is now claimed
that Col. Green had not actual knowledge of the existence of
678 these wells, but was he not bound to know that the natural
result of what he himselt had done and had caused to be
done in the way of giving publicity to the success which attended
this mode of making wells would be to spread their use by the pub-
lic, unless he promptly prevented such result by procuring a patent,
and can he now be heard to say that he did not know nor have
reason to know that the use of these wells was becoming common
in his own neighborhood, when the facts show that such was the
natural result of his own acts? |
But we are not left to mere inference upon the question, as there
is testimony showing satisfactorily that he had knowledge of the
existence of a portion, at least, of these wells, and despite his own
testimony, wherein he endeavors to destroy the weight of his testi-
mony either by direct denial or by claiming that he did not, in fact,
recognize certain wells which came under his notice to be driven
wells, yet we think the preponderance of evidence is against him on
this proposition, and that it must be held that he knew that such
wells were being made and used.
We find, therefore, as conclusions of fact:
1. That in 1861 Col. Green’s purpose in devising his method of
40 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
driving wells was to furnish a ready means whereby the men of his
regiment could procure a supply of pure water, and that he did not
at that time contemplate procuring a patent therefor, and that he
put his method of driving wells into public use in 1861 for the bene-
fit of his regiment, and thereby dedicated or abandoned his inven-
tion to the public.
2. That his invention was in open and public use, with his know!l-
edge and acquiescence, for more than four years before he applied
for a patent thereon.
From these conclusions of fact it necessarily follows that the let-
ters patent originally granted and the reissued letters based thereon
must be held invalid and void.
II. It is also urged on behalf of defendants that the reissued pat-
ent enlarges the scope of the original patent, is broader in its terms,
including improvements and principles not contained in the original
specifications, and is therefore void.
This defense demandsan examination and determination of what
Col. Green’s original invention consisted and of what is embraced
within and covered by the reissued patent.
We will consider the latter proposition before proceeding to the
former:
Wim. D. Andrews, one of the complainants, in giving his testi-
mony, is asked whether he has read and understands the reissued
patent, and, if so, to describe it, which he does in the following lan-
ouage: :
“The invention is for a method of procuring water from the earth
by means of a tube inserted into the earth down to and into a water-
bearing stratum, and attaching to such tube, in cases where the
water does not flow naturally, a pump by an air-tight connection,
and by the operation of the pump producing a vacuum within
the tube which forms the body of the well and its lining,
679 thereby causing the water in the surrounding earth, un-
der the pressure of the atmosphere, to rush into the well
formed by the tube, and furnishing a practically inexhaustible sup-
ply of water by the means as stated and described.”
In the opinion of Judge Benedict, in the Carman case, cited at
length by complainants, it is stated that “the novelty consists in mak-
ing the well pit to consist of the tube of a pump connected tightly
with the earth; this is accomplished by driving into the earth the
tube to be used as a tube of a pump and at the same time as the pit
of the well.
“This manner of inserting the tube renders it possible, by means
of a pump attached to the tube, to create a vacuum in the pit of the
well, and at the same time in the water-bearing stratum of the
earth.”
In the printed argument of counsel for complainants it is said
that “the drive well invented by Col. Green left no open space be-
tween the lining and the suction pipe, and is based upon the prin-
ciple that if a vacuum is formed in the earth at the ordinary depths
by the action of the suction pump the atmospheric pressure commu-
nicated through the earth to the water will cause it to respond to
ll Ay “Se
WILLIAM PD. ANDREWS ET AIL. VS. GEORGE HOVEY. 4]
the vacuum produced within the well, whose lining is itself the suc-
tion pipe of the well and perfectly air tight, the earth serving asa
filter.”
It is not necessary to extend these quotations to show that the
principle which it is claimed constitutes the discovery or invention
of Col. Green, as described in the reissued patent, is that the produc-
tion of a vacuum in the earth by means of an air-tight tube driven
into the earth, to which is attached a suction pump, will greatly in-
crease the supply of water.
