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action to haul her sagging tows to the westward when she first saw the schooner.
As to the first question. Despite the array of witnesses from the tows, we are satisfied that the schooner did not make the extraordinary and unaccountable change of course attributed to her across the bow of the Boswell, but that she maintained her course until the converzing side of the cul-de-sac forced her to change it in order to avoid the sagging barges.
Whatever errors of navigation were committed when the bottom of the pocket was reached and the four colliding vessels were in close proximity were in extremis as the district judge finds, and, the extremity not having been produced by either of the four, they should not be held. On the whole case we concur with the district judge.
The decree is affirmed, with interest and a single bill of costs against the Boswell.
TOWNSEND, Circuit Judge, heard argument, participated in consultation, and voted to affirm, but did not see the opinion.
GREAT SOUTHERN GAS & OIL CO. v. LOGAN NATURAL GAS &
(Circuit Court of Appeals, Sixth Circuit. May 25, 1907.)
CONFUSION OF GOODS-DAMAGES-ACCOUNTING FOR TRESPASS-MINGLING OF
Defendant wrongfully entered upon land on which complainant held a valid oil and gas lease, and drilled a well from which it continued to take and market gas pending suit by complainant to establish its rights. Defendant conducted the gas into a pipe line in which gas from 60 wells was mingled, taking no measures to determine the quantity or value of the gas so wrongfully taken. Held, that, on an accounting therefor, conceding that defendant's claim of right was made in good faith, it was bound to fully compensate complainant for its loss, and that in ascertaining such compensation every reasonable doubt should be resolved against it; that under the evidence and the peculiar circumstances of the case complainant was entitled to recover one-sixtieth part of the amount realized by defendant from the entire product of the 60 wells.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Confusion of
F. A. Durban and Wm. B. Sanders, for appellant.
PER CURIAM. This case was here upon the questions arising over conflicting leases of the oil and gas rights in the same land. The facts are fully stated in our former opinion. 126 Fed. 623, 61 C. C. A. 359. Shortly after the litigation began defendants struck gas, and they continued to take and market the gas until the well was exhausted. The court below referred the case to a special master for an accounting as to the value of the gas. It appeared that the gas from the well was conducted to a pipe line, together with the gas from some 60 wells owned by the defendant, and that no serious effort was made to measure the contribution of this well to the pipe line. Upon the theory of confusion of goods by a trespasser, the master charged the defendant with the gross receipts for the entire product of its 60 wells aggregating over $1,000,000. Upon exceptions this report was set aside, and the value of the gas fixed by the Circuit Judge at $10,000, that being the estimated market value of a gas well of the approximate productiveness of this well in the Sugar Grove'field. The plaintiff assigned error to this decree. That it was a trespasser ab initio must be now conceded. That it continued to use this gas during the litigation which denied its title, and that it did this taking no care to determine the amount of the gas or its value thus wrongfully taken, must be also conceded. Conceding that it was a good faith claimant and that the litigation was not flimsy, but bona fide, it nevertheless remains that it must fully compensate the plaintiff. Powers v. U. S., 119 Fed. 562, 56 C. C. A. 128; Jegon v. Vivian, L. R. 6 Ch. App. 742, 1761; Whitney v. Huntington, 37 Minn. 197, 33 N. W. 561; Ross v. Scott, 15 Lea (Tenn.) 479. Having taken no step by which it can account for the property of plaintiff, it must submit to every inconvenience in ascertaining that compensation and all reasonable doubts which arise in that accounting. Wetherbee v. Green, 22 Mich. 311, y Am. Rep. 653. The reasonable market value of a gas well does not, under the peculiar circumstances, compensate plaintiff. That would be to give it only the value of the gas in the ground. That might be adequate but for the fact that plaintiff had its own pipe line, and could therefore market gas from this well with little addition to the cost of conducting its business.
This well is also shown to have been a larger producer than the average well in this field. It also appears that all of the wells contributing to defendants' pipe line did not contribute during the entire life of this well, and, further, that the appellant was obliged to buy gas of appellee to meet its own requirements. In view of all of the facts, we conclude that an aliquot part of the gross product of 60 wells will not be an unjust compensation. Cooley on Torts, 53; Sutherland on Damages, § 101; Moore v. Bowmen, 47 N. H. 494, 500. The gross product was marketed for $1,003,813. One-sixtieth part of this is $16,730.21. The decree will be therefore modified so as to fix the damages at that sum, with interest from the date of our former decree affirming the decree of the Circuit Court, and costs.
BÓNG v. ALFRED S. CAMPBELL ART CO.
(Circuit Court of Appeals, Second Circuit. May 30, 1907.)
COPYRIGHT-PAINTING-ASSIGNMENT OF RIGHT.
Where the author or owner of a painting is a citizen or subject of a foreign nation having no reciprocal copyright relations with the United States, and therefore not entitled to copyright such painting under Rev. St. § 4952 [U. S. Comp. St. 1901, p. 3406], as amended by Act March 3, 1891, c. 565, 26 Stat. 1110 [U. S. Comp. St. 1901, p. 3417], he cannot, while
retaining the painting itself, convey such right to another. In Error to the Circuit Court of the United States for the Southern District of New York.
M. J. Kohler, for plaintiff in error.
, for defendant in error. Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.
