McCormick v. Talcott et al.

curious on such subjects, are in a great degree irrelevant to and beside any legitimate inquiry which an adjustment of the claims of the parties either imposes or warrants. In the decree of the court below, as well as in the arguments in this court, it has been conceded, that the patent of the appellant is strictly legal. This concession necessarily excludes, and in legal acceptation concludes, all inquiry as to the right of the appellant to the full benefit of his invention, either as an original or a combination, and renders unnecessary, and irregular, and improper, any and every comparison between that invention and previous claims to discovery and improvement, having in view the same results, and the same or merely equivalent modes of producing them. This concession, therefore, narrows down and confines the proper investigation before this court, as it should have restricted that before the Circuit Court, to the single question, whether the machine complained of as an infringement, either in theory, in construction, or in operation, was the same with the improvement invented by the appellant, for the benefit or the reward for which the law had given its guarantee? This was the proper inquiry before the court below, is the only regular inquiry here. All others connected with previous inventions were and must be irregular, and are excluded and forbidden by the concession that the patent of the appellant is legal and valid. To guide them in this, the only legitimate inquiry, this court has had before them a species of evidence of all others best calculated to conduct them to the truth-evidence superior to, and unaffected by, the interests or prejudices of partisans, or by the opinions (the reveries, they may often be called) of a class of men styled experts; men as often skilful and effective in producing obscurity and error, as in the elucidation of truth. No witnesses can testify so clearly and so impartially as do the subjects (though mute) concerning which a controversy about identity or dissimilarity is pending. These witnesses have been produced, and their testimony eagerly and keenly scrutinized; and that testimony establishes, in my judgment, with a force and certainty which no ingenuity can either withstand or evade, that the machine put in operation by the appellees is a palpable infringement of the rights of the appellant; that in theory or principle, in structure, in the modes of operation, and in the results proposed, it is essentially, and, with some insignificant and merely apparent diver sity, formally identical, at least in one important particular, with the invention secured by the Government to the appellant, and admitted by the appellees, and by the court, to have been rightfully and legally guarantied to him.

That portion of the machines put in operation by each of

McCormick v. Talcott et al.

the parties to this controversy, and which constitutes the most material subject of contention in this cause, consists of what in the description and specification of the respective patents is called a divider. The function and the value of this divider are experienced in separating the stalks of wheat designed to be immediately severed by the cutters, from those which do not come within their immediate and regular operation, but which it is desired should be left to the future or succeeding action of the machine. It frequently happens, in fields of luxuriant growth, that from high winds, heavy rains, and even from its own weight, wheat is pressed down, and becomes in rustic phrase lodged. In this condition, the stalks and heads. of the wheat, on both sides of a line described by the track of a machine, will become entangled, and inclined in various and opposite directions, accordingly as the momentum which displaces the natural position of the growing crops has been applied. In such a condition of the wheat, any process by which a portion of the crop should be torn apart from portions with which it was intertwined, would prove highly detrimental, inasmuch as it would necessarily increase the irregularity in the position of the wheat not cut, and standing outside of the regular track of the machine; and, by violently and rapidly rending apart the tangled straw, would shatter and waste the grain in each division, creating thereby a serious diminution in the yield or product. In order to prevent these mischiefs by disentangling the wheat, by separating that designed to be immediately severed from that reserved for the succeeding action of the machine, and by raising up the former, and bringing it within the scope and operation of the reel and the cutters, was devised an addition or appendage to the reaper, called the divider. The importance of this appendage, both to the success of the reaper and on account of its real utility in practice, cannot be with reason called in question. Its essential importance is sufficiently evinced by the zeal and industry displayed, and the extraordina ry expense which must have been incurred in this controversy. The divider of McCormick may be thus substantially described: A pointed instrument or structure, called by the patentee a bow, formed of strong hard wood, confined in front, and projecting so far in advance of the cutters as to enter the wheat in time to effect its preparation for the approach of the cutters. This bow is extended in a curvilinear form on the outer side of the machine, next the grain to be separated from the cutters, and is gradually elevated from the point in front to a degree increasing towards the rear of the machine, sufficient to disentangle the straw, and place it in a position proper for the sweep or action of the returning machine. On the interior side of

McCormick v. Talcott et al.

the machine, or that on which the grain is to be severed, the divider of McCormick is constructed of a bar of iron, confined at the same point with the wooden bow above mentioned as operating externally; and this iron bar is capable of being so adjusted as to disentangle and raise the wheat separated from that standing on the exterior of the machine; and by a lateral and angular direction given this adjustable bar, as well as by its vertical extension, it embraces and secures the wheat on the interior side of the machine, and presses it. to the action of the reel and the cutters.

Such as has been just described, I hold to be McCormick's divider, and such, too, its operation and effects. Let us now compare them with the structure and operation of the structure complained of as an infringement, in order to ascertain how far the rival claims of the parties are identical or diverse. And this comparison will be most fairly and satisfactorily accomplished, and the results most clearly established, by a recurrence to that silent but irresistible testimony already referred to, the testimony of the machines themselves.

