14 F. (2d) 650 At Rocky Point there is a large dam from which 31 second feet were flowing through a canal to the Blossom, McIntire and Jenkins ranches. A large portion of this water was running on alkali and sagebrush land, and on 200 acres of land having a priority subsequent to 1874. Further down the river was a large dam backing up the water approximately 4 miles. There is also a general statement that other water users whose priorities are subsequent to those of plaintiff were permitted to take water in violation of plaintiff's rights; that much water was distributed on wire grass land, among tules, and along miles of sloughs, many of which were bank full, from which loss by evaporation was excessive. W. H. Settelmeyer, a civil engineer heretofore employed by the United States government and by the state of Nevada in making irrigation investigations, in May of this year inspected water conditions on the Humboldt river below Elko. He states that: "The irrigation of very many of the large ranches below the Horseshoe is accomplished by the same crude method which was employed by them from the earliest days to the present time, and which consists of the building of tight dams in the river only, backing the water up river for a great distance so that it will overflow the banks and flood the land, indiscriminately watering grass, tules, willows, and other crops of doubtful value." On the dividing line between the Dunphy and Argenta ranches there were 600 acres of land covered by water backed up by dams in the river. On the Faris ranch below the Argenta, there were about 900 acres under water. At the Horseshoe ranch he found all the headgates closed, and about 120 second feet of water flowing in the river. At Comus, near Golconda, at the west end of the Battle Mountain Basin, there were but 35 second feet. Thus below the Horseshoe ranch in the Battle Mountain district 85 second feet disappeared. The allegations as to wasteful use and allowance of plaintiff's water to junior appropriators, supported as they are by affidavits of Hinckley and Settelmeyer setting out and describing specific instances, are met by a general statement in the affidavit of the state engineer that he and his assistants have been and now are "distributing the water of Humboldt river and its tributaries to the claimants and appropriators thereof strictly in accordance with said order of determination"; that the downstream appropriators are entitled to 93 cubic feet per second of water for 180 days; that the loss by evaporation and seepage before delivery to said downstream appropriators will necessitate a flow in excess of 50 cubic feet per second flowing past the diversion point of the plaintiff, in addition to the said 93 cubic feet per second required by said priorities; that there are approximately 116 cubic feet per second of water flowing by the Horseshoe ranch. Below this there are 20 water users, with an aggregate of 9,000 acres of land to which there are rights of irrigation prior to those of plaintiff, and if plaintiff is permitted to take the water claimed by it, these 20 appropriators will be deprived of their water, and. of the crops to be grown by the irrigation thereof, to their great and irreparable damage. [6] There is a presumption that the state engineer and the water commissioner have performed and are performing their duties in conformity with the statute. This, however, is disputable. Its effect is to throw the burden of proof on those who allege the contrary. Wadsworth v. Union Pac. Ry. Co., 18 Colo. 600, 33 P. 515, 23 L. R. A. 812, 36 Am. St. Rep. 309; McLean v. Farmers' High Line Canal & Reservoir Co., 44 Colo. 184, 98 P. 16, 18; 39 Cyc. 1437. [7, 8] Even with the aid of this presumption, defendants' general denials do not overcome plaintiff's positive and specific charges. Plaintiff's charges might be considered sufficient to support an order allowing a reasonable flow of water to the Horseshoe ranch to save the more important crops thereon, were the parties who would be affected by such an order before the court. The water taken from plaintiff was given to other users. It was for their benefit that the ditches and headgates on the Horseshoe ranch were closed. Obviously the headgates and ditches cannot be reopened, and thus permit large quantities of water to flow as formerly to the Horseshoe ranch, without cutting short the supply of others now using the water. The water officials are nominal parties only, but the plaintiff, from whom the water was taken, and those who are now consuming it, are the real parties in interest. Without the latter there can be no complete determination of the controversy. A restraining order as prayed for could not be granted without prejudice to such consumThis court cannot by its injunctive orders, though they are directed to state officials, effect a transfer of water from one consumer to another without giving both consumers a hearing; and this we think is true, even though in making the transfer the officials are directed to conform to an order of determination on file in the office of the county clerk pending a hearing thereon by the district court of Nevada. McLean v. Farmers' High Line Canal & Reservoir Co., 44 Colo. ers. nied. 184, 98 P. 16, 18; Hamp v. State, 19 Wyo. ny. On motion to dismiss bill. Motion de377, 118 P. 653, 662; Comstock v. Larimer & Weld Reservoir Co., 58 Colo. 186, 145 P. 700, 703, Ann. Cas. 1916A, 416; Squire v. Livezey, 36 Colo. 302, 85 P. 181. The