[272] LEWIS M. HAUPT, Appt.,



(See S. C. Reporter's ed. 272-279.)

United States implied contract -use of patented invention.

1. Appropriations by Congress for the construction or completion of a project for creating a navigable channel in accordance with the designs and specifications of a named corporation which had abandoned its own effort to obtain the desired channel clearly implies that Congress intended to give an experimental patented construction embodied in such designs and specifications a fair trial, and justifies the inference of a disposition, but not a contract, to pay for the use of the patented form of construction if it should prove to be valuable. [For other cases, see United States, VI. c;

Claims, 122-127, in Digest Sup. Ct. 1908.] United States implied contract -use

States of the identical compensation specified; or, if none is specified, for reasonable compensation.

United States v. Great Falls Mfg. Co. 112 U. S. 645, 656, 28 L. ed. 846, 850, 5 Sup. Ct. Rep. 306; United States v. Cress, 243 U. S. 316, 329, 61 L. ed. 746, 753, 37 Sup. Ct. Rep. 380; Davis v. Gray, 16 Wall. 203, 21 L. ed. 447; Glavey v. United States, 182 U. S. 595, 45 L. ed. 1247, 21 Sup. Ct. Rep. 891.

Whether the terms of a statute are explicit and clear or general and ambiguous, the court, if possible, must ascertain and give effect to the intention of the legislators, if necessary supplying words, or substituting words for others inadvertently used.

Stephens v. Cherokee Nation, 174 U. S. 445, 43 L. ed. 1041, 19 Sup. Ct. Rep. 722; Wisconsin C. R. Co. v. Forsythe, 159 U. S. 46, 56, 57, 40 L. ed. 71, 74, 75, 15 Sup. Ct. Rep. 1020; Chesapeake & P. Teleph. Co. v. Manning, 186 U. S. 238, 245, 248, 46 L. ed. 1144, 1147, 1148, 22 Sup. Ct. Rep. 881; Chicago, St. P. M. & O. R. Co. v. United States, 217 U. S. 180, 187, 188, 54 L. ed. 721, 724, 30 Sup. Ct. Rep. 470; Lau Ow Bew v. United States, 144 U. S. 47, 36 L. ed. 340, 12 Sup. Ct. Rep. 517; Brackett v. Chamberlain, 115 Me. 335, 98 Atl. 933; State v. Burnett, 173 N. C. 750, 91 S. [For other cases, see United States, VICE. 597; State ex rel. St. Louis v. MisClaims, 122-127, in Digest Sup. Ct. 1908.]

of patented invention. 2. The United States cannot be held liable as upon a quantum meruit to the owner of a patent for the use which he claims the government made of his invention in creating a navigable channel, where not only did the construction as ultimately completed, which produced the desired channel, not embody any of the devices of the patent, but there is nothing from which a promise by the government to pay for the use of such devices can reasonably be implied.

[No. 85.]

Argued November 10, 1920.


cember 6, 1920.

Decided De

PPEAL from the Court of Claims to review a judgment which dismissed the petition in a suit by the owner of a patent to recover from the United States for the use by the government of his invention. Affirmed.

See same case below, 53 Ct. Cl. 591. The facts are stated in the opinion. Mr. Benjamin Carter argued the cause, and, with Mr. George Ramsey, filed a brief for appellant:

An act of Congress for taking or using private property, or for employing the services of an individual, when enforced or complied with, becomes a contract for the payment by the United

Note. As to implication from use of patented article, of promise to pay royalty-see note to May v. Western Lime Co. 44 L.R.A. (N.S.) 333.

souri P. R. Co. 262 Mo. 730, 174 S. W. 73; Lewis's Sutherland, Stat. Constr. $$ 363, 374, 381, 382.

If a statute is not clear on its face, the courts, in interpreting it, will islative proceedings for expressions or search committee reports or other leg.. indications of the intentions of the legislative body.