To-produce this vacuum it is necessary that the tube forming the
lining of the well should be in such close contact with the surround-
ing earth as to be air-tight, and it is claimed that driving the tube
into the ground, whether with or without originally perforating the
earth with a rod, constitutes a mode of constructing a well which
practically results in producing a well whose lining, to wit, the tube,
is In air-tight connection with the earth. In other words, in order
to successfully apply the principle it is absolutely essential that the
tube forming the lining of the well should be in such close contact
with the earth that the air cannot pass down around the outside of
the tube, and the pump used in drawing up the water must also be
attached to the end of the tube by an air-tight connection. Unless
both of these conditions are. fulfilled it is impossible to create a
vacuum in the tube and about the portion of it inserted in the
water-bearing stratum, and as the creation of this vacuum is the
essential and only means of applying the principle which it is
claimed constitutes the chief merit of Col. Green’s invention or dis-
covery, it follows that in order to protect such a discovery by a patent
it must be included within the specifications. ‘This may be done by
either a proper description of the result to be obtained or by the
means employed to accomplish the result—that is to say, it would
be sufficient if it was stated that by the use of certain prescribed
means a vacuum in and about the tube would be created and thereby
the supply of water would be increased, or if it was stated
680 that the tubing of the well was so driven as to be made air-
tight by contact with the surrounding earth and the pump
to be used was affixed to the tube by an air-tight connection. In
the latter case the result reached or the principle put into operation
would not be described, but, as the means described must necessarily
produce the result or apply the principle, it is held sufficient to de-
scribe the means employed without specifying the principle which
is thereby brought into play. Indeed, it is not necessary that the
inventor, to be entitled to a patent, should himself understand the
abstract principle which hisinvention brings into use. It is sufficient
if he is the inventor of a means whereby a new and useful applica-
tion of the abstract principle is brought about. Still, as already re-
marked, it is necessary that in the patent and specification the new
and useful application of the principle must be described, either by
setting forth the result obtained, with the means of its accomplish-
ment, or else by such a description of the means employed as will, if
followed, necessarily produce a result which embodies the practical
application of the principle involved.
I—16
Bee te
RI ERD Sta cg alge
42 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
Let us now examine the specifications originally filed by Col.
Green, and see whether there is embraced therein the application of
the principle of utilizing atmospheric pressure through the creation
of a vacuum in the tube and the earth surrounding it, where it
penetrates the water-bearing stratum.
The description of the invention is set forth in the following lan-
guage :
“My invention consists in driving or forcing an iron or a wooden
rod with a steel or iron point into the earth until it is projected to
or into the water, and then withdrawing the said rod and inserting
in its place a tube of metal or wood to the same depth, th rough
which and from which the water may be drawn by any of the usual
well-known forms of pumps.”
Finally, in setting forth his claim, he does so in the following
terms :
“Waving thus fully described my invention, what I claim and
desire to secure by letters patent in the herein- described process of
sinking wells where no rock is to be penetrated, viz., by driving or
forcing down a rod to and into the water under ground, and with-
drawing it and inserting a tube in its place to draw the water
through, substantially as ‘herein described.”
It certainly cannot be successfully claimned that in these statements
it is set forth in express terms that the principle to be utilized is the
atmospheric pressure forcing the water to and into the tube through
the agency of a vacuum created in the tube and in the earth at the
lower end of the tube, where it penetrates the water-bearing stratum.
There is not to be found in any part of the specifications any ref-
erence to a vacuum, either in or out of the tube, nor any mention
of atmospheric pressure created thereby. If the application of this
principle formed the material and all important part of Col. Green’s
invention in 1861 and is now claimed in argument he certainly
failed to set it forth in express terms in his specifications forming
part of the original patent, nor can it be inferred from the descrip-
tion of the means to be employed that he then proposed to
681 create a vacuum by making the well lining air-tight, and by
attaching a pump thereto by an air-tight connection.
He describes a driving rod having a swell thereon which is to be
driven into the ground and then withdrawn, and a tube of a diam-
eter somewhat smaller than the diameter of the swell of the drill
rod is to be inserted in the hole thus made.
In no part of the description is it said, either expressly or by fair
implication, that the tube when inserted must fit so closely into the
opening made by the rod that no air can pass down on the outside
of the tube to the water, nor is it stated that the pump must be
attached by an air-tight connection to the top of the tube.