amount or head of water needed to carry down the stream a quantity sufficient to satisfy the needs of those who have superior rights, is a question of fact as to which there is no allegation in the complaint, and no evidence sufficiently definite or specific to support a finding, even if all interested users were present. As to adverse user, and as to what is termed by counsel a revolutionary cancellation of a long-maintained situation, there is neither pleading nor evidence to the effect that plaintiff has used the waters of the stream for such a length of time and under such conditions as to impair or subordinate prior rights of water users below the Horseshoe ranch. P. L. Gaskins, of Jacksonville, Fla., for complainants. Shutts & Bowen, of Miami, Fla., for defendant. CALL, District Judge. The bill of complaint alleges a contract of sale of certain lands in Dade county, for an agreed consideration, part in cash and the balance secured by three promissory notes. The contract provided that the seller should install water and light lines, sidewalks, and paved streets. The bill negatives the compliance by the seller with this covenant, although often requested, and after the lapse of a reasonable time to make such improvements. The bill shows, also, that the land contracted to be sold is wild, unimproved, and such improvements were necessary to make it salable and proper for occu The application for injunctive relief pation. The prayer is for rescission and to be pending suit must be denied. FISHER et al. v. TATUM HOLDING CO. placed in statu quo. To this bill a motion to dismiss was filed by the defendant. The ground relied upon is that the bill is without equity, the complainants having a full and adequate remedy at (District Court, S. D. Florida. July 13, 1926.) law. If the facts pleaded in the bill show a No. 421. Cancellation of Instruments 10-Purchaser of land under executory contract held entitled to maintain suit for rescission, on failure of seller to perform conditions of sale; remedy at law being inadequate. Complainant purchased land from defendant under an executory contract requiring defendant to install water and light lines and construct sidewalks and paved streets, which were necessary to render the land salable or available for occupancy. After demand and lapse of a reasonable time, defendant failed to make any of said improvements. Held, that complainant's remedy at law was not adequate, and that he was entitled to maintain suit for rescission of the contract without completing the agreed pay ments. In Equity. Suit by C. L. Fisher and H. S. Allen against the Tatum Holding Compa case where full and adequate relief can be afforded on the law side of this court, the complainants cannot proceed in equity. In arriving at a conclusion on this question, it must be borne in mind that the contract sought to be rescinded here is executory. Would the action at law for damages afford the full and adequate relief which equity affords? I think not. The improvements contracted to be made by the seller were a part of the consideration moving to the buyers for making the contract to purchase, and to say that the purchasers should first comply with their contract and make the deferred payments, and then sue the seller at law for damages, is, it seems to me, unreasonable, and affords very inadequate relief to them. The motion to dismiss will therefore be denied. It will be so ordered. 14 F. (2d) 657 RIM CO. (Circuit Court of Appeals, Sixth Circuit. October 5, 1926.) No. 4551. INLAND MFG. CO. v. AMERICAN WOOD adapted for use on automobiles, airplanes, and motorboats. The claims in suit are printed in the margin.1 The District Court found all the claims in suit valid and infringed. An interlocutory decree was entered, enjoining defendants from further infringing plaintiff's patent, and referring the cause to a master to take, state and report an account of profits and damages. The defendant appeals. 1. Patents 328. Kenrick patent, No. 1,434,616, claims 7, 9, and 14, for wooden steering wheel for automobiles, etc., held valid and infringed. 2. Patents 112(3). Issuance of patent raises a presumption [1] The only question presented by this ap of invention. Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Benson W. Hough, Judge. Patent infringement suit by the American Wood Rim Company against the Inland Manufacturing Company. Decree for plaintiff, and defendant appeals. Affirmed. Melville Church, of Washington, D. C., for appellant. William H. Davis, of New York City (James A. Watson, of Washington, D. C., on the brief), for appellee. Before DENISON, DONAHUE, MOORMAN, Circuit Judges. and peal is whether the structure of the patent involves invention. If so, there is little or no dispute as to infringement. In the disposition of this question, it is unnecessary to review the evidence at length. In the early days of the automobile, steering wheels, including spider and rim, were made of tubular or cast metal, because of the evident need of sufficient strength to withstand sudden and heavy stresses upon them. Metal rims, while affording the necessary strength, were objectionable because they added to the weight of the wheel and thereby tended to increase the vibration, and because they were uncomfortable to the hand in cold weather and the finish would wear off and soil the. hand or glove. For these reasons, as early as 1904, wooden metal spider; but, as many drivers prefer to change from holding the rim of the wheel to holding the spokes, wooden spokes were equally as desirable as a wooden rim. rims were substituted and attached to the continuous 17. A steering wheel, comprising a self-sustaining rim of wood having a surface curved in section, a plurality of wooden spokes secured to said rim at their outer ends extending inwardly on radial lines and having much greater width than thickness, and having gradually decreasing thickness from the inner portion to the outer portion the said spokes having arc shaped inner ends laterally enlarged, the side surfaces of the enlarged portions being in radial planes and abutting those of adjacent spokes forming a continuous hub with a cylindrical opening, a metal sleeve in said opening and means securing said inner ends together on said sleeve. 