237 U. S. 648, 59 L. ed. 1160, 35 Sup. St. Louis, I.. M. & S. R. Co. v. Craft, Ct. Rep. 704, 9 N. C. C. A. 754; Tap Line Cases (United States v. Louisiana & P. R. Co.) 234 U. S. 1, 27, 58 L. ed. 1185, 1195, 34 Sup. Ct. Rep. 741; Buttfield v. Stranahan, 192 U. S. 470, 495, 496, 48 L. ed. 525, 535, 24 Sup. Ct. Rep. 349.

When the United States adopts and puts to use a patented appliance, design, or process, and does not deny that it is using the same, or that the patentee is the true owner thereof, and does not disavow a purpose to pay him for such use, it is bound to pay him reasonable compensation.

As to payment for private property United States v. Société Anonyme taken for public use-see note to des Anciens Etablissements Cail, 224 Withers v. Buckley, 15 L. ed. U. S. 816. U. S. 309, 320, 56 L. ed. 778, 784, 32

Sup. Ct. Rep. 479; United States v. Berdan Firearms Mfg. Co. 156 U. S. 552, 567, 39 L. ed. 530, 535, 15 Sup. Ct. Rep. 420; United States v. Harvey Steel Co. 196 U. S. 310, 317, 318, 49 L. ed. 492-494, 25 Sup. Ct. Rep. 240; United States v. Palmer, 128 U. S. 262, 32 L. ed. 442, 9 Sup. Ct. Rep. 104; Pasqueau v. United States, 26 Ct. Cl. 539; McKeever v. United States, 14 Ct. Cl. 396. When, in circumstances that render the user of a patent liable to the patentee for compensation, the patented article is used, in conjunction with other articles, in a single device or plant, and it is apparent that such combined use has been of value to the user, but it is inherently impossible, as between the patented article and the other so associated with it, to distinguish the results accomplished by each, the patentee's compensation must be on the basis of the entire results.

Westinghouse Electric & Mfg. Co. v. Wagner Electric & Mfg. Co. 225 U. S. 604, 56 L. ed. 1222, 41 L.R.A. (N.S.) 653, 32 Sup. Ct. Rep. 691; Callaghan v. Myers, 128 U. S. 617, 666, 32 L. ed. 547, 562, 9 Sup. Ct. Rep. 177; Providence Rubber Co. v. Goodyear, 9 Wall. 788, 802, 19 L. ed. 566, 570; Walker, Patents, 5th ed. § 719, p. 816.

Special Assistant to the Attorney General Morris argued the cause, and, with Assistant Attorney General Davis and Special Assistant to the Attorney General Curtis, filed a brief for appel


In claimant's representations to the committees of Congress which were considering the improvement of Aransas pass, and the subsequent expressions of Congress in the statutes authorizing the improvements at Aransas pass, the express contract must be found, if at all, and it is impossible to find a contract in either of these; and, further, it is impossible to find the prerequisites of an implied contract, namely:

(1) That the United States recognized the title to the patent in the claimant; and

(2) That the invention was used under such circumstances as to indicate that the United States intended to pay for such use.

United States v. Société Anonyme des Anciens Etablissements Cail, 224 U. S. 320, 56 L. ed. 784, 32 Sup. Ct. Rep. 479; Berdan Firearms Mfg. Co. v. United States, 156 U. S. 552, 39 L. ed. 531, 15 Sup. Ct. Rep. 420.

Mr. Justice Clarke delivered the opinion of the court:

Aransas pass is an inlet, naturally too shallow for ocean navigation, connecting the waters of the Gulf of Mexico and those of Aransas bay and the Bay of Corpus Christi, on the coast of Texas. The problem of obtaining a navigable channel through this pass occupied the attention of the government and of private enterprise for many [273] years prior to 1912, when a channel of the desired depth of 20 feet was obtained.

This is a suit instituted by the appellant, Haupt, a distinguished engineer and the patentee of improvements in dikes and breakwaters, to recover a large sum of money for the use which he claims the government made of his invention in the construction of jetties, which, with dredg ing, resulted in the creating of the Aransas pass channel in 1912. The court of claims dismissed the petition, holding that no contract, express or implied, with the United States, was shown for the use of appellant's patented invention and that it was therefore without jurisdiction.

