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several grantees of Brantley and the Hous- could, it would not inure to the benefit of tons built and maintained sawmills upon these defendants, or their ancestors, nor extheir portions for many years, and these cuse them in not propounding their claim grantees are the predecessors in title of the

Procuring such quitclaim deed is complainants, and their possession inures to explainable as the act of any prudent man, the benefit of the complainants.

especially when they were procured for a No claim is asserted by the defendants, mere nominal consideration. or any of them, until 1916, when the suits It is my opinion, therefore, that the comfor partition by two of them were filed. The plainants have established their case to the testimony proves that the ancestor of two relief sought, not only because they claim of the defendants did business in Jackson- through the deed of the widow to David ville in the '50's, and the ancestors of the Brown, but also because under the evidence other defendants lived their lives in this the defendants, had their ancestors been tenstate and in the city of Jacksonville. It ants in common with the widow, are estopseems to me inequitable that the defendants ped at this late day from asserting their should be allowed to sit quietly by until the claims. lands in controversy should increase in val- [5] I now come to consider the elaims of ue from $330 in 1818, and $700 in 1836, un- the defendants to the filled-in lands below til 1916, when the partition suits were first high-water mark. Prior to the passage of brought, and the property had increased in the Riparian Act of 1921, the state of Florvalue to many millions of dollars, with thou- ida had title to all lands abutting on navisands of people having built homes and busi- gable streams, between high-water mars ness places upon portions of the grant, and and the channel, and the abutting owner of then come and say, “We are cotenants and the uplands above high-water mark did not want our portions."

acquire title to any lands which might have [4] It will not do for defendants to rely been filled in; his right being only the riupon the principle that the possession of parian right of such owner at common law. one cotenant is the possession of all. As I The first Riparian Act of 1856 was deunderstand the law, this rule applies in all clared by the Supreme Court of the state to cases except where the possession of the co- vest no right in such owner, because it aptenant is such as to amount to an ouster; plied only to such owners as held title to and this ouster results where one cotenant low-water mark. So in 1921 the Legisladeeds the entire property to a stranger, and ture passed chapter 8537 to cure this defect that stranger takes possession under his in the act of 1856. The defendants rely deed to the entire tract, claiming sole owner- upon this last act as the basis of their title. ship. In the present case that ouster took As I understand their claim, it is that they place in 1838, during the life of the ances- were cotenants of the abutting lands in 1856, tors of the defendants, and continued dur- and this last act vests title in such owners ing the time intervening from that time until to the overflowed and filled-in lands. 1921, when the suits in ejectment were Section 3 of the act reads as follows: brought by two of the defendants. What I “This act shall take effect as of the day, to have said in regard to cotenants presuppos- wit, December 27th, 1856, when the act enes that Mrs. Hendricks was a cotenant of titled 'An act to benefit commerce,' was the heirs of E. Hudnall in these lands. adopted by the Legislature of Florida, and

If it was ganancial property, the heirs, shall be continuously effective thence forunder the Spanish law, had inter- ward and hereafter; and hereby vests in the est until the value of the gananciales had riparian proprietors and their grantees and been ascertained after the payment of the successors, in right, the title, right and indebts, and this is not shown to have ever terest given under the provisions of this been done in this case, although some testi- act." mony is produced of family talks overheard. The first section of the act, after stating Nor does the fact that Brantley, in 1851, the causes moving the Legislature to pass it, procured quitclaim deeds from three of the states that the state "divests itself of all Hudnall heirs, help the claims of these de- right, title and interest to all lands covered fendants. There is no testimony showing by water lying in front of any tract of land why this was done, but it may be presumed owned by the United States or any person, that at that time there was some talk on natural or artificial

lying upon the subject. Such action by the grantee any navigable stream

as far as to was not and cannot be taken as an acknowl- the edge of the channel, and hereby vests the edgment of such claim, and, even if it full title to the same

in and to


3 F.(20) 846 the riparian proprietors, giving them the At Law. Action by Baldomero Atianza full right and privilege,” etc. (to build against the United States Shipping Board docks, fill in land and erect buildings, etc.). Emergency Fleet Corporation and the Tam

The court will, in construing an act of the pa Interocean Steamship Company. On law-making power, when the words of the motion to remand to state court. Granted. act are of doubtful import, seek to ascer- See, also, 299 F. 975. tain the intent of the Legislature in pass- Charles H. Kriger, of Brooklyn, N. Y., ing same, the object to be attained, or the for plaintiff. evils to be remedied. Applying these rules Ralph C. Greene, U. S. Atty., of Brookto the construction of this act, the intent of lyn, N. Y. (Edgar G. Wandless, of New the Legislature is plain. It was to vest in York City, of counsel), for defendant Unitthe riparian proprietors the right to fill in, ed States Shipping Board Emergency Fleet bulkhead, and build wharves and docks up- Corporation. on, the lands lying between high-water mark

Nathan A. Smyth, of New York City, for and the channel of the stream, and when defendant Tampa Interocean S. S. Co. said submerged lands were bulkheaded and filled in, to vest full title to same.

