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deemed desirable, and were made without express permission of the Washington officials, though the proofs show the work was under the supervision of the local federal engineer. These changes, so far as contact with the river was concerned, only reduced the length of the piers. On January 8, 1902, the railroad company wrote the Secretary of War as follows: "The original plans provided for a new double track structure above the old double track bridge, making a width of four tracks in all. These plans were approved by the department with the modification requiring the length of the channel span to be three hundred and twenty feet. In preparing the plans to comply with the requirements of the permit, the old piers, which it had been the original intention to use, were found to be too weak to bear a structure of the very great additional weight consequent upon the increased length of the span, and new piers on each side of the channel were made necessary. The location of these piers it was found necessary to change to accommodate the addition in length to three hundred and twenty feet and their angle to the bridge had to be changed to make them parallel with the current; this latter being required in the permit when the new structure was put up. These two changes made necessary the building of not only one span to take the place of the two short ones over the channel, but of the rebuilding, as well, of two spans; one north and one south of the channel. The increased size of the members of the lengthened channel span made it impossible to space the tracks the same distance as the spacing in the old bridge, and, therefore, the tracks could not be passed from the new to the old spans, and it became necessary to rebuild the whole bridge." And to this reply was made February 5, 1902, as follows: "Replying to your letter of the 8th ultimo in relation to the bridge of the Pittsburgh, Fort Wayne and Chicago over the Allegheny river, I have the honor to advise you that after thorough consideration of the entire subject, the Department concurs with the chief of engineers in his recommendations that it is not deemed expedient to issue a new permit, but that the War Department will accept the construction proposed as a virtual compliance with the permit already issued and interpose no objections to the work." In carrying out the work, while the angle of the new piers was changed so as to conform to the course of the current, and their length to accommodate the tracks used, yet as finally completed the alignment of the new bridge was the same as the old, and the changes were accepted by the War Department as a compliance with its permit. This was all prior to the accident here involved.

The railroad company being duly vested, as we have seen, with the right to rebuild, the next inquiry is whether it properly and skillfully did the work, for the measure of its duty in that regard was to reconstruct the bridge in a careful and skillful manner, having due regard to the rights of the public and to those affected by the exercise of the franchise. Hodge v. Lehigh Valley (C. C.) 39 Fed. 449. In reconstructing the bridge the railroad maintained track communications across the stream. We are of opinion they were justified in doing so. The bridge was a connecting link in a great artery of trade and travel, and, if the maintenance of that connection necessitated a temporary interference with the right of navigation, it would seem that such temporary interference was lawful. Indeed, in the case of Hamilton v. Vicksburg, 119 U. S. 280, 7 Sup. Ct. 206, 30 L. Ed. 393, where the rebuilding of a bridge completely blocked navigation, it was held lawful, and that complete temporary stoppage of navigation subjected the company rebuilding to no legal liability therefor. This principle is in accord with that governing the use of highways generally, for, while they are designed for travel, and must therefore be kept clear of obstructions, the law justifies the latter from the necessity of the case, when they are of a temporary character. 15 Ency. of Law, p. 491. In carrying out the present work the railroad drove piling below the old piers, and extending forty feet down the stream, to which the old bridge was moved. It was kept in this position while the new piers and superstructure were being built. Furthermore, in order to strengthen the old bridge in its new alignment, a group of piling was driven in the channel span. It was against this piling the Margaret struck on the rebound after striking the piling at one of the old piers.

It is contended by the libelant that there was no permit by the Secretary

of War and chief of engineers to place a bridge on this particular alignment, forty feet down stream, and that it was therefore an unauthorized structure, and the piling to support it was an illegal obstruction. We cannot accede to this view. We think the right to rebuild necessarily carried with it the right to use means which skillful engineering practice and expert bridge construction deemed safe and necessary to replace the bridge. Now, the proofs are that the rebuilding could be done in two ways: One was to maintain the old bridge, and construct the new simultaneously on the old alignment; the other was to follow the practice here employed. In view, however, of the fact that the old piers had to be replaced by new ones, the first method would have necessitated placing falsework substantially across the river, and wholly stopped navigation between spans. The proofs are express, and indeed there is no proof by engineers to the contrary, that the moving of the old bridge to the new alignment was good engineering · practice, and was the most desirable and practical method for this work. Moreover, in the case already referred to (Hamilton v..Vicksburg, supra), such side alignment was followed, and seems to have been approved as a proper practice, although the piling there driven on the side alignment was continuous and completely blocked the passage of boats. Moreover, the permit in the case in hand left the supervision of reconstruction to the local federal engineer, and it is proved he was consulted in reference to the work as it progressed. Whether the old bridge should be moved to the new alignment during the work was, in our opinion, an engineering detail which under the permit fell under the supervision of that officer. Its temporary location on a side alignment was not one to which, by the terms of the act, resort must be had to the War Department for approval. That act contemplated that the location and plan of the permanent structure should be determined by the Secretary of War and the chief engineer, but did not contemplate that location of temporary structures to aid in reconstruction and maintaining communication should be exclusively the subject of such permit, and, unless so warranted, illegal. Such holding is not within the language of the act, and the action of the War Department officials in leaving supervision to the local federal officer is in accord with this view. Holding as we do that the bridge on the side alignment was lawful, and finding as we do that the placing of this supporting piling in the channel was proper engineering practice, and the piling was not kept in place an unreasonable length of time, it is clear that the injury that resulted to the libelant's boat therefrom cannot be charged to the respondent. The obstruction was lawfully placed in the channel to support the bridge. The libelant, with full knowledge of its existence, saw fit to attempt to pass it at a high stage of water. Unfortunate as were the consequences, they cannot be visited upon the respondent. A decree will therefore be entered dismissing the libel.