A résumé of what was done in the effort to procure the channel, which is necessary to a decision of the case, will develop the relations of the appellant to the enterprise and to the government, on which he bases his claim.

Between 1880 and 1889 the United

States government constructed what is designated in the record as the "Mansfield jetty," 5,500 feet in length, designed to deepen the channel through the pass,but it had no appreciable effect on the depth of water, and the work was suspended in 1889.

In 1890 the state of Texas chartered the Aransas Pass Harbor Company, a private corporation, organized for the purpose of improving the channel at Aransas pass, and in the same year Congress authorized the company to construct such jetties and breakwaters as might be necessary to create and permanently maintain a navigable channel "across the outer bar, which obstructs the entrance to Aransas pass harbor." [May 12, 1890, 26 Stat. at L. 105, chap. 201.] This company built the jetty designated in the record as the "Nelson jetty," about 1,800 feet in length, which also failed to deepen the channel and was abandoned in


In 1894 another act of Congress [January 22, 1894, 28 Stat. at L. 26, chap. 12] granted an extension of time to the same company to further pursue its objects, and at this point in the history the appellant appeared [274] with United

States patent No. 380,569 for certain improvements in dikes and breakwaters for improving the channels of rivers and harbors.

In the view we take of the case it will be a sufficient statement of the principle involved in, and of the claims of, appellant's patent, to say that the inventor aimed to accomplish results with a single jetty, of a form specially adapted to each locality, which had theretofore been accomplished only with two or more jetties. The claims are variously worded, as usual, but the substance of the alleged discovery is, that the study of the conformation of the bottom and shores of a given locality and of the prevailing currents, tidal and other, will enable one skilled in the art to so apply the principles disclosed in the patent as to give such form and location to a single breakwater or jetty that it will "cut the advancing waves" and "resist and decompose the flood resultant" in such manner that, without the aid of a second jetty or of dredging, it will scour out and maintain a channel of the required depth in a designated location.

mit plans for the deepening of the pass to
at least 20 feet. Six months later a board
created by the War Department reported
in favor of two jetties, to be supple-
mented by dredging.
It was recom-
mended that the northerly jetty should
be located substantially upon the line
of the one partially constructed by the
Aransas Pass Harbor Company, and the
other some distance southerly from it.

While the subject was thus before Congress, appellant brought his plan for dealing with the problem to the attention of the committee, and proposed to enter into a contract to construct and maintain the desired channel for a much less sum of money than the estimated cost of the work recommended by the War Department board. His proposition was given serious attention, and, although it was rejected, he was assured by members of the congressional committee that they desired to give his plan a trial, as well they might, for, if it had proved successful, it would have resulted in a great saving to the government in dealing with many like situations and problems.

Before any further work was done, the Aransas Pass Harbor Company conveyed to the United States the jetty or breakwater, which we have seen was constructed as designed by appellant, and Congress, in 1899, appropriated $60,000 for dredging and improving the pass, but with the proviso that the Secretary of War was authorized "to [276] contract for the removal of that portion of the old government jetty (the Mansfield jetty) in said harbor from the end nearest the curved jetty" constructed by the Aransas Pass Harbor Company, but in such manner as not to interfere with that jetty. This is a plain indication of interest on the part of Congress in appellant's theory or method of dealing with the problem, for he was claiming that the old jetty constituted an obstruction to the action of the water, and prevented the jetty which the Harbor Company had built under his direction from scouring out the desired channel.

