MARION RUSSELL ET AL. Plffs. in Err., V. THE MAXWELL LAND GRANT COM- (See S. C. Reporter's ed. 253-259.) and the southwest quarter of the northeast quarter of section 20, township 33 south, range 63 west of sixth principal meridian. On April 6, 1874, Richard D. Russell, the ancestor of defendants, applied at the local land office to enter this tract under the homestead laws, and on September 5, 1876, proved up and re Maxwell land grant--government survey-loca-ceived his final receipt therefor. tion of land. 1. A claim under the United States to land situated in the Maxwell Land Grant arising fourteen years after the confirmation of that grant by Congress, is inferior and subordinate to a claim of the same land under that grant. 2. A survey, made by the proper officers of the United States and confirmed by the land department of a confirmed Mexican grant is conclusive against any collateral attack in contro versies between individuals. Messrs. Ira W. Buell, W. S. Harbert and Geo. R. Daley for plaintiffs in error. Messrs. Chas. E. Gast and Frank Springer for defendant in error. Mr. Justice Brewer delivered the opinion of the court: *The Maxwell Land Grant is no stran-[255 ger to this court. After the issue of the patent bill was filed by the United States to set it aside an exhaustive investigation, both in the circuit on the ground of error and fraud, and after and this court, a decree was entered, dismissing the bill. United States v. Maxwell Land Grant Co. 121 U. S. 325 [30: 949]; 122 U. S. Decided May 20, well Land Grant Co. 139 U. S. 569, 580 [35: 365 [30: 1211]; Interstate Land Co. v. Max278, 282], in which it was said: 8. Where the lines run by such survey lie on the 1895. IN to for the District of Colorado, ERROR to the Circuit Court of the to review a judgment in favor of the plaintiff, the Maxwell Land Grant Company against Marion Russell et al., defendants, for the recovery of the possession of a tract of land. Affirmed. Statement by Mr. Justice Brewer: On May 9, 1888, the defendant in error, as plaintiff, commenced this action in the Circuit Court of the United States for the District of Colorado to recover the possession of a certain 254] *tract of land. After answer the case came on for final trial on October 10, 1890. The verdict and judgment were in favor of the plaintiff, and the defendants allege error. The facts disclosed by the testimony are substantially these: On May 19, 1879, a patent was issued by the United States to Charles Beaubien and Guadalupe Miranda, their heirs and assigns, for a tract of land known as the Maxwell Land Grant. This patent recites that on January 11, 1841, the territorial governor of New Mexico (that being at the time a part of the Republic of Mexico) made a grant to Beaubien and Miranda of a tract of land with specified boundaries; that on June 21, 1860, Congress passed an Act confirming such grant, with the boundaries therein specified; that on December 16, 1878, the surveyor general of the United States for the territory of New Mexico returned to the land department at Washing ton a survey officially made, giving in detail the boundaries as established by that survey; and in terms "grants the tract of land embraced and described in the foregoing survey." The land in controversy is within the limits of the survey, and thus within the terms of the patent. In 1871 the regular surveys of public lands in the southern part of Colorado were extended so as to include this land, which by those surveys was marked and described as the west half of the southeast quarter, and the northeast quarter of the southwest quarter, "The confirmation and patenting of the to states of all their rights to grant to Beaubien and Miranda operated to the lands embraced in the grant which this country acquired from Mexico by the treaty of Guadalupe Hidalgo. And the only way that that grant can be defeated now is to show that the lands embraced in it had been previously granted by the Mexican government to some other person." See also Beard v. Federy, 70 U. S. 3 Wall. 478 [18: 881; More v. Steinbach, 127 U. S. 70 [32: 51]. The confirmation of this grant was made by Act of Congress of June 21, 1860 (12 Stat. at L. 71). Whatever doubts might have existed before as to the limits or extent of the grant, were settled by that confirmation. Langdeau v. Hanes, 88 U. S. 21 Wall. 531 [22: 606]; Tameling v. United States Freehold & Emigration Co. 93 U. S. 644 [23: 998]. The only claim of the defendants is one under the United States, arising on April 6, 1874, fourteen years after the confirmation of the Maxwell Land Grant. It is therefore inferior and subordinate to that of the plaintiff. In order to obviate the effect of this, the defendants offered to prove on the trial that the survey described in and upon which the patent was based was inaccurate, and that a correct survey would run the lines of the Maxwell Land Grant so as to exclude therefrom