Andrews v. Cross

• Decision Date: 01 June 1881
• Citation: 8 F. 269
• Parties: ANDREWS and others v. CROSS.
• Court: U.S. District Court — Northern District of New York

8 F. 269

ANDREWS and others v. CROSS.

United States Circuit Court, N.D. New York.

June 1, 1881

Thomas Richardson, for plaintiffs.

No counsel for defendant.

BLATCHFORD C.J.

This suit is brought on re-issued letters patent No. 4,372 granted to Nelson W. Green, one of the plaintiffs, May 9 1871, for an 'improvement in the methods of constructing artesian wells;' the original patent, No. 73,425, having been granted to said Green, as inventor, January 14, of 1868 on an application filed March 17, 1866. The specification of the re-issue says:

'My invention is particularly intended for the construction of artesian wells in places where no rock is to be penetrated. The methods of constructing wells previous to this invention were what have been known as 'sinking' and 'boring' in both of which the hold or opening constituting the well was produced by taking away a portion of the earth or rock through which it was made. This invention consists in producing the well by driving or forcing down an instrument into the ground until it reaches the water, the hole or opening being thus made by a mere displacement of the earth, which is packed around the instrument, and not removed upward from the hole, as it is in boring. The instrument to be employed in producing such a well, which to distinguish it from 'sunk' or 'bored' wells, may be termed a 'driven well,' may be any that is capable of sustaining the blows or pressure necessary to drive it into the earth; but I prefer to employ a pointed rod, which, after having been driven or forced down until it reaches the water, I withdraw, and replace by a tube made air-tight throughout its length, except at or near its lower end, where I make openings or perforations for the admission of water, and through and from which the water may be drawn by any well-known or suitable form of pump. In certain soils, the use of a rod preparatory to the insertion of a tube is unnecessary, as the tube itself, through which the water is to be drawn, may be the instrument which produces the well by the act of driving it into the ground to the requisite depth. To enable others to make and use my invention, I will proceed to describe it with reference to the drawing, in which figure 1 represents a portion of the pointed rod above mentioned, and figure 2 a portion of the tube which forms the casing or lining of the well. The driving rod, A, I construct of wood or iron or other metal, or of parts of each, with a sharp point, b, of steel or otherwise, to penetrate the earth, and a slight swell, a, a short distance above the point, to make the hole slightly larger than the general diameter of the rod. This rod I drive, by a falling weight or other power, into the earth, until its point passes sufficiently far into the water to procure the desired supply. I then withdraw the rod and insert in its place the air-tight iron or wooden tube, B, which may be slightly contracted at its lower end, to insure its easy passage to its place. In general, this tube, B, I make of iron, and of a thickness that will bear a force applied at its upper extremity sufficient to drive or force it to its place; and, where a large or continuous flow of water is desired, I perforate this tube near its lower end, to admit the water more freely to the inside. The perforations, c, may be about one-half of an inch in diameter, less or more, and from one to one and a half inches apart, and the perforations may extend from the bottom of the tube upward from one to two feet. The diameter of the tube should be somewhat smaller than the diameter of the swell, a, on the drill end of the driving rod, D. In localities where the water is near the surface of the ground, and the well is for temporary use only, as in the case of a moving army or for temporary camps, lighter and thinner materials than iron may be used for making the tubes, as, for instance, zinc, tin, copper, or sheet metal of other kind, or even wood may be used. The rod may of any suitable and practical size that can be readily driven or forced into the ground, and may be from one to three inches in diameter. In some cases the water will flow out from the top of the tube without the aid of a pump. In other cases, the aid of a pump to draw the water from the well may be necessary. In the latter cases, I attach to the tube, by an airtight connection, any known form of pump.'

The claim is as follows:

'The process of constructing wells by driving or forcing an instrument into the ground until it is projected into the water, without removing the earth upward, as it is in boring, substantially as herein described.'