A person can follow with exactness all the instruction therein
given, and yet it would not necessarily follow that he had excluded.
the air from the lining of the well or from the water- bearing stratum
at the place where the tube penetrated the same.
In other words, the description of the means to be employed as set
forth in these specifications does not show that one of the results
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 43
arrived at is to render the lining of the well air-tight and to have
attached thereto a pump by an air-tight connection. “The deser iption
of the means to be employed can be carried out in practice without
making an air-tight lining or tube, and bence without forming a
vacuum around the bottom of the tube or in it. This being true it
follows that it cannot, from the description of the means employ ed,
be inferred that Col. Green then intended to claim as part of his
discovery or invention the application of the principle twat by cre-
ating a vacuum in and about the tube, the same having been made
air-tight, the flow of water would be largely increased.
He did not claim it in express words, and the description of his
invention and the means to be used in carrying the same into prae-
tical use fail to show that such was the main or even a necessary
part of his invention.
In our judgment his invention or discovery is fully and fairly de-
scribed in the language of his own claim, to wit:
“What I claim and desire to secure by letters patent in the herein-
described process of sinking wells, where no rock is to be penetrated,
viz, by driving or forcing ‘dow narod to and into the water under
ground, and w ‘ithdrawi ing rit and inser ting a tube in its place to draw
the water through.”
What he sought to accomplish was to devise a rapid, easy, and fea-
sible means of reaching an underground supply of water, in such a
mode that any ordinary pump could be applied to bring it to the
surface, and his plan was to drive down a rod into the w ater, with-
draw it, and then insert a tube through which the water could be
drawn by any ordinary kind of pump.
In our judgment the evidence introduced by complainants shows
that this was all that Col. Green sought to do in 1861, and that in
making his experiments at that time he did not contemplate
682 or conceive of the idea that the tube should be made air-
tight so as to create a vacuum in it and about it, and thereby
utilize the atmospheric pressure. Hence it is that in the specifica-
tions attached to the original patent no mention is made of atmos-
pleric pressure or of a vacuum in and about the tube, nor is it
stated, in cescribing the means to be employed in making the wells,
that the tube must be air- -tight in its connection with the surround-
ing earth, or that the pump must be attached thereto.
It is inexplicable, if it was intended to embrace in the original
patent the operation of atmospheric pressure in the earth through
the creation of a vacuum, which is now claimed to constitute the
chief features and merit of the driven well, that the specifications
contain no reference thereto, either expressly or even by fair impli-
cation.
We conclude, therefore, that the original patent cannot be so con-
strued as to embrace the application of this principle.
Turning now to the specifications of the reissued patents, what
do we find? In the first place it is stated “ that the hole or opening
is made by the mere displacement of the earth, which is packed
around the instrument, and not removed upward from the hole as
itis in boring;” and it is further said that “I prefer to employ a
44 - WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
pointed rod, which, after having been driven or forced down until
it reaches the water, I withdraw, and replace with a tube made air-
tight throughout its length, except at or near its lower end ;” and,
further, “I attach to the tube by an air-tight connection any known
form of pump.”
In these portions of the specifications we find it provided that the
earth must be packed around the tube forming the lining of the
well; that this tube must be air-tight throughout its length, except at
or near the lower end, which penetrates the water, and the pump
used therewith must have an air-tight connection with the tube.
Under these specifications it is claimed by complainants that the
main feature of the discovery consists in the utilization of the atmos-
pheric pressure through the creation of the vacuum in and about
the tube. (See questions 11 and 12, testimony of Wm. D. Andrew,
pages 210 and 211, vol. 1, of complainants’ record.)
Giving these specifications the construction which complainants
put thereon, it follows that the reissued patent covers—
1. The process of sinking wells by foreing down a rod or tube to
the water-bearing stratum without removing the earth upwards as
in boring or digging.
2. Creating a vacuum in the tube forming the lining of the well
by making the tube air-tight, except at the lower end, compacting
the earth around the tube, and by attaching a pump with an air-
tight connection to the tube. 3
In the argument of counsel, as well as in the testimony of com-
plainants, it is urged that the great merit of Col. Green’s invention
consists of the discovery of the effect of the vacuum thus created.