9. A steering wheel, comprising a continuous selfsustaining rim of wood curved in section, a plurality of wooden spokes of much greater width than thickness secured to said rim at their outer ends extending inwardly on radial lines and having inner laterally enlarged arc shaped ends with abut DONAHUE, Circuit Judge. This appeal involves the validity of claims 7, 9, and 14 of the Kenrick patent, No. 1,434,616, assigned to the American Wood Rim Company, a corporation organized under the laws of the state of Michigan. The Inland Manufacturing Company is a Delaware corporation, a unit of General Motors Corporation, and the successor in business of the DaytonWright Company, also a Delaware corpora- ting side surfaces in radial planes forming a contion, which latter company was also made a party defendant to this suit; but, it appearing that it had discontinued the manufacture of the wheels claimed to infringe plaintiff's patent and transferred its business to the Inland Manufacturing Company, the action against the Dayton-Wright Company was dismissed. The Kenrick patent relates to steering wheels, and particularly to steering wheels 14 F. (2d)-42 tinuous hub portion with a central opening, the upper and lower faces of said spokes at their ends being in planes parallel to the plane of the rim and the intermediate portions being at an angle to that plane, and means for securing the inner ends together. 14. A steering wheel, comprising a wheel, a plu rality of wooden spokes the outer ends of the spokes being secured to the rim and the inner ends thereof being enlarged and provided with mortises in their adjacent portions and wooden keys inserted into the mortises to secure said inner ends together, the grain of the wood of the inserted keys lying circumferentially of said rim. Because of the generally accepted opinion that metal was the only material that would afford sufficient strength, experiments were made with aluminum wheels, which were much lighter, but equally objectionable in other respects. Attempts were then made to produce the equivalent of a wooden spoke by fastening thin strips of wood to the upper and lower sides of the metal spokes, and especially to the spokes that were likely to be grasped by the hand of the driver; but this was not satisfactory and the cost of such a wheel was thought to exceed its advantages. Lobdell, to whom reference is made in the Kenrick application, sought to substitute part wooden spokes for the all metal spokes by a metal hub having radiating sockets to receive the wooden spoke ends; but a patent was refused him, for the reason he had merely substituted short wooden spokes in the radial sockets of the metal hub in place of the spokes of the prior art, and that the advantages claimed for his wheel were inherent, and universally known to reside in the material employed. Kenrick does not use a metal hub, nor is it claimed by him that his invention resides in the substitution of wooden spokes for the metal spokes of the prior art. The problem he sought to solve was to produce a wheel, consisting of a wooden rim, spokes, and hub, of sufficient strength to resist all sudden and heavy stresses upon it, with the advantages of lightness, superior appearance, greater cleanliness, and greater comfort to the user as compared with the usual wheel having the ordinary metal spokes. The evidence would seem to be conclusive that an all-wooden steering wheel for automobiles, airplanes, and motorboats was new to the steering wheel art at the time Kenrick filed his application for this patent; that such a steering wheel has decided advantages over an all-metal wheel, or a wheel with wooden rim and metal spokes; that the defects and disadvantages of the steering wheels of the prior art were for many years recognized by the trade generally; and that the all-wooden steering wheel of the Kenrick patent is of sufficient strength to meet all requirements. The Cadillac Motor Car Company, also a branch of General Motors Corporation, recognized the need and requested the American Wood Rim Company to provide it with an all-wood steering wheel and give it the exclusive use for one year. The commercial acceptance of the Kenrick wheel, immediately after the year in which the Cadillac Company had the exclusive use, would indicate that Kenrick did not create the demand, but rather that he met an existing need. It is not claimed in support of the patent that the mere substitution of wood for metal constitutes invention, or that wooden rims or wooden spokes in combination with a metal hub, or a metal hub and radial sockets, are new with Kenrick, but rather that these old elements, in combination with a wholly new construction of an all-wooden