the tract in controversy. This testimony was rejected by the court, and this is the error complained of. In the suit brought to set aside the patent, it was said by this court (United States v. Maxwell Land Grant Co. 121 U. S. 382 [30: 959]): "In regard to the questions concerning the surveys, as to their conformity to the original Mexican grant and the frauds which are asserted to have had some influence in the making of those surveys, so far from their being established by that satisfactory and conclusive [256 evidence which the rule we have here laid down requires, we are of opinion that if it were an open question, unaffected by the respect due to the official acts of the government upon such a subject, depending upon the bare prepon derance of evidence, there is an utter failure to establish either mistake or fraud." The accuracy of the survey is, therefore, so far as the government is concerned, no longer open to inquiry. If in a direct proceeding in equity brought by the United States to set aside the patent on the ground of error in the survey the matter has become res adjudicata, it would seem that the patentee could not be compelled in every action at law between itself and its neighbors to submit the question of the accuracy of the survey as a matter of fact to determination by a jury. Nor is the matter open to such inquiry. A survey made by the proper officers of the United States, and confirmed by the land department, is not open to the challenge by any collateral attack in the courts. By section 453, Revised Statutes, full jurisdiction over the survey and sale of the public lands of the United States, and also in respect to private claims of land, is vested in the Commissioner of the General Land Office, subject to the direction of the Secretary of the Interior. In Cragin v. Povell, 128 U. S. 691, 698 [32: 566, 568], it was said by Mr. Justice Lamar, speaking for the court, and citing in support thereof a number of cases: "That the power to make and correct surveys of the public lands belongs to the political department of the government, and that, whilst the lands are subject to the supervision of the General Land Office, the decisions of that bureau in all such cases, like that of other special tribunals upon matters within their exclusive jurisdiction, are unassailable by the courts, except by a direct proceeding; and that the latter have no concurrent or original power to make similar corrections, if not an elementary principle of our land law, is settled by such a mass of decisions of this court that its mere statement is sufficient." The case of Beard v. Federy, is in point. In that case the effect of a patent to land in 257 California, after confirmation *and survey, was before the court. The land, as in this case, was claimed under an old Mex ican grant, and while the proceedings for confirmation of such claims in California differed from that pursued in New Mexico, yet the result of the confirmation is the same. There as here was a statutory provision that the confirmation should not prejudice the rights of third persons, and some reliance was placed upon that provision. It was said by the court, discussing this entire question, 70 U. S. 3 Wall. on page 492 [18: 91]: "By it (the patent) the government declares that the claim asserted was valid under the laws of Mexico; that it was entitled to recognition and protection by the stipulations of the treaty, and might have been located under the former government, and is correctly located now so as to embrace the premises as they are surveyed and described. As against the government this record, so long as it remains unvacated, is conclusive. And it is equally conclusive against parties claiming under the government by title subsequent. It is in this effect of the patent as a record of the government that its security and protection chiefly lie. If parties asserting interests in lands ac quired since the acquisition of the country could deny and controvert this record, and compel the patentee, in every suit for his land, to establish the validity of his claim, his right to its confirmation, and the correctness of the action of the tribunals and officers of the United States in the location of the same, the patent would fail to be, as it was intended it should be, an instrument of quiet and security to its possessor. The patentee would find his title recognized in one suit and rejected in another, and if his title were maintained, he would find his land located in as many different places as the varying prejudices, interests, or notions of justice of witnesses and jurymen might suggest. Every fact upon which the decree and patent rest would be open to contestation. The intruder, resting solely upon his possession, might insist that the original claim was invalid, or was not properly located, and, therefore, he could not be disturbed by the patentee. No construction which will lead