According to the view we take of the original patent, it did not
cover or describe the application of this principle.
It follows, therefore, that the reissue embraces the application of
animportantand material principle not found in the original.
683 The rule is well settled that a reissue can be validly granted
only for the same invention which was originally patented.
If the reissue goes beyond this and covers other and different in-
ventions or improvements suggested by the use of the original inven-
tion if will be void. See Bun vs. Durgee, 1 Waliace, 531; Manufact-
uring Co. vs. Ladd, 102 U.8S., 408; Miller vs. Brass Co., 104 U.S.,
300; James vs. Campbell, 104 U.S., 356; Manufacturing Co. vs. Cor-
bin, 108 U.S., 780.
As we view the evidence in this case, we find that Col. Green in
his original invention did not embrace the idea of creating a vacunm
in the lining of the well for the purpose of utilizing the pressure of
the atmosphere, nor did his original patent, either expressly or im-
pliedly, cover or describe the application of this principle; that this
idea of utilizing the atmospheric pressure was an afterthought on
the part of complainants; that to protect it as a part of Col. Green’s
invention it was evidently necessary that the specifications should
be enlarged; that the reissue was obtained for the purpose of cover-
ing thereby this idea of atmospheric pressure caused by a vacuum
in an air-tight tube.
That the complainant now claims that the chief merit of the
—
biel ee,
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 45
invention consists in creating a vacuum in the tube and. the earth
surrounding it, where it penetrates the water-bearing stratum, and
through the pressure of the atmosphere forcing a larger and more
continuous supply of water into the tube forming the ‘lining of the
well, and that the application of this principle is provided “for and
embraced within the specifications of the reissued letters patent.
Giving these specifications the construction claimed therefor by
complainants, it follows, in our judgment, that the reissue departs
widely from the original and embraces the application of a princi-
ple not covered by the original invention of Colonel Green, and con-
sequently that the reissued patent must be held void.
In determining this question of the validity of the reissued letters
patent we have assumed that the construction put thereon by com-
plainants and their counsel is legally correct, to wit, that there is
embraced therein the principle of utilizing atmospheric pressure
by creating a vacuum in the tube and about the same where it
penetrates the water-bearing stratum.
We have also assumed, without questioning it, that the theory of
complainants in regard to the creation of a vacuum about the tube
and its effect in increasing the flow of water into the tube through
the pressure of the atmosphere upon the other portions of the water-
bearing stratum is correct. In the view we have taken of the case
it has not been necessary to investigate fully the scientific points
involved in the latter proposition, but we will only say that the ex-
periments made before the court and the evidence adduced on this
question in physical science has not fully demonstrated to our satis-
faction the correctness of the theory relied upon by complainants.
Upon the issue of originality of invention by Col. Green a large
amount of evidence has been adduced with a view of showing
684 that this method of sinking wells had been substantially de-
scribed in various publications antedating Col. Green’s dis-
covery, and also that wells had been sunken by this method at dif-
ferent times and places. We do not deem it necessary to specially
mention more than two of these alleged prior discoveries. Whilst it
cannot well be questioned that it is shown that in some of the other
instances a near approach was made to the method subsequently
adopted by Col. Green, yet we do not think it can be said that these
isolated instances were anything more than mere experiments, not
developed to an extent sufficient to enable the court to say that they
clearly anticipated Col. Green’s discovery. There are two instances,
however, which cannot be sosummarily disposed of, these being, first,
the well at Independence, Iowa, and, second, the wells driven at
Milwaukee, Wisconsin, by EK. W. Purdy.
In regard to the well at Independence the query is whether it was,
in fact, constructed in 1861, as claimed by defendants, or in 1866, as
averred by complainants. The defendants claim that there were two
wells driven at Independence, cne in the early summer of 1861, the
other in 1866, while the complainants aver that there was but one
well—i. e the one driven in 1866, and that the witnesses who place
it in 1861 are simply mistaken In the date.
In several of the cases heretofore heard touching the validity of
46 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.
