Banker v. Caldwell

• Decision Date: 01 January 1859
• Citation: 3 Minn. 46
• Parties: ISAAC A. BANKER vs. JAMES Y. CALDWELL.
• Court: Minnesota Supreme Court

3 Minn. 46

(3 Minn. R. p. 94.)

ISAAC A. BANKER vs. JAMES Y. CALDWELL.

Supreme Court of Minnesota.

Appeal from judgment of district court, Ramsey County.

The appellant brings the action. The complaint alleges that the plaintiff is the owner of a certain set of abstract books and books of indexes containing complete abstracts of title to all the lands in the County of Ramsey, with the incumbrances and liens upon the same; that they had been prepared at great cost, labor, and skill, of plaintiff and others, and were of the value of five thousand dollars, and were chiefly valuable on account of the labor, care, skill, and expense, bestowed in preparing them. It then alleges the rendition of a judgment against the plaintiff, the issuance thereon of an execution to the defendant, as sheriff of the county, the levy of it, by defendant, upon the books of abstracts and indexes; and that, after the books came into his custody under said levy, the defendant, surreptitiously and clandestinely, and without the knowledge and consent of the plaintiff, caused copies of them to be made, and that defendant intends to sell said copies to one Heenan. It therefore prays for an injunction restraining the sale of the copies, and for a judgment that they be delivered to plaintiff.

To this complaint the defendant demurred, on the ground that it does not state facts sufficient to constitute a cause of action.

The court sustained the demurrer, and judgment was entered for defendant, from which this appeal is brought.

Points and authorities for appellant; the demurrer makes these points: —

1. That plaintiff has no exclusive property or right in the books of abstracts and indexes.

2. That defendant, being legally in possession under the execution, had a right to copy them for any purpose.

3. That it does not appear that plaintiff has been or will be damaged by the acts of defendant.

4. That he is not entitled to the relief demanded.

1. First, the complaint states the plaintiff to be the owner of books of abstracts and indexes, that they contain complete and perfect abstracts of titles to all the lands in Ramsey County, with the liens and incumbrances thereon, that they had been prepared at great care, labor, and skill, of plaintiff and others (those from whom he purchased), that they were chiefly made valuable because of such care, labor, and skill, and were of the value of $5,000. From these facts, the nature, character, and arrangement, of the contents of the books fully appear. The phrase, "abstract of title," has a well settled legal signification. It signifies "a brief account of the title to real estate." Bouv. Law Dict. 42; Preston on Abstracts; 2 Sugden on Vendors, 57 to 88; Wharton Law Dict. 10. Second, the books, therefore, contain brief statements of everything affecting title to all the lands in Ramsey County, prepared (not copied), compiled, and condensed, from original sources of information — the original deeds or the records of the county. Plaintiff's rights are those of the author or compiler of an original work. Third, the author of an original work has at common law a copyright in, that is, an exclusive right to make and sell copies of, his work. 2 Bla. Com. 406; 2 Kent Com. 437 [365]; Curtis Copyright, 19 and 20; Eden Injunction, 308 and notes; Miller v. Taylor, 4 Burr. 2303; Donaldson v. Beckett, 4 Burr. 2408; Hoyt v. Mackenzie, 3 Barb. Ch. 320; Wetmore v. Scovell, 3 Edw. Ch. 515. Fourth, the right is not taken away by the author selling copies, unless he thereby evince an intent to dedicate the work to the public. Miller v. Taylor, supra; Donaldson v. Beckett, supra. Fifth, the right is independent of the statute of copyright, and is not taken away by it. See same cases. The doubt as to the effect of the English statute in the above cases arose on a proviso, which is not in the federal statute. Besides, the federal statute could not and was not intended to affect the common law of the several states. Wheaton v. Peters, 8 Peters, 591. Sixth, but the doctrine of copyright is not necessary to sustain plaintiff's title; for all the cases agree, that an author has an exclusive property in his manuscript work (before he abandons it by publication or otherwise), which property the law will protect against invasion by any one. Miller v. Taylor, supra, 2340, 2356, 2360, 2369, 2378, 2379, and 2396; Pope v. Curl, 2 Atk. 342; Thompson v. Stanhope, Ambler, 737; Wheaton v. Peters, 8 Peters, 591. Seventh, that the work is composed of materials not originated by the author, but which are accessible to everybody, does not prevent his having property in it if the arrangement, compilation, condensing, and preparation, of such materials in the work are the product of his labor, care, and skill, and give value to the work. This is the case with maps, charts, scientific and text books, reporter's notes, translations, and works of the like kind. Story Eq. Jur. note to § 940; Gray v. Russell, 1 Story, 11; Matthewson v. Stockdale, 12 Vesey, 270; Longman v. Winchester, 16 Vesey, 268; Wilkins v. Aikin, 17 Vesey, 424; Cary v. Longman, 1 East. 358. Eighth, the books of abstracts and indexes are on a par with the works before referred to. It is not necessary that the method of arranging the materials should be invented by the author. It is enough that the work is the result of his care, labor, and skill, and is not copied from another work.