to such results can be given to the fifteenth section. The term 'third persons,' as there used, *does not [258 embrace all persons other than the United States and the claimants, but only those who hold superior titles, such as will enable them to resist successfully any action of the government in disposing of the property." In More v. Steinbach, 127 U. S. 83 [22: 55], the same propositions were affirmed, the court saying: "All the questions necessarily involved in the determination of a claim to land under a Spanish or Mexican grant, and in establishing its boundaries, are concluded by-it in all courts and proceedings, except as against parties claiming by superior title, such as would enable them to resist successfully any action of the government in disposing of the property." See also Stoneroad v. Stoneroad, ante, p. 966. These authorities are decisive upon this question. And in the nature of things a survey made by the government must be held conclusive against any collateral attack in controversies between individuals. There must be some tribunal to which final jurisdiction is given in respect to the matter of surveys, and no other tribunal is so competent to deal with the matter as the land department. None other is named in the statutes. If in every controversy between neighbors the accuracy of a survey made by the government was open to question, interminable confusion would ensue. Take the particular case at bar; if the survey is not conclusive in favor of the plaintiff, it is not conclusive against it. So we might have the land grant company bringing suit against parties all along its borders, claiming that, the survey being inaccurate, it was entitled to a portion of their lands, and as in every case the question of fact would rest upon the testimony therein presented, we should doubtless have a series of contradictory verdicts; and out of those verdicts, and the judgments based thereon, a multitude of claims against the United States for return of money erroneously paid for land not obtained, or for a readjustment of boundaries so as to secure to the patentees in some other way the amounts of land they had purchased. It may be said that the defendants have the same right to rely upon the regular surveys, that the plaintiff has upon the survey of this | special land grant. This is undoubtedly true, but the survey is one thing and the title another. If sectional lines had been run through the entire limits of the Maxwell grant, it would not thereby have defeated the grant or avoided the effect of the confirmatory Act. A survey does not create title; it only defines boundaries. Conceding the accuracy of a survey is not an admission of title. So the boundaries of the tract claimed by defendants may not be open to dispute, but their title depends on the question whether the United States owned the land when their ancestor filed his homestead claim thereon. If at that time the government had no title, it could convey none. In this connection it may be well to notice a distinction which interprets some dicta and decisions found in respect to the jurisdiction of courts over boundaries. Whether a survey as originally made is correct or not is one thing, and that, as we have seen, is a matter com mitted exclusively to the land department, and over which the courts have no jurisdiction otherwise than by original proceedings in equity. While on the other hand, where the lines run by such survey lie on the ground, and whether any particular tract is on one side or the other of that line, are questions of fact which are always open to inquiry in the courts. In the case before us the offer was not to show that the land in controversy was one side or other of the line established by the survey. On the contrary, it was conceded that it was within the limits of the survey, and the offer was simply to show that that survey was inaccurate, and that the lines should have been run elsewhere, but this is not a matter for inquiry in this collateral way in the courts. There was no error in the ruling of the circuit court, and its judgment is affirmed. 260] *JOHN M. BOYD, Appt., 2. THE JANESVILLE HAY TOOL COMPANY ET AL. (See S. C. Reporter's ed. 260-267.) Patentee not a pioneer-presumption from issue of letters patent-patent not infringed. 