The plaintiffs claim as exclusive owners of the re-issue for the county of Madison, New York, and have proved their title to that effect. The bill alleges that the defendant has made, sold, and used wells in Cazenovia, in said Madison county, embracing said invention, and that he has one or more of said wells and is using the same. The answer sets up as defenses--

(1) That Green is not the 'first and original' inventor; (2) that the bill 'does not describe any improvement in the method of constructing wells, or otherwise, by which the defendant can know the process or improvement in the manner of constructing wells' claimed in the bill; (3) that the defendant is a wagon-maker and has done no other business, and the manufacturing of wells is not an incident to his profession or trade; (4) that the claim of Green as inventor was barred because the improvement was in use more than two years prior to the granting of his patent; (5) that the re-issue 'does not describe any new process, or any new discovery or invention, but only claims an addition to the original patent, a patent on the free flow of water, which is not patentable, as it does not claim any patent or any new invention of the application or uses of flowing water, and is therefore void, and of no force and virtue, and having been adopted and gone into general use by the public, said pretended patent is therefore void in law and equity.'

The answer also sets up that a United States patent granted to James Suggett, March 9, 1865, No. 42,126, describes the same process claimed by the original patent to Green; that the re-issue to Green is an infringement on the said patent to Suggett, and on three United States patents, one Canadian patent, one British patent, granted prior to the original patent to Green. It does not allege that the patent to Suggett was granted before the invention of Green was made, or that Green did not invent what he claims. It alleges that the same invention was 'in public use for more than two years, in the United States, Canadas, and Great Britain, prior to any claim' for a patent having been granted to Green, and that all claims of Green 'as the first inventor of such new process of constructing wells was abandoned by said Green, from such lapse of time, to the public. ' There is no allegation that the invention was in public use in the United States for more than two years before Green applied for his original patent, or that any use was with his consent or allowance, or that he abandoned the invention to the public in fact, or otherwise than inferentially from the fact alleged that it was in use for more than two years before his original patent was granted. The answer also sets up the existence of various wells, at various places, at dates prior to Green's application for his patent. It alleges that in April or May, 1861, there was put down at Independence, Iowa,-- 'A well made by driving down into the earth an iron pipe or tube shod with iron or steel point, with perforations in the tube above the point, without a screen over the same, and sections of tubing attached as driven down, until it was projected some feet into the water, and to the top of this was attached an iron pump, and that same was used for pumping water through, and was probably used at such place from April or May, 1861, until some time in July or August, 1861, and was known to and used by ' (certain persons named;) and that 'there was also put down in the town of Preble, Cortland county, New York, a well on the farm of Mr. William E. Tallman (now dead) in the summer of 1859, by using an iron tube, one inch inside diameter and perforating it with small holes at the lower end for about one foot, and by heating and closing the lower end, so as to form a point to exclude the earth while driving. The pipe, after being thus prepared, was used by either first driving down an iron rod, and withdrawing the rod, and then driving down the pipe in the place where the rod with withdrawn, or by driving down the pipe without the use of an iron rod, and attaching sections of pipe by screw couplings, as driven down, till it was projected to a suitable depth into the water-bearing strata of the earth. An iron pump was then tightly screwed to the top of the pipe, and, by the use of a pump so attached, water was raised for use, and a frame was built over it, on which was constructed a windmill, so attached to the pump as to work the pump when the wind blew, and raise water through the pipe for watering the stock of said William E. Tallman's farm, and was used by and known to the public; and the same was worked by the windmill, and used for raising water, as aforesaid, for four years, till about 1863, when the pipe was taken up, and was publicly used and known to' (certain persons named.)

The answer does not allege that the use of the wells at Independence and at Preble preceded Green's invention. Finally, the answer denies all parts of the bill not before fully answered. The answer is verified by Mr. Storke, of Cazenovia, the defendant's solicitor, who also signs it as solicitor and counsel. It is not signed or verified by the...