PER CURIAM. This is an action under the copyright statutes to recover penalties and forfeiture for infringement of alleged copyright of a painting. Verdict in favor of defendant was directed by the court upon the pleadings and opening. It thereby appeared that one Hernandez was the author of the painting, and that he was and always had been a citizen of Peru. The plaintiff is a citizen and subject of Germany. Section 13 of the act of March 3, 1891, 26 Stat. 1110, c. 565 [U. S. Comp. St. 1901, p. 3417], amending Rev. St. § 4952 [U. S. Comp. St. 1901, p. 3406], provides that the copyright act shall apply only to a citizen or subject of a foreign state or nation when such foreign state or nation permits to citizens of the United States the benefit of copyright on substantially the same basis as its own citizens, or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States of America may at its pleasure become a party to such agreement. The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation made from time to time. No such proclamation has ever been made as to Peru. It is conceded that Germany is within the terms of the section. Prior to November, 1902, Hernandez executed documents purporting to convey to the plaintiff the right to enter the painting in his (plaintiff's) own name as proprietor for copyright protection in the United States, and also the exclusive right of reproduction in colors, and also the exclusive right of engraving, etching, and lithography in black and in colors, reserving, however, the right of photography and reproduction by all photographic monochrome processes. Thereafter plaintiff took the usual steps to secure copyright of the painting. For aught that appears the painting still belongs to Hernandez.
The peculiar form of assignment of rights of reproduction, conveying part and reserving part, presents an interesting question which need not be here discussed. The concessions as to citizenship are sufficient to dispose of the case.
It has been held that when a person is the author or proprietor of a painting, and has the right under our statute to secure a copyright on the same, he may separate the two, selling the right to take out a copyright to one person, while he himself retains the original painting, or sells it, without copyright privileges, to another person. We know of no authority which holds that when a person is the author or owner of a painting, but has no right under our statutes to secure a copyright here, he may nevertheless, while retaining the painting, convey to some one else what he does not own himself, viz., the right to take out copyright. In the absence of controlling authority we are unwilling so to hold, believing that such a construction would be judicial legislation defeating the very object which Congress, by the thirteenth section above cited, sought to obtain.
The judgment is affirmed.
UNITED STATES ex rel. SCHAUFFLER V. FIDELITY & DEPOSIT
CO. OF MARYLAND.
(Circuit Court of Appeals, Second Circuit. May 30, 1907.)
APPEAL AND ERROR-TIME OF TAKING PROCEEDINGS-EFFECT OF MOTION TO VA
The six months allowed by statute for suing out a writ of error for the review of a judgment by the Circuit Court of Appeals cannot be extended by a motion in the trial court to vacate the judgment, filed after such time has expired, which brings nothing new into the record, but is in effect merely a motion to reargue the question whether the judgment was warranted by the record.
In Error to the District Court of the United States for the Southern District of New York.
See 147 Fed. 228.
LACOMBE, Circuit Judge. The action was brought by the trustee in bankruptcy of George W. Mosely to recover upon a bond given by defendant for the faithful performance of his duties by a former trustee of the same estate, who was alleged to have defaulted.
Issue being joined in the District Court, an order was made on March 17, 1903, sending the cause to a referee to take testimony and report. Subsequently, and while the hearing was still proceeding before the referee, such order was amended (June 21, 1904) so as to direct the referee to hear and determine the issues. Thereafter, the referee having rendered his decision in favor of defendant, said decision with the pleadings, orders, testimony, and exhibits came before the District Court, which on November 1, 1905, directed that judgment be entered in favor of defendant, dismissing the complaint on the merits with costs. Judgment was formally entered November 8, 1905. Plaintiff took an appeal from such judgment to the Circuit Court of Appeals, which was dismissed; but he applied for no writ of error within the six months limited by statute for proceedings to review a judgment of the District Court in the Court of Appeals. About four weeks subsequent to the expiration of the six months he moved in the District Court for an order vacating the judgment, on the ground that it was null and void by reason of the fact that said court was without jurisdiction, authority, or power to direct the entry of the same, or to amend the order of reference without relator's consent, and for the further reason that said judgment was irregularly entered. The motion was denied, and this writ of error was sued out to review such denial.
Before disposing of the case, it may be noted that we do not express any opinion upon the question whether or not a trustee in bankruptcy is "an officer of the United States authorized by law to sue” in the District Court, under the fourth paragraph of section 563, Rev. St. [U. S. Comp. St. 1901, p. 456]. The point made by plaintiff is that there was no jurisdiction to order a reference to hear and determine without plaintiff's consent or to enter judgment upon a referee's report made in conformity with such order. To reverse or vacate a judgment upon such theory, it would, of course, have to be shown that the order of reference complained of was not consented to or acquiesced in. No facts are set forth in the moving papers which were not before the District Court when judgment was ordered and entered. Every proposition which is now advanced could have been fully presented upon a writ of error to review the judgment itself.
We are of the opinion that the case is within the principle laid down in Conboy v. First Nat. Bank of Jersey City, 203 U. S. 141, 27 Sup. Ct. 50, 51 L. Ed. 128. In substance and effect the motion was an application to the District Court to reargue the question whether upon the record before it in November, 1905, judgment should or should not have been entered. Having allowed the time to review the decision embodied in that judgment to expire, plaintiff cannot, by any motion for reargument or similar relief, extend such time beyond the limit fixed by statute.
The order is affirmed.
ERIE R. CO. v. KANE.
(Circuit Court of Appeals, Sixth Circuit. June 26, 1907.)
MASTER AND SERVANT-DEATH OF SERVANT-FELLOW SERVANT ACT-CONSTI
The Ohio fellow servant act of April 2, 1890 (87 Ohio Laws, p. 150), providing that, in an action for injuries to a railroad employé, it shall be no defense that the injury was caused by the negligence or default of a fellow servant, is a valid law under the Constitution of Ohio, and is not repugnant to the fourteenth amendment of the federal Constitution.
In Error to the Circuit Court of the United States for the Northern District of Ohio.
For former opinion, see 142 Fed. 682,