1. Where the patentee was not a pioneer and many patents had been issued for improvements similar to his, the patentee is only entitled, at NOTE. For what patents are granted; when dedeclared void, see note to Evans v. Eaton, 4: 433. As to patentability of inventions, see notes to Thompson v. Boisselier, 29: 76, and Corning v. Burden, 14: 683. As to abandonment of invention, see note to Pennock v. Dialogue, 7: 327. As to distinction between inventions of mechanism, articles or products and processes; when latter ented, see note to Corning v. Burden, 14: 683. Statement by Mr. Justice Shiras: John M. Boyd filed a bill in the Circuit Court of the United States for the Western District of Wisconsin against the Janesville Hay Tool Company and its officers, charging the defendants with infringement of letters patent granted and dated June 17, 1887, for an improvement the complainant, numbered *as 300,687,[261 in hay elevator and carrier. The answer denied that complainant was the original and first inventor, and alleged anticipating patents, prior knowledge and use by others, and that defendants have made and sold hay carriers in accordance with patent No. 279,889, granted June 19, 1883, to F. B. Strickler. There was a general replication; evidence was put in; on November 9, 1888, a decree was entered dismissing the bill of complaint, and from this decree an appeal was taken to this court. Mr. Curtis T. Benedict for appellant. Mr. Charles K. Offield for appellees. Mr. Justice Shiras delivered the opinion of the court: John M. Boyd, the appellant, filed his application on October 25, 1882, and after several amendments, letters patent were granted him on June 17, 1884, and numbered as No. 300,687. The specification discloses that the ent; recording; when assignment transfers extended terms, see note to Gayler v. Wilder, 13: 504. As to when assignee may sue for infringement; when patentee must; when they must join, see note to Wilson v. Rousseau, 11: 1141. As to damages for infringement of patent; treble damages, see note to Hogg v. Emerson, 13: 824. As to patentability of inventions; patentable subjectpat-matter; utility; what constitutes invention; patentable novelty; combinations; foreign patents and their effects, see note to Grant v. Walter, 37: 553. As to including process and product in same patent; separate patents therefor, see note to Evans v. Eaton, 4: 433. As to what constitutes infringe.nent of patent; similarity of devices; designs; combinations; machines; 36: 1073. As to what reissue may cover, see note to O'Reilly construction of patent, see note to Royer v. Coupe, v. Morse, 14: 601. As to assignment, before issuing and reissuing patU. S., Book 39. 158 U. S. 61 973 invention has relation to improvement in hay elevators and carriers, and consists in the peculiar construction of the several parts and in their combination and arrangement. There are fourteen claims, of which twelve appear to be for combinations of parts, and two for specific devices which are claimed to be novel. It is conceded that the defendants, before this suit was commenced, were manufacturing and selling hay carriers made under the Strickler patent, No. 279,889, dated June 19, 1883; and it is claimed, on behalf of the appellant, that as the application for the Strickler patent was filed on May 15, 1888, several months after Boyd's application, that the Strickler patent furnishes no defense to the defendants if the machines made and sold by them infringed any of the Boyd claims. It clearly appears that Boyd was not a pioneer in this department of machinery. Many inventors had preceded him, and many patents had been issued for improvements in hay carriers in form and purpose similar to those de- Upon the assumption that, owing to the prescribed in Boyd's specification. We think thevious condition of the art, Boyd is to restricted case is one where, in view of the state of the to the exact and specific devices claimed by art, the patentee is only entitled, at the most, him as novel, we do not deem it necessary to to the precise devices mentioned in the claims. determine whether either Boyd or Strickler in263] *J. M. BOYD, HAY ELEVATOR AND CARRIER. PATENTED JUNE 17, 1884. vented anything, because we think that the So, too, in the letters patent we find Boyd's As both applications were pending in the Patent Office at the same time, and as the respective letters were granted, it is obvious that it must have been the judgment of the officials that there was no occasion for an interference and that there were features which distinguished one invention from the other. In American Nicolson Pavement Co. v. Elizabeth, 4 Fisher's Pat. Cas. 189, Mr. Justice Strong said: "The grant of the letters patent was virtually a decision of the Patent Office that there is a substantial difference between the in262]ventions. It raises *the presumption that, according to the claims of the latter patentees, this invention is not an infringement of the earlier patent." It would also seem to be evident that, as the purpose of the invention was the same, and as the principal parts of the respective machines described were substantially similar, it was also the judgment of the office that the distinguishing features were to be found in some of the smaller and, perhaps, less important devices described and claimed. Burns v. Meyer, 100 U. S. 671 [25: 738]. We find it useful to adopt the following description of the Boyd invention, given iù appellant's brief: "This carrier involves novel features, which may be stated in a general