Colonel Green’s patent the question in regard to this Independence
well has been presented, and it has been therein held that the con-
flict in the testimony was to be reconciled by holding that the wit-
nesses for the defendants, whilst testifying truthfully to the existence
. and character of this well, had mistaken the date and placed an
event in 1861 which really took place in 1866. If the evidence sub-
mitted to us was substantially the same as that submitted in the
cases referred to we should not feel disposed to re-examine the ques-
tion at issue, but we have had presented to us much additional evi-
- dence largely intended to prove the date of the driving of the well
‘in question by proving the date of other facts which are so connected
’ with the existence of the well that proof of the date of the former
‘unmistakably fixes the time when this well was driven and in use.
Thus a number of witnesses, who probably could not by a mere
effort of memory fix the month or the year when they saw and used
the well, testify to facts which corroborate their recollection that they
saw and used this well when the soldiers were enlisting at Independ-
ence and forming companies, commanded by Captains Lee and Hord,
for the purpose of entering the Union Army.
That these companies were organized at Independence is a fact
beyond dispute. So with other facts, the date of which is not open
to question, such as the time when Sherwood and Kimball kept the
hotel at Independence, the date of Col. Lake’s marriage, the use of
the well by the ericket club, who played cricket upon the grounds
adjoining the lot where the well was driven, and which club was
broken up by a number of its members entering the army in 1861.
By such facts as these the defendants have greatly strength-
685 ened their position in regard to this well at Independence,
3 and while it cannot be doubted that there is much plausibility
in the argument urged against the reliability of this evidence, still
it seems to us that the preponderance of the evidence upon this
question is with the defendant, and that it must be held, as a con-
clusion of fact—
1. That in the early part of the summer of 1861 there was con-
‘structed at Independence, lowa,a driven well, which proved a success.
2. ‘That this well was constructed by driving a tube down into the
water-bearing stratum and attaching to the tube a pump, by which
the water was drawn up through the tube im apparently an inex-
haustible quantity.
It does not appear, however, that any other wells came into.use
by reason of the driving of the one under consideration ; and if the
decision of the court depended solely upon the effect to be given to
the driving of this one well we might well doubt whether it would
not be proper to treat it asa mere isolated experiment, which would
not be held to defeat the rights of an independent inventor.
In regard to what may be called the Milwaukee wells, it is shown
hy the testimony of EK. W. Purdy that in 1849 and 1850 he was in
the business of making wells at Milwaukee, Wis.; that he used iron
rods about two inches in diameter, and made so they could be
coupled together. The first rod was about 16 feet long, the lower
end being in shape of a drill. This rod was worked up and down
WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 47
by a rope running over a gin pole, the rod being raised up and down,
and in that way the earth was displaced by the rod as it went down.
Tubing of about four inches in diameter was driven down as the rod
progressed. This tube formed the lining of the well. No earth was
removed upward except in case of striking quicksand, when a long
sheet-iron bucket with a valve in the bottom was used to bring up
the quicksand. When the tube had been forced down into the w ater,
if the water did not come to the surface, a pump was used, the tube
to which the pump was attached being placed inside the tube first
forced down, the latter forming the lining of the well.
It is shown by the testimony rof Purdy that he drove a large num-
ber of these wells, and the places where and the parties for whom
they were driven are given in several instances. In some cases the
welis were driven to the depth of 60 and 100 feet.
In these wells thus driven there was used, first, a rod for punctur-
ing the earth, which was driven down to the water-bearipg stratum ;
second, into the aperture thus made a tube was forced, which was
in close contact with the earth and which formed the lining of the
well, and through which the water either flowed naturally or was
drawn by the aid of a pump inserted therein.
Comparing this method of driving wells and its results with that
adopted by Col. Green in 1861 and ‘described in the specifications
attached to the original letters patent, we confess our inability to see
any substantial difference.
686 What he expressly claimed in his original specifics ations
was the process of sinking wells by driving or forcing down
a rod to and into the water under ground and withdr: awing it and
inserting a tube in its place to draw the water through and itis just
this process in substance that was emploved in Milwaukee.
These wells driven at Milwaukee cannot be set aside as abandoned
experiments. Purdy testifie
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