SF.(2d) 995 LUNDIE ENGINEERING CO. v. RAILROAD caved lower face for bearing upon a tie SUPPLY CO. [Ed. Note.-For other definitions, see Words and Phrases, Aggregation.] Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Patent infringement suit by the Lundie Engineering Company against the Railroad Supply Company. Decree for defendant, and complainant appeals. Affirmed. Otto R. Barnett, of Chicago, Ill., for appellant. Taylor E. Brown, of Chicago, Ill., for appellee. Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge. Suit for the infringement of patent No. 986,698, issued to John W. Doster for a tie plate. The claims relied on are 1, 2, and 5, and are as follows: "1. A railway tie plate having a concaved lower face for bearing upon a tie and with a plurality of ribs spaced apart and depending from the concaved face for embedding in a tie. "2. A railway tie plate having a con and with a plurality of ribs spaced apart and depending from the concaved face near the edges, and a rib depending from the concaved face and at right angles to the spaced ribs, said ribs being adapted to be embedded in a tie." "5. A railway tie plate having a concaved lower face and a stop rib upon its upper face, and a plurality of ribs spaced apart and depending from the curved face and adapted to be embedded in the upper face of a tie." The court below held each of the claims invalid for lack of invention and that they were not infringed. In the view we take of the case, it is only necessary to consider the first question. [1, 2] Appellee insists that the claims show a combination of elements, each of which is old, and that they do not show patentable combination but a mere aggregation of old elements. The elements are all old and well known in the art, and the only question is, Does the bringing together of these old elements in the manner and for the purposes stated amount to a combination which involves invention, or does it show merely an aggregation of old elements performing their well-known functions? Tie plates having a concaved lower face for bearing upon a tie, tie plates with a plurality of ribs depending from the lower face for embedding in the tie, and tie plates with a stop rib upon the upper face, are all old. The patentee simply put these elements together into or rather onto one tie plate. Each ele ment in this so-called combination performs the same function in the same way as it did when used alone. There is no mutuality of action, no interaction, no co-operation, between them. Each acts just as it did when used alone. The result comes, not from the coaction of the elements, but from collecting the three elements together. This is mere aggregation, and does not involve invention. Decree affirmed. CANNON, Internal Revenue Collector, v. ELK SAME v. SIUSLAW TIMBER CO. Nos. 3601, 3602. Internal revenue 9-Corporations organized to bid in mortgaged timber lands held "not engaged in business." Corporations organized to bid in timber lands subject to mortgages securing bonds issued thereunder, and which held lands bid in awaiting favorable opportunity to dispose of them, paid taxes thereon, patrolled and protected lands without cutting or otherwise using timber, kept a few houses occupied at normal rent to prevent them going to ruin, but kept no office and paid officers no salaries, held "not engaged in business" within Revenue Act 1918, § 1000, subd. c. (Comp. St. Ann. Supp. 1919, 8 5980n). timber possibilities might be known, but not cutting any timber or renting or otherwise making use of the timber or land, save in one case, keeping a few houses on some of it occupied at nominal rent to prevent their going to ruin. The corporations kept no office of their own; their officers received no salary or other emolument. The operation of the timber properties as such was not in contemplation, and no income or profit therefrom was expected or intended, save that it was hoped to dispose of the properties as stated, and efforts were made to interest others in their purchase, failing in which the corporations might operate them if sufficient additional outside capital therefor could be secured. This was the situation ever since the corporations were formed, and for more than one year next before June 30 preceding the In Error to the District Court of the alleged accrual of the tax. United States for the Eastern Division of the Northern District of Illinois. Separate actions by the Elk Creek Lumber Company and by the Siuslaw Timber Company against John C. Cannon, Collector of Internal Revenue for the First Collection District of Illinois. Judgments for plaintiffs, and defendant brings error. Af firmed. T. O. Webb, Sp. Asst. U. S. Atty. Gen., for plaintiff in error. Melvin M. Hawley, of Chicago, Ill., for defendants in error. Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges. ALSCHULER, Circuit Judge. The District Court awarded judgments to defendants in error, respectively, for their recovery of taxes found wrongfully to have been collected from them as capital stock tax under section 1000 (a) of the Revenue Act of 1918 (Comp. St. Ann. Supp. 1919, § 5980n). The facts of the cases are essentially similar. Defendants in error were corporations organized for the purpose of bidding in under mortgage sale large tracts of timber lands subject to the mortgages which secured payments of bonds issued thereunder. The stockholders were the bondholders in proportion to their bond holdings. The lands were bid in, and the corporations continued to hold the lands, awaiting favorable opportunity for disposing of them, and distributing the proceeds, in the meantime paying the taxes, patrolling and protecting them from fire and trespassers, surveying the land and cruising the timber so that the boundaries and the Section 1000 (c) provides: "The taxes preceding year ending June 30. Each of the judgments is affirmed. BROWN v. PACIFIC MUT. LIFE INS. (Circuit Court of Appeals, Fifth Circuit. Insurance 527-Insured, killed by fall of Passenger, killed by fall of hydroaeroplane, was not killed in conveyance of "common carrier," within double indemnity provision of accident policy, where owner of plane carried only white people and flew only when and under such conditions as he pleased. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Common Carrier.] In Error to the District Court of the United States for the Eastern Division of the 8 F.(2d) 996 Northern District of Alabama; William I. Grubb, Judge. Action by J. W. Brown, as administrator of the estate of Hugh D. Brown, deceased, against the Pacific Mutual Life Insurance Company of California. Judgment for defendant, and plaintiff brings error. Affirmed. J. K. Dixon, of Talladega, Ala. (Knox, Dixon, Sims & Bingham, of Talladega, Ala., on the brief), for plaintiff in error. Geo. W. Yancey, of Birmingham, Ala. (London, Yancey & Brower, of Birmingham, Ala., on the brief), for defendant in error. Before WALKER, BRYAN, and FOSTER, Circuit Judges. FOSTER, Circuit Judge. This is a suit on a policy of accident insurance which provided for double indemnity if the bodily injury was sustained "while in or on a public conveyance (including the platform, steps, or running board thereof) provided by a common carrier for passenger service." The insured was killed in an aeroplane accident, while a passenger in said plane. Suit was brought for double indemnity, claimed by virtue of the above-quoted clause. The defendant admitted liability for the face value of the policy and tendered that amount, which was declined by plaintiff. At the close of the case the District Court directed a verdict for plaintiff for the amount tendered, denying the claim for double indemnity. The The following facts are not disputed: Lieutenant Whitted, formerly in the naval aviation service, owned a hydroaeroplane and operated it himself at Camp Walton, Fla., a summer resort, where he took passengers on pleasure trips in the air to let them enjoy the doubtful pleasure of flying. The plane held six persons, including the pilot. trips lasted about 10 minutes in the air, and the plane returned to the point from which it started, for which he charged his passenthan three passengers and carried only white gers $5 each. He would not go up with less people. He operated on such days, at such hours, and under such conditions as pleased him, and did not pretend to maintain regular schedules. He did not advertise his business, unless keeping his plane anchored at the resort and having his helper in the vicinity of the usual landing place to give information could be so called. On August 19, 1923, Hugh D. Brown, the insured, who was visiting Camp Walton with his wife, went up with Whitted and three others. When up in the air, something went wrong with the machine; it fell, and all were killed. From the above-quoted facts it is clear that Whitted was not a common carrier. He assumed no duty to the public to carry them, and if he refused to do so without any reason at all no action would lie against him. See Hutchinson on Carriers (3d Ed.) §§ 47, 48. Affirmed. f(ed) 837 FEDERAL REPORTER 507. 1. Action 6-Questions not involving rights of persons or property controverted in case presented to court will not be decided by court. Federal equity court is without power to construe leases, to establish rule controlling predicted future conduct, where rights of persons or property are not controverted in case before court. 