hub, form a completed structure new to the art and requiring the exercise of inventive faculties, and definitely beyond the skill of a mechanic in the steering wheel art. In the construction of the hub of the Kenrick wheel, the inner ends of the spokes are enlarged and are segmental in form, the ends of the individual segments abutting along radial planes, the adjacent faces of the segmental enlargements are grooved or mortised and inserted into each pair of adjacent mortises is a key of wood, the grain of which extends circumferentially of the hub to give the joint the greatest resistive force against breaking. The hub has an axial bore to receive the member which secures it to the steering shaft, and has also a plurality of spaced recesses, one of which extends downwardly into each spoke at a point close to the bore and lying along its central axis, and it is the claim of the appellee that a wheel so constructed entirely of wood is lighter in weight, more attractive in appearance, than the wheels of the prior art; that it is of great strength, and the hub so formed gives rigidity to the structure not realized where this formation of hub is not used. [2] These claims of the inventor are fully sustained by the oral testimony and exhibits in this case. The utility of the steering wheel of the patent is not disputed. It is not an exact repetition, but clearly an advance over the prior art. It has been accepted as a satisfactory, if not a final response to the demand for a steering wheel that would eliminate the disadvantages of the wheel of the prior art, and so differs from the wheels of the prior art as to receive the approval of the patent office after its rejection of Lobdell, and is entitled to the presumption of invention which attaches to a patent. Diamond Rubber Co. v. Consolidated Tire Co., 220 U. S. 428, 434, 31 S. Ct. 444, 55 L. Ed. 527. The vehicle wheel art furnished Kenrick absolutely no suggestion. In that art a wooden hub was used, in which the wooden spokes were inserted and a metal band around the periphery of the wheel or felly 14 F. (2d) 659 held the spokes in place. Where a separate wooden hub was not used, there was such a number of spokes that it was necessary to reduce the inner ends, not enlarge them, and these ends are held in place by metal plates on opposite sides securely bolted together. In steering wheels, only four spokes are used, and the problem of enlarging the inner ends of these spokes, so as to constitute and form a hub of sufficient strength for the purposes for which a steering wheel is used, presented a wholly new feature of wheel making. It is true that, in some of the earlier patents relating to vehicle wheels, there is an enlarged shoulder near the inner end of the spoke; but this shoulder tapers inwardly, so as to permit all of the spokes to enter the metal hub, which metal hub, adapted to receive the inner end of the spokes, constitute the claimed inventions of these patents. It is claimed on the part of the appellant that the Cadillac Company "pushed the plaintiff into this all-wood steering wheel business," and to hold this patent valid would be to penalize the Cadillac Company, a branch of General Motors, for its enterprise and its faith in another manufacturer, and "laud the one who put a glue joint where a glue joint is supposed to go." If the production of an all-wooden steering wheel could be accomplished by putting "a glue joint where a glue joint is supposed to go," the demand for such a wheel would have been met long before Kenrick by those skilled in the wood-working art, and endeavoring to do the identical thing that Kenrick has done. [3] If the production of an all-wooden steering wheel did not involve invention, there would have been no purpose in the Cadillac Company requesting the exclusive right to the use of the Kenrick wheels for one year, and no theory upon which the appellee could have guaranteed such exclusive use. If other steering wheel manufacturers could make an all-wooden wheel and sell the same to other automobile makers, it could have made no difference to the Cadillac Company whether the appellee or other manufacturers sold its competitors. Under such circumstances, its exclusive right to use the Kenrick for a year would have been worthless. That it did request and accept the right to the exclusive use of the Kenrick wheel for a year strongly tends to prove that it believed the production of such a steering wheel involved invention. [4] It is no argument against invention that the inventor availed himself of all knowledge known to mechanics skilled in the art, nor is it surprising that, when a definite result has been accomplished, the simplicity of the methods by which it is accomplished would seem to be obvious. The line between the skilled mechanic and the ingenuity of the inventor cannot be accurately drawn in any given case, but where a demand has long existed, and men skilled in the art have sought to meet that demand without success, the argument that the methods employed by the inventor who has solved the problem are so obvious as to involve only mechanical skill, is not entitled to very serious consideration. Diamond Co. v. Consolidated Tire Co., supra; Consolidated BrakeShoe Co. et al. v. Detroit Steel & Spring Co. et al. (C. C.) 59 F. 902, 908; Star Brass Works v. General Electric (C. C. A. 6) 111 F. 398, 400, 49 C. C. A. 409; American Ball Bearing Co. v. Finch (C. C. A. 6) 239 F. 885, 889, 153 C. C. A. 13. Affirmed. |