was as follows: "The stop h, (adapted to be secured to the under side of a single track), having the continuous lugs h3 inclined upwardly from each end of the stop to the center, and therewith the downwardly inclined lugs or bearings h; the stop being adapted to lift the catch coming to it from either direction; to engage the catch and prevent the travel of the carrier; to force the catch down (if it fails to fall by gravity) as it leaves the stop, and to permit the carrier to run past it when desired. The catch (or key) g sliding vertically in the carrier, having lugs adapted to catch the inclines of the stop and be lifted thereby: and (being held up by the grapple) to engage the stop and prevent travel of the carrier on the track; and when released to 'drop' in front of and lock the grapple. "The combination of the vertically slidingcatch g, with the stop aforesaid, and with the tilting grapple, by which the catch or key is lifted by the stop into locking engagement with said stop, and is locked thereto by the grapple, and being released falls or is forced down by the stop into locking engagement with the grapple.' We learn from this description that what the counsel of the appellant regards as the special feature of the Boyd invention are the stop h, the catch g, and their combination in the manner pointed out. And when we turn to the evidence of the appellant's expert, Cunningham, we find that, in analyzing the Boyd machine, 264] he dwells chiefly on the functions *of the stop and of the catch, as constituting its meritorious features, and that the effect and purpose of his testimony, as likewise that of Boyd himself, are to show that there are a similar stop and catch in the defendants' carrier. "In a bay elevator and carrier, the combination, substantially as described and shown, of the stop h, constructed with the upper lugs h1 and the lower inclined lugs h and the catchblock g, provided with the lugs g3, and placed and sliding in a suitable recess in the body of the carrier, substantially as and for the purposes set forth." When we examine the machine as made and sold by the defendants, under the terms of the Strickler patent, we do not find these specific devices, or, rather, we do not find them in the shape and with the functions claimed by Boyd. The comparison made by the defendants' expert, Powers, between the mechanism of the two inventions, in the particulars we are now considering, was as follows: "I do not find the Boyd invention, as summed up in the second claim of his patent, in defendant's carrier, for these reasons: First. The stop enumerated in the second claim of Boyd has a peculiar construction, having lugs h1 upon its upper outer ends and lower inclined lugs h3. Defendants' stop has no occasion for Boyd's lugs 4, nor has it any such lugs; neither are they necessary for the operation of the catch-block. Defendants' catch-block has only sufficient space between its lugs and its opposite lower portion to allow it to play freely up and down the incline of its stop, and would, therefore, work just the same upon its stop without the upper ledge as it would with it. It will even be noticed that the portion of the stop below the lugs is rounded and adapted to co-act with the lugs upon a single inclined or lower ledge and independent of an upper ledge. This fact is fully demonstrated by operating defendants' catch-block upon the cam plate, upon which there is no upper ledge. Thus, the stop of Strickler is, and may be, a differently constructed device from that of Boyd, and such a construction as leaves entirely out a leading essential *elementenu [265 merated in the second claim of the Boyd patent. "A reference to figure 2 of the Strickler patent clearly shows that his catch-block was adapted to be governed by the lower edge entirely, not to encounter the upper ledge of the stop at all, and this more fully confirms me in the opinion that the Strickler stop is an entirely different device in principle and operation from that of Boyd with its upper lugs h1. "I further find the Boyd catch-block to be substantially different in the fact of the largely increased space between its lugs and base, rendered necessary in order to enable it to engage lugs h, which are considerably higher up from lugs h3, in order to enable said catch-block to remain at its extreme height until it encounters stops h3, at either end of the device, it being the operation of the Boyd machine not to stop the carrier centrally to the stop h, but at either end of it at stop h. It is obvious that Boyd's catch-block could not be made operative upon a single ledge as can that of Strickler's; but, on the other hand, it is adapted to such a stop specifically as Boyd shows in all of his figures in which it is shown, four in number, to wit, in figures 2, 3, 5, and 6 of his drawings; and no modification of the stop is shown or described further than as seen in these four fig |