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other, they have neither the rights, remedies, nor relations of tenants in common. Each has a separate dwelling in law.'
88. What may be held by.-A tenancy in common may exist in every species of property, real, personal, or mixed. Two or more persons may, therefore, be tenants in common of a fixture, or of the right to use or convey water in a ditch. 'It is true that the mere right to water is a sort of incorporeal thing; but the water itself is substantial and tangible, and as the right gives the party control and possession of this commodity, and entitles the party to damages for its diversion by another, we do not see why this right may not be acquired by two or more acting together, or why, when they do acquire it, they do not hold it as other property.' And if a number of persons adopt a trade-mark for their united interest, or had inherited such mark, it is said that they are tenants in common thereof. So, too, a franchise be held by two or more persons as tenants in common.5
289. Co-Patentees. No doubt, the rights and privileges created by virtue of the issuing of letters patent for an invention may be held by two or more persons. But whether, when so held, the parties are tenants in common, is a question not fully determined in this country. The parties may, beyond all question, enter into such an agreement in regard to their patent as will make them tenants in common. But, in the absence of any stipulation, what are the relations of copatentees by mere operation of their patent? In one instance, the answer given is that they "are simply joint-owners, or tenants in common, of the rights and property secured by the patent; and their rights, powers, and duties as respects each other, must be substantially those of the joint-owners of a chattel." In the first opinion by an American Judge, in
1 Wiggin v. Wiggin, 43 N. H. 561; Abbott v. Wood, 13 Me. 115; McCormack v. Bishop, 28 Iowa, 233; Loring v. Bacon, 4 Mass. 575; Cheeseborough v. Green, 10 Conn. 320.
*Hill v. Hill, 43 Penn. St. 521.
3 Kimball v. Gearhart, 12 Cal. 47; Bradley v. Harkness, 26 Cal. 69; Reed v. Spicer, 27 Cal. 57.
'Browne on Trade Marks, sec. 604.
› Harven v. Mehlgarten, 19 Ill. 95; Livingston v. Lynch, 4 Johns. Ch. 573.
* Pitts v. Hall, 3 Blatchf. C. C. 206.
C. & P.-10
which this subject seems to have been much considered, the conclusions were announced as being subject to further discussion of the question, and as being put forth "in the hope that the attention of the parties interested may be attracted to the subject, and that the question may be brought before the Supreme Court of the United States for adjudication." The conclusions, so announced, were that joint-patentees were substantially tenants in common, and having between each other the rights and remedies accorded by law to such tenants; and that if either "appropriates any portion of the exclusive right or common property to his separate use or benefit, by either the use or sale of the patented machine, he does what is in principle the same as a conversion, by destruction or sale, of the joint property by a tenant in common, which authorizes his cotenant to maintain trover."1 The Court, therefore, considered that no objection existed to the maintaining, by one joint-owner of a patent, of an action against his co-owner for infringement. But other American authorities at least doubt the correctness of the conclusion that one joint-patentee is responsible to his co-owner for an infringement of their patent.2 In Massachusetts, an action was brought to compel the defendants to account with plaintiffs, and to pay over to them such sums as might be found due. The facts on which the plaintiff relied were as follows: The owners of an invention, and letters patent issued therefor, transferred to three other persons the exclusive right, within specified parts of the county of Middlesex, to use and to vend to others to use (but not to build or make) the machines constructed according to the patent. The right so transferred subsequently became vested in two persons. These two both sold machines within the allotted territory. It appeared that one of them had sold seventeen more machines than the other, and realized large profits therefrom. The question before the Court was whether he should be required to account for the profits made from the sale of these machines. After considering the analogies between patent rights and other species of property, the Court determined that they
Pitts v. Hall, 3 Blatchf. C. C. 208.
Curtis on Patents, sec. 188-190; Clum r. Brewer, 2 Curtis C. C. 524.