WESSEL et al. v. UNITED MATTRESS MACH. CO.

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(Circuit Court of Appeals, Sixth Circuit. June 15, 1905.)

No. 1,397.

1. PATENTS-INFRINGEMENT IMPROVERS.

It is the well-settled rule that, where two inventors improve an old machine, each is entitled to the benefit of his own improvement, so long as it differs from that of the other, and does not include his. 2. SAME-MATTRESS-STUFFING MACHINE.

The Stephenson patent, No. 399,093, for improvements in mattressstuffing machines, with respect to the means employed for adjusting vertically the cover of the press box and spout, in adapting them to different sizes of mattresses, must be limited to the means specified, or its equivalent, and cannot be broadly construed to cover any means for accomplishing the same result. As so construed, held not infringed.

Appeal from the Circuit Court of the United States for the Southern District of Ohio.

A. L. Jackson, for appellants.

Russell Wiles, for appellee.

Before LURTON and SEVERENS, Circuit Judges, and WANTY, District Judge.

SEVERENS, Circuit Judge. This is a suit in equity brought by the appellee, wherein it complains of the infringement by appellants of rights secured by letters patent Nos. 376,399 and 399,093, granted to Stephenson-the former bearing date January 10, 1888, and the latter, March 5, 1889-which the appellee claims to own. Both patents relate to mattress-stuffing machines. Patent No. 376,399 was held void by the court below, and that decision is not brought up by this appeal. Claims 1, 3, and 7 of No. 399,093 were held valid, and an interlocutory decree was entered in favor of the appellee for profits and damages, and for an injunction. The defendants below have appealed from that decree. Wessel alone was made defendant by the bill as filed. Woolery was let in to be joined as defendant upon his intervening petition, showing that he sold to Wessel the machine which the bill alleges to be an infringement of the appellee's patents. The defendants answered severally, but their answers are substantially alike; and they deny that Stephenson was the original inventor of the devices which are the subjects of the patents, or that they were patentable inventions; allege anticipation, and that the devices had been in prior use more than two years before application for the patents; and deny infringement.

The mattress-stuffing machine to which the patent No. 399,093 relates consists of a bed or floor laid on cross-timbers supported by posts, vertical sides to the bed, and a cover or lid; all being arranged like a box, to conform in a general way, in length, width, and depth, to the shape of the mattress to be stuffed. The lid is thrown up on a hinge at the rear end, while the stuffing is put into the box, and then brought down so as to be nearly parallel with the floor and secured. The open end of the sack or mattress cover is brought over and secured upon a spout arranged upon the forward end of the box. Thereupon a "follower," having a face about the size of the cross-section of the box, is advanced from the rear, and presses the stuffing into the sack. The mattress is filled in this way. The foregoing is an outline of the construction and operation of such machines. For greater perspicuity, we shall refer only to such details as are involved in the present controversy.

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Two former patents are shown by the record exhibiting the characteristics of these machines-one, No. 125,233, described as an "improvement in mattress stuffers," granted to Watson April 2, 1872; the other, No. 376,399, also described as an "improvement,' granted to Stephenson January 10, 1888. In his application for the patent now to be considered, he states that his invention is of improvements in the mechanism of machines "of the type shown in

letters patent granted to me the 10th day of January, 1888," which is the patent next before mentioned. He says:

"It is the purpose of my present invention to provide simple means whereby the dimensions of the packing-box, as well as the spout, may be readily increased or diminished, either vertically or laterally, to enable the operator to stuff mattresses of varying sizes, whereby the dimensions of the packing-box and spout shall be at all times varied in the same relative proportions."