2. The sheriff, under his levy, had a right only to take possession of and sell the books pursuant to the statute. His being rightfully in possession gave him no right to make copies. Miller v. Taylor, supra, 2378 and 2379; Thompson v. Stanhope, Ambler, 737.

Points and authorities for respondent: —

1. That the demurrer to the complaint in this action was properly sustained, and the judgment below was correct, because the complaint does not state facts sufficient to constitute a cause of action, or to entitle the plaintiff to any relief therein demanded.

2. Because it is stated, and appears from the complaint, that the plaintiff was, on the 31st day of August, 1858, and afterwards continued to be, the owner of the abstract books and books of indexes in the complaint mentioned, and that the defendant, as sheriff, and by authority of law, duly and legally levied upon and took the books and indexes in question under an execution as the property of the plaintiff, as required by the law to do. It therefore appears from the complaint that the defendant became and was rightfully in possession of the books.

3. Because it also appears that the execution was issued and delivered to the defendant, and the books levied upon, on the 31st of August, 1858, and that the time for the return of the execution (60 days) had not expired when this action was commenced.

4. Because it appears from the complaint that the books and indexes in question were copied and the contents thereof taken from the public records of the county in the register of deeds' and clerk's offices, and that the same only contained such facts and information as are contained in the public records of said county, which are by law open and accessible to the public, and, inasmuch as it does not appear that the plaintiff had acquired and possessed, or could acquire or possess, any exclusive right to, or property in, or control over, the information, facts, and matters, therein contained, to the exclusion of others.

5. Because the defendant, having lawfully and rightfully become possessed, and being in the rightful possession, of the said books and indexes, might rightfully copy the same, or cause them to be copied, without any actual injury to the same, or impairing or detracting from the information and matters contained therein, for the purposes stated in the complaint, or for any other lawful purpose whatever.

6. Because the complaint does not state or show how or wherein the plaintiff has or will be damaged, or sustain any loss, by reason of the acts of the defendant, inasmuch as it does not appear that the multiplication of copies would affect or injure the plaintiff's interest.

7. That the common law doctrine of copyright for the protection of authors and literary writers does not apply to this case, inasmuch as it is not stated or pretended that the books, or their system, style, or matter, is the original or intellectual production of the plaintiff.

Brisbin & Bigelow, and J. & C. D. Gilfillan, for appellant.

M. E. Ames, for respondent.

FLANDRAU, J.

The character of the books for which a copyright or exclusive property at the common law is claimed in this case, is thus given in the complaint: "A certain set of abstract books and books of indexes, containing complete abstracts of title to all the lands situated in the said County of Ramsey, with the incumbrances and liens upon the said lands, prepared at great cost and expense, and labor, and skill, of the plaintiff and others, of the value of five thousand dollars."

The court below decided that the books were not of a character which entitled them to the protection given to works of originality, as "it may be inferred that said books are copies, condensed it may be, of the public records of the county."

I do not know of a technical expression that is susceptible of, or has obtained, a more definite and certain signification than the one used to designate the nature of these books; "abstracts of title" has been the subject of treatises by learned commentators, and finds a place in almost all law dictionaries. See Preston on Abstracts; Lee on Abstracts. In Burrill's Law Dictionary, vol. I, p. 12, the following apt...