were "compelled to reject all arguments from analogy, and look at the question upon its own apparent merits." Looking at the question in this light, they said: "There is nothing to restrict the party owning each moiety of the right from selling and assigning that moiety, or any fractional part of it, or as many fractional parts as he pleases. Each may purchase as many machines as he pleases; and having purchased them, he may sell them to others, with the right to use and sell them; or may refuse to sell them, and may rent them, or establish manufactories, either alone or in company with others, in which the machines shall be used. Or either party may neglect or refuse to purchase, use or sell, any machines or any rights, or to make his moiety profitable in any way. The right is thus subject to transfers and subdivisions, and may be used in a great variety of ways. None of the parties interested has any right to control the action of the other parties, or to exercise any supervision over them. It is difficult to see how an equitable right to contribution can exist among any of them, unless it includes all the parties interested, and extends through the whole term of the patent right. And if there be a claim for contribution of profits, there should also be a correlative claim for losses, and an obligation upon each party to use diligence in making his interest profitable. *** In the absence of any contract, we think each party was at liberty to use his moiety as he might think fit, within the territory described. If the defendants have realized any profits in the manner alleged, it has been by investing capital in the purchase of machines, and the use of skill and labor in selling them; and they have taken the risk of losses. Apparently there is no more reason why the plaintiffs should claim a part of the advanced price for which they may have sold their machines, than there would have been for claiming a part of the price if they had sold the right itself for an advance. It may possibly be that the sale of seventeen machines so far supplies the market that the plaintiffs' moiety of the right is greatly reduced in value; but if it be so, the consequence is very remote, and dependent upon a great variety of causes. There have been patented articles in respect to which such a sale would have greatly enhanced the value of the other moiety of the right, by its
tendency to create a demand. Such a consequence would also be remote. These parties must be regarded as having interests which are distinct and separate in their nature, though they are derived from the same contract; and having such interests, with the right to use them separately, they cannot, for any legal use of them, incur any obligation to each other."1
In England, co-patentees seem to be rather owners in severalty than cotenants. Each may use the patent without subjecting himself to liability to the other. "The right conferred is a right to exclude all the world other than the grantees from using the invention. But there is no exclusion in the letters patent of any one of the patentees. The inability of any one of the patentees to use the invention, if any such liability exists, must be sought elsewhere than in the letters patent. But there is no principle, in the absence of contract, which can prevent any persons not prohibited by statute from using any invention whatever. Is there any implied contract where two or more persons jointly obtain letters patent that no one of them shall use the invention without the consent of the others, or if he does, that he shall use it for their joint benefit? I can discover no principle for such a doctrine. It would enable one of two patentees either to prevent the use of the invention altogether, or else to compel the other patentee to use his skill and capital in the use of an invention on the terms of being accountable for half the profit, if profit should be made, without being able to call on his co-patentee for contribution if there should be loss. This would be to place the parties in a relation to each other which I think no Court can assume to have been intended in the absence of express contract to that effect."2
90. Who may be.-All persons, natural and artificial, capable of acquiring property, real or personal, may become tenants in common with one another. In a preceding chapter, it has been shown that corporations, whether sole or aggregate, cannot be joint-tenants with one another nor with a natural
Vose v. Singer, 4 Allen, 228.
"Lord Chancellor Cranworth, in Mathews v. Green, Law R. 1 Ch. 33. See also Re Russell's Patent, 2 De G. & J. 130.
person, because the incident of survivorship-one of the chief and most important attached to joint-tenancies-could not be applied to either of two artificial persons endowed with perpetual life, and ought not to attach where, from one tenant being natural and perishable, and the other artificial and perpetual, there could be "no reciprocity of survivorship between them." The reasons preventing corporations from holding an estate as joint-tenants, do not exist in regard to tenancies in common. Therefore, "the books and cases do not afford any instance in which this right of holding lands as tenants in common, either with each other or with natural denied to corporations.
91. Legislative Grantees. It is said that a grant by the Legislature is not always subject to the same rules that govern grants to private persons, and that it is a statute conveyance, to be interpreted and controlled by the intent of the Legislature in making it. Hence, where land was frequently granted in large tracts to a number of persons, on condition of settlement, it was held that the grantees took as tenants in common, because the Court were sure that such, beyond reasonable doubt, was the intent of the Legislature.'
292. A tenancy in common may be created by any of the various means by which two or more persons can acquire a unity of the right to possess any species of property. It may arise out of what was before an estate in severalty, by either a grant or devise of such estate to two or more persons, or by a grant of an undivided part thereof to one person, by virtue of which the grantor and the grantee would become cotenants with each other. It may result from a divorce by which lands before held by entireties, or as community property, become the property of the former spouses, in separate but undivided moieties. It is also called into being by such a destruction of a "joint-tenancy or coparcenary as does not sever the unity of the right to possession. And so, upon the
De Witt v. San Francisco, 2 Cal. 298; N. Y. & S. Canal Co. v. Fulton Bank, 7 Wend. 412.
" Higbee v. Rice, 5 Mass. 350.
* McLeran v, Benton, 31 Cal. 29.