On Manny's machine, the divider on the exterior side, or the side of the standing grain, is formed of a piece of timber which, according as fancy shall dictate, may be denominated a bow, or by any other appellation which may be preferred. This piece of timber, like the divider of McCormick's machine, is confined in front, and penetrates the standing grain in advance of the cutters. Like McCormick's divider, it rises obliquely from the stationary point in front, towards the rear of the machine, to a degree intended to be sufficient to separate and support the straw, and in the same manner diverges in an angle supposed to be great enough to secure that separation, and to prevent the breaking down of any portion of the straw by being pressed to the earth, or by being torn away by the machine in its progress. On the interior side or section of Manny's divider, there is no adjustable iron bar or rod, as a part of the divider; but for this is substituted a piece of timber or a board, connected and confined in the front of the machine with the wooden fixture extended on the outside next the standing grain; and from that point of connection this substituted board is protracted in a diverging angle, and to a length corresponding exactly with those of McCormick's adjustable iron bar, and, like the latter, it is gradually curved to a vertical elevation intended to be great enough to separate and raise up the wheat designed to be inmediately severed by the cutters from that reserved for farther action of the machine. The only differences between this fixture and the adjustable bar of McCormick (and they are merely pretended and de

McCormick v. Talcott et al.

ceptive) are these: that the former, instead of being of iron, is made of wood; that instead of being movable or adjustable, it is stationary; that it is broader on its lateral surface than is that of the iron portion of McCormick's divider, and on that lateral surface is somewhat curved. But these differences, correctly apprehended, are mere disguises, and were indispensable to shelter the possession of property evidently pirated from the rightful owner. Had the appellees openly taken McCormick's iron instrument, adjusted it so that it could be graduated in practice to the quality or height of the grain in which the machine was to operate, and placed it at an angle suited to the conducting of the grain within the action of the reel and cutters, there would in so bold a piracy have been left no ground, no pretext even, for contest or cavil. Hence the effort at distinctions or differences attempted in the case. To my mind, it seems impossible not to perceive that they are entirely unfounded, and cannot for one instant conceal these truths, viz: that the instrument or structure called a divider, introduced and practiced by the appellees, is in theory or principle, in manner of its operation, in its effects or results, and it may almost be said in its minute constituent portions and forma tion, identical with the instrument invented by and patented to the appellant, and therefore an infringement of the rights guarantied to him by the Government.

Entertaining this opinion, I must dissent from the decision of the court in this cause, and declare it as my opinion that the decree of the Circuit Court should be reversed, and this cause remanded with instructions to reinstate the injunction formerly awarded by the Circuit Court, and to direct an account between the parties. The only legitimate inquiry for the court is this: whether the improvement of McCormick called a divider, and the instrument claimed and put in operation by Manny, are essentially the same, or are essentially or substantially different. All that has been said (and a great deal has been said) about the comparative superiority or inferiority of inventions or improvements previous to those patented to McCormick, is wholly irrelevant, and out of this cause; and is calculated only to confound and to divert the attention from the only proper subject of investigation here, which is the rightfulness of the claims advanced by the appellant and appellees in this cause, relatively to themselves, and to no others.

United States v. Fossat.

THE UNITED STATES, APPELLANTS, v. Charles FOSSAT.

Where a petitioner files a claim to land in California before the board of commissioners created by Congress, the intervention of rival claimants is a practice not to be encouraged.

Where there is no natural boundary or descriptive call for the termination of lines of a tract of land, and the quantity of land called for in the grant is "one league of the larger size, a little more or less," the survey must only include a league. The words "a little more or less" must be rejected.

The grant is for one league of land, to be taken within the southern, western, and eastern boundaries designated therein, and to be located at the election of the grantee or his assigns, under the restrictions established for the location and survey of private land claims in California by the Executive department of this Government.

[MR. CHIEF JUSTICE TANEY, BEING INDISPOSED, DID NOT SIT IN THIS CASE.]

THIS was an appeal from the District Court of the Unived States for the northern district of California.

Fossat claimed an interest of three-fourths in the tract of land granted to Justo Larios by Governor Alvarado, on the 1st of August, 1842. The mesne conveyances need not be stated, as the only dispute in this court related to the location of the land.

In June, 1842, Larios presented a petition to the Governor, stating that he had previously presented one in 1836, and another in 1840, both of which were lost. He stated that he had purchased a house upon the premises, and resided there since 1836. Whereupon, the following grant was issued:

Juan B. Alvarado, Constitutional Governor of the Californias: Whereas the citizen Justo Larios has asked, for his own benefit and that of his family, the land known by the name of the Capitancillos, bounded by the sierra, by the Arroyo Seco, on the side of the establishment of Santa Clara, and by the rancho of citizen José R. Berreyesa, which has for boundary a line running from the junction of the Arroyo Seco and Arroyo de los Alamitos, southward to the sierra, passing by the eastern base of the small hill situated in the centre of the cañada, the necessary steps having been taken and inquiries made, according to the laws and regulations on this subject, by virtue of the powers conferred upon me, in the name of the Mexican nation I have granted him the said land, declaring it his property by these presents, subject to the approval of the Departmental Assembly and to the following conditions:

1st. He may enclose it without injury to the passes, roads, and servitudes; he may enjoy it freely and exclusively, using