The appellant granted a license to the Aransas Pass Harbor Company to use his patented device or design, on condition that the work should be done under his supervision, and he thereupon prepared the necessary plans and drawings for the construction which he thought would effectuate the desired result. The cost of the jetty, as thus designed by the appellant, was too great for the resources of the company, and, upon request, he eliminated a portion of it, which reduced the estimated cost by one half. The jetty, thus modified, consisted of a reverse curve or letter S, and a contract for the construction of it was let in July, 1895. Work was prosecuted vigorously until the following January, by which time it was ascertained that a portion of the first, the "Mansfield jetty," which had been reported officially as having disappeared, was still in place and in such a position, it was claimed, as to [275] prevent free erosion by the currents as they had been and would be modified by the new jetty under construction. That appropriation was expended, and Thereupon a contract was let for three years later, in 1902, Congress apthe removal of a part of the "Mans-propriated $250,000 for continuing the field jetty," but in May, 1897, before the new jetty was completed or the old one removed, all work was suspended. This suspension in the month of May, 1897, marks the end of the effort to obtain the desired channel through private enterprise, and Congress, in May of the following year, by resolution called upon the Secretary of War to prepare and sub

improvement of the pass, but again with the proviso "that the work shall be confined to the completion of the north jetty, in accordance with the designs and specifications of the Aransas Pass Harbor Company, and in the continuance of the work heretofore carried out on said jetty by said company."

Here again is plainly evidenced the


purpose of Congress to give appellant's | described, which clearly shows the cor-
theory a full and fair trial, for, it should rectness of the court's conclusion.

be noted, as yet it had never been reduced to actual practice.

Plans and specifications for the contract under this second appropriation were drawn by the government engineer in charge, and were by him submitted to the Aransas Pass Harbor Company, and the appellant suggested amendments, which were adopted. Among other things done under this contract was the removal of a considerable part of the Mansfield jetty, which the appellant had claimed so affected the action of the currents as to prevent the obtaining of the desired results from his construction.

Three years later, in 1905, Congress appropriated a further sum of $100,000, and in 1906 a like amount, for the improvement of the pass, and in each case the provision was incorporated that the money was to be applied to [277] construction "in accordance with the design and specifications of the Aransas Pass Harbor Company, and in continuation of the work heretofore done." The findings of the court of claims are: that, in compliance with the provisions of these various acts, the work of improvement was continued and completed in 1906, in accordance with the plans and specifications, as modified by appellant; that from 1896 to 1906 the depth and width of the channel were variable and shifting, with a ruling depth of only 6 feet of water in 1908; and that the evidence does not show to the satisfaction of the court that the so-called Haupt jetty, which was constructed under appellant's direction, "did produce, or would have produced, a navigable channel of the necessary or proper depth for navigation purposes.'

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In March, 1906, as we have seen, the work of improvement according to the plans as modified by the appellant was completed without securing the required channel. In the following December a board appointed by the War Department to further consider the Aransas pass project recommended that the spacing which Haupt had left [278] between the end of his jetty and St. Joseph's island, for its influence on the currents, should be closed, and that a parallel jetty should be built to the south of the Haupt jetty, thus making the project one of two jetties, instead of the single jetty of appellant's plan.

In 1907 Congress appropriated $200,000, and authorized contracts for the additional amount of $290,000, for improving the pass "in accordance with the plans submitted in its report of December 22, 1906, by the board of engineers created by authority of the Act of June 13, 1902." It will be seen that all reference to appellant's method of solving the problem disappeared from this act, which adopted the new plan of solution.

Contracts were made under this appropriation of 1907, and a second jetty, generally parallel to the Haupt jetty, was commenced in March, 1908, and completed in 1911. The court of claims finds: that, beginning with 1912, coastwise and seagoing vessels have been going through the pass, and that in that year the port of "Aransas Pass" was given the status of a commercial port on a par with Galveston by the Railway Commission of Texas; that "dredging was necessarily done in the years 1912 and 1915, inclusive, to obtain a proper navigable depth of channel in the pass;" and that this construction, as ultimately completed, "did not embody any of the devices of the plaintiff's (appellant's) letters patent No. 380,569,"