He also states an incidental purpose, which is not material now. After describing the devices he proposes for such purpose, he states his claims, 1, 3, and 7 of which are as follows:

"(1) In a mattress-stuffing machine, the combination of a laterally expansible press-box, a vertically adjustable and laterally expansible box-cover, a spout connected with the discharge-mouth of the press-box, composed of two upper sections movable vertically and laterally adjustable, and two lower sections laterally adjustable and loosely connected with the upper sections, substantially as described."

(3) In a mattress-stuffing machine, the combination, with a press-box expansible laterally, and a vertically adjustable box-cover, of a four-part spout located at the end of said press-box, and composed of two upper and two lower sections lapped upon each other, the two upper sections being movable vertically, and one upper and one lower section being movable laterally in unison with the laterally adjustable side of the press-box, and means for so adjusting the spout-sections, substantially as described."

"(7) In a mattress-stuffing machine, the combination, with a press-box having one side wall adjustable laterally, and a vertically movable box cover comprising removable and replaceable sections to vary its width, of a spout located at the discharge-mouth of the press-box and comprising two upper sections movable vertically and laterally adjustable, and two lower sections laterally adjustable and loosely connected with the upper sections, substantially as described."

From what has now been stated, it appears that he intended to provide means for expanding the stuffing box, and correspondingly the spout, both laterally and vertically, or to diminish them, to suit the different widths and thicknesses of the mattresses proposed to be stuffed. To provide for lateral extension of the box, he made one side movable, so that it could be set off or brought nearer the stationary side. The cover was made of slats running lengthwise of the cover, and severally removable. And he divided the spout into four parts, so that they would overlap in the bottom, top, and each side. Some of these parts were stationary, the others sliding on them. Thus the spout could be arranged to conform to the mouth of the box as the latter should be arranged. Then, to provide means for vertical adjustment, he fastened, by brackets on the posts extending upwards from the bed, mitre gears actuated by a shaft and crank with handle-the lower gear having a horizontal position and centrally secured in it a screw descending into corresponding meshes in the rear bar of the frame of the lid. By operating the miter gears, the screw turns into or out of its meshes in the bar of the lid, and thus raises or lets down the latter as may be desired. This apparatus is duplicated at the other end of the bar. We presume the friction in the apparatus is sufficient to hold the bar of the lid stationary when the gears cease to be operated. Doubtless this is an old device in mechanics for effecting changes. in the distance at which one object is brought and held in relation

to another. An instance of such a use is shown in a recent case which we had before us (Rich v. Baldwin [C. C. A.] 133 Fed. 920), where its utility in a combination for effecting a rapid and variable relation of parts was clearly demonstrated. It is, however, a matter of doubt whether in the present instance it has any peculiar adaptation to the purpose which relieves its appropriation from that process of selection which a common mechanic would make in exercising the ordinary skill of his art to accomplish such an object, if it seemed desirable. The court below, however, in its opinion, after canvassing the other features of the patent, and without finding other ground for supporting it, said:

"The vertically adjustable box-cover and spout of the complainant's second patent are not found in the Watson device, but are found and employed in the device of the defendants."

The implication is that the employment by Stephenson of the means for making the cover of the box and spout vertically adjustable in his combinations was regarded as a patentable invention. The court found, as it could hardly help doing, that the means employed by Watson, and by Stephenson in his former patent, for making the box and spout laterally adjustable, were substantially the same in their mode of construction as Stephenson had employed in his later patent. The bottom and lid of the box in Watson's patent were made adjustable laterally by dividing them lengthwise and overlapping the parts, thus permitting the parts to slide upon each other. And he made his spout adjustable laterally in the same way. In Stephenson's first patent he made his spout adjustable laterally in the same way, but made his lid in slats running lengthwise, and held in place near the fore end by a bar running across them. These slats were pivoted at the rear on a rod extending through them. By removing these slats, or inserting others, the cover was narrowed or widened, as might be desired, to suit the width of the mattress. In his later patent he uses the same cover as in his former patent, and uses the same device for making his spout vertically adjustable as Watson and himself had done for making the spout adjustable laterally; that is, he made the parts of the sides to slide upon each other, up and down, precisely as he had before made the top and bottom for the purpose of lateral expansion or contraction. It is manifest that a mechanic intent on finding means for vertical adjustment would see in the machine before him a ready way of effecting it.

For this reason, as we must think, the counsel for the appellee prudently laid stress on the novelty of the means employed in the later patent for effecting the vertical adjustment of the cover already explained, by which we mean lifting and lowering the bar in the rear of the cover to which it was hinged. Granting for the present purpose that the patent sued on may be supported upon the ground of novelty in respect to the particular means employed for vertically adjusting the cover, and granting further that the other parts of the appellants' machine are equivalents of the other elements in the combinations claimed in the later Stephenson pat

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