2. Courts 262(1), 335(1)-Jurisdiction of federal courts, as affected by state law, stated. Remedies afforded and procedure in federal equity courts are not determined by local laws or decisions, but by general usages of equity having uniform operation, and in general is jurisdiction of High Court of Chancery in England at time of adoption of Constitution and original Judiciary Act, unless subsequently changed by Congress, but they may administer enlarged equitable rights given by state statute, unless to do so would contravene distinction between law and equity. 3. Quieting title -Kinds and character of "bills of peace" stated. "Bills of peace" are those to establish right controverted by numerous parties having distinct interests originating in common source, wherein equity interferes to avoid multiplicity of suits, and those wherein plaintiff's right to realty or his possession has been unsuccessfully assailed in different actions in ejectment, and wherein plaintiff is liable to further similar actions, in which equity interferes to quiet possession in plaintiff. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Bill of Peace.] 4. Quieting title -Suit to construe leases held not sustainable as bill of peace. Suit by lessee for construction of longterm leases from different lessors, to determine its right to remove building from premises incidental to erection of new improvement of greater value, held not sustainable as bill of peace. "Bill quia timet," or to remove cloud on title, seeks to prevent future controversy by removing existing causes of controversy as to title, and generally plaintiff must be in possession, except where defendants are numerous and have established title at law, or where it is founded on undisputed evidence, or longcontinued possession. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Bill Quia Timet.] 6. Quieting title 2-Bill to remove cloud on leasehold interest maintainable. In view of Judicial Code, § 57 (Comp. St. § 1039), under general usages of equity, bill to remove cloud on title is maintainable in case involving leasehold interest, if suit is otherwise well founded. 7. Landlord and tenant 70-Lease for years is "chattel real." Lease for years is "chattel real," and conveys interest in land, and, while having some of attributes of personalty, it is, in many respects, treated as real estate. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Chattels Real.] 8. Quieting title 3-Bill to quiet title not maintainable in federal court to dispel mere verbal assertions of interest, or where face of record shows no title. Under usages or equity controlling federal courts, and in absence of enlargement of equitable rights by state statutes, bill to quiet title will not lie to dispel mere verbal assertions of interest, nor if same record relied on to establish title shows no title. 9. Equity 3-Equitable ground is necessary to maintenance of equity action. Equitable action must be maintained on some equitable ground, however broad and elastic the relief may be. 10. Quieting title 4-Suit to establish lessee's right to remove building and erect new one held not maintainable as bill to remove cloud; lessee's remedy being action at law. Suit to establish lessee's right under longterm leases from different lessors to remove existing building, incidental to erection of new one of greater value not impairing lessor's security, on adequate security during construction, was not maintainable as bill to remove cloud under general usages of equity, notwithstanding lessor's verbal assertions that such removal would constitute waste, constituting ground of forfeiture, since, if construction of lease was doubtful, lessee's remedy was by action at law. 11. Courts ~262(3)—Federal equity courts have power to remove what state laws declare to be clouds on title. Federal equity courts have power to remove what state laws declare to be clouds on title. 12. Courts 262 (2)—Requisites to federal court's jurisdiction of suit to remove cloud founded on state statutes, stated. Suit to remove cloud founded on remedial state statutes, to be within federal court's jurisdiction, must be within general class over which such courts have jurisdiction, and does not lie where there is plain, adequate, and complete remedy at law, and there can be no commingling of legal and equitable remedies, or substitution of latter, whereby constitutional right of trial by jury in actions at law is de feated. 8 F.(2d) 998 what is apparent on face of instrument under which title derived. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Cloud on Title.] 14. Vendor and purchaser 3 (2) -Long-term lease is not "sale." Long-term lease, with payment of annual rent, is not "sale," which is a grant of absolute ownership. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Sale.] 15. Quieting title 19-Illinois statutes authorizing suits to quiet title and remove clouds not applicable to suits involving construction of leases. Chancery Act Ill. § 50, as amended by Laws 1911, p. 253, authorizing suits to quiet title and remove clouds from realty, is not applicable to controversy between landlord and tenant relating to construction of leases. 16. Quieting title 46-Plaintiff's remedy not limited by phraseology in pleading, or by specific form in which claim for relief is presented. Remedy of plaintiff, seeking to remove cloud on title, should not be limited by phraseology in pleading, nor by specific form in which claim for relief is presented. 17. Equity 38-Suit to establish lessee's rights under lease held not maintainable as one to enjoin threatened breach of contract. Suit to establish lessee's rights to remove building on leased premises and to erect new one thereon, merely involving construction of lease, which was insufficient as bill to remove cloud, could not be sustained as one to enjoin threatened breach of contract. 18. Injunction 58-Suit to enjoin threatened breach of negative covenant is governed by rules applicable to suit for specific performance of affirmative covenant. Suit to enjoin threatened breach of negative covenant in contract is governed generally by same principles as suit for specific performance of affirmative covenant, and, if right is doubtful, injunction is improper. 19. Equity 38-Bill to establish lessee's rights under lease held not maintainable as one to enjoin forfeiture. Bill to establish lessee's rights to remove building on leased premises and to erect new one thereon, merely involving construction of lease, and which which was insufficient as bill to remove cloud, could not be sustained as one to enjoin forfeiture, where no forfeiture had been declared, nor cause of forfeiture stat ed in bill, nor notice of breach of covenant given. 20. Equity43-Some wrong must be shown for which plaintiff is entitled to redress before rule as to inadequacy of legal remedy applies. Rule that absence of precedents or novelty in incident is not obstacle to jurisdiction of equity court applies to remedy only, and, before rule as to inadequacy of remedy at law is applicable, some wrong must be shown, for which plaintiff is entitled to redress. In Equity. Suit by the Chicago Auditorium Association against Ambrose Cramer, trustee, and others. Bill dismissed without prejudice. Fisher, Boyden, Kales & Bell, of Chicago, Ill., for plaintiff. Sonnenscheim, Berkson, Lautmann & Levinson, of Chicago, Ill., for intervening petitioners Lister. Butz, von Ammon & Marx, of Chicago, Ill., for intervener Bullock. Hamlin, Topliff & Cooper, Follansbee, Shorey & Schupp, Elting & Judson, George W. Gordon, King, Brower & Hurlbut, McCulloch & McCulloch, and Hay & Brown, all of Chicago, Ill., and Perkins, Malone & Washburn, of New York City, N. Y., for de fendants. Louis M. Greeley, Roswell B. Mason, and Henry Russell Platt, all of Chicago, Ill., guardians ad litem. WILKERSON, District Judge. Plaintiff is the lessee under leases covering the ground upon which the Chicago Auditorium Building is erected. The leases cover five separate parcels of land and were executed in 1887. In two of the leases Wirt D. Walker was the lessor, and Mark Skinner Willing, as trustee, and other defendants, as set forth in the pleadings, have succeeded to his interest. In another of the leases Walter G. Peck, Clarence I. Peck, and Ferd W. Peck were the lessors, and William A. Slater, as trustee, and other defendants, as set forth in the pleadings, have succeeded to this interest. In two of the leases Studebaker Bros. Manufacturing Company was the lessor, and Emily C. Chapin and other defendants, as set forth in the bill, succeeded to this interest. In essential respects the provisions of the leases are the same. They are for the period of 99 years. The lessee agrees to forthwith begin and to build on the premises a substantial and solid fireproof building of brick, stone, iron, steel, and tile, and such other materials as are necessary and usual in fireproof buildings in the city of Chicago, the same to be in all respects in accordance with the building ordinances of the city of Chicago, and to carry on and prosecute the erection of the building with all reasonable dispatch, and to have the same completed before August 1, 1889; the building in the character of the materials to be used in its construction, to be as follows: "All columns shall be of iron, stone, or brick, and all iron and steel columns and girders shall be fireproofed with a covering of porous terra cotta or hollow tile, or like |