It is upon the terms in which the three
appropriations were made in 1902, 1905,
and 1906, each for the construction or
completion of the project "in accordance
with the design and specifications of the It is, of course, essential to recovery by
Aransas Pass Harbor Company," that the appellant on a quantum meruit, that he
appellant relies, and from them, it is should prove a contract, express or im-
argued, that a contract to pay him for plied, on the part of the government, to
the use of his design and for the impair- pay him, that his patented method of
ment of his patent should be derived. construction was used, and what the value
But we not only have the court of claims Wall. 269, 19 L. ed. 453; Ball Engineer-
of it was. Gibbons v. United States, 8
finding that the experiment of attempting Co. v. J. G. White & Co. 250 U. S. 46,
ing to procure the desired channel by ap-
pellant's method and under his plans,
pursued through many years and definite-
ly for four years, from 1902 to 1906, at
an expense to the government of $450,-
000, resulted in failure, but we have the
further action of Congress, next to be

63 L. ed. 835, 39 Sup. Ct. Rep. 393. The three acts requiring the money appropriated to be used in accordance with the design and specifications of the Aransas Pass Harbor Company, which were prepared by [279] appellant, implied clearly that Congress intended to give

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the experimental construction of ap, the General Oil Company, filed herein, pellant a fair trial, and common hon- November 15, 1920, for an order auesty would infer a disposition, but thorizing Frederic A. Delano, Esq., renot a contract, to pay for the use ceiver herein, to return to said company of the patented form of construc- certain lands claimed under patents tion, if it should be found to be valuable. from the state of Texas, and the But, saying as much as it did, the failure consent of T. P. Roberts and R. S. of Congress to say more imports a de- Allen, owners of patented lands, filed termination on its part to hold within its on the date last mentioned, and the discretion the decision as to the useful- response of the receiver to said motion, ness of appellant's ideas and as to what, filed November 20, 1920, it is ordered that if anything, should be paid for them. said receiver do return to said General The absence of any reference to appel- Oil Company one certain well, known by lant or to his patent, and of any words receiver's number, one hundred and implying a contract to pay him, from the seventy-six (176), which lies south of the three acts of Congress in which reference south edge of the sand bed of the Red is so distinctly made to the specifications river, as it was on the 1st day of April, embodying his ideas, is unmistakably evi- 1920 (marked generally by the border dence that Congress deliberately dealt line of vegetation along the edge of the with appellant's theories as still in the flood plain), together with the land apexperimental stage, and that it was will-purtenant thereto, lying to the south of ing to use the public money to give them a trial in practice, but that payment for them was reserved for consideration until their usefulness should be established, -and this, the finding by the court of claims shows, was never done.

For these reasons, to the sufficient finding that the construction which produced the desired channel did not embody any of the devices of the appellant's patent, we must add that the record fails wholly to show anything from which a promise by the government to pay for the use of such devices can reasonably be implied, and therefore the judgment of the Court of Claims must be affirmed.

Being of opinion that our conclusion would not be affected by any findings to be made on the points asked for in the appellant's motion to remand for additional findings of fact, that motion is denied. Affirmed.

the south edge of the sand bed of said river, and the structures, equipment, and material pertaining to said well, and the net proceeds of the production thereof that have come to the hands of said receiver, less operating expenses and reservations, upon terms that said General Oil Company comply with the provisions contained in the order of this court, made June 7, 1920, respecting the return of certain lands lying south of the south edge of the sand bed of said river which were, on the 1st day of April, 1920, in the possession of persons claiming [281] under patents from the state of Texas, and not included in the river-bed lands as in said order defined.

It is further ordered that, except as herein above granted, the motion of said General Oil Company for the return of lands, filed November 15, 1920, be, and it is hereby, denied.

[280] STATE OF OKLAHOMA, Complainant,


STATE OF TEXAS, Defendant; the United States of America, Intervener.

(See S. C. Reporter's ed. 280, 281.) [No. 23, Original.]

Submitted November 15, 1920. Entered

December 6, 1920.

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Note. As to constitutional equality of privileges, immunities, and protecMr. A. H. Carrigan in behalf of the tion, generally-see note to Louisville motion.

Safety Vault & T. Co. v. Louisville &
N. R. Co. 14 L.R.A. 579.

Order announced by Mr. Chief Justice On protection of private rights from WHITE: interference by public-see note to Upon consideration of the motion of Forster v. Scott, 18 L.R.A. 543.

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