And sec

GARVIN, District Judge. This is a motion 3 must be given such construction as

tion by the plaintiff, who appears specially will carry out this object and intent. By for the purposes of this motion only, to regiving it this construction, the defendants, mand this action to the Supreme Court, even though they, or their ancestors, were

County of Richmond. The suit was comcotenants in 1856, would: not acquire any menced in the Supreme Court of the State title to those submerged lands, which had of New York, County of Richmond, by the been bulkheaded and filled in, as of the date service of a summons and complaint on of the suits in ejectment. I am of opin- July 14, 1924. On August 4th defendants ion, therefore, that the complainants have caused it to be removed from the New York sustained their rights to the submerged Supreme Court to this court. lands, bulkheaded and filled in.

The action is brought pursuant to section The defendants renew the contention as to the right of the equity court to retain this (Comp. St. Ann. Supp. 1923, § 8337a),

33 of the Merchant Marine Act of 1920 cause and grant the relief prayed in the which act provides in part that all statutes bill. Those questions are fully covered in of the United States modifying or extendthe opinion filed by Judge Clayton in this ing the common-law right or remedy in cascase, reported in 283 F. 150, and I see no reason to dissent from the conclusions there shall apply to cases such as the action at

es of personal injury to railway employees reached. The defendants in their answer ask for flict of authorities with regard to the prop

bar. There is, indeed, an unfortunate conpartition. This right has not been sustain

er forum in which an action brought pursued, and such relief will be denied. The tes

ant to this section should be tried. timony is so voluminous that I have not at

This court held that an action brought in tempted any discussion of same, but have

the state court, under this section, to recovmerely stated my conclusions therefrom.

er for personal injuries, removed to this A decree will be entered, finding the equi- court, would not be remanded to the state ties with the complainants, and granting the court. Malia v. Southern Pacific Co. (derelief prayed in and by the bill of complaint. cided July 26, 1923) 293 F. 902._This de

cision was upon the authority of Wenzler v. Robin Line S. S. Co. (D. C.) 277 F. 812. Later Judge A. N. Hand, in a case brought

under the same act, to recover for injuries ATIANZA V. UNITED STATES SHIPPING resulting in the death of plaintiff's intestate, BOARD EMERGENCY FLEET CORPO.

due to defendants' negligence, disapproved RATION et al.

the reasoning of the latter opinion, and (District Court, E. D. New York. August 26, granted the motion to remand. Beer, as 1924.)

Administratrix, etc., v. Clyde Steamship Co. Removal of causes On 3-Action at law for in- (S. D. N. Y. December 3, 1923) 300 F. 561.

jury to seaman, under Merchant Marine Act, That case has been followed in this district held not removable.

in an action for injuries resulting in death. An action at law for injury to a seaman; Reyes, as Administrator, etc., v. U. S. S. brought under Merchant Marine Act, & 33 (Comp. St. Ann. Supp. 1923, § 8337a), in a

B. E. F. C. (decided February 13, 1924) state court, is not removable.

299 F. 957. The Malia decision, supra, was


7 (ed) 847

made without discussion of the law and sole- HOUGH, Circuit Judge. The action is ly upon the Wenzler Case, supra, in order brought on a technical trade-mark. It is that there might be harmony of authority between residents of the same state. JuThe decision in the Beer Case, supra, in risdiction is derived solely from the act of this circuit, now permits this court to fol- registration. What was registered was the low what it regards as the more persuasive word "Mirrolike," printed in a peculiar reasoning, that of Judge A. N. Hand. Be- manner and surrounded by an ornamental cause of the latter decision, the court is of device. Such trade-mark plaintiff's assignthe opinion that it should not follow the or said had been "adopted and used . • • case of Lorang v. Alaska S. S. Co. (D. C.) for furniture, floor, and automobile polish." 298 F. 547, cited by defendants.

Defendant has confessedly used the word This determination does not conflict with “Mirrolac" as the name for a substance Caceres v. U. S. S. B. E. F. Corp. et al., 299 which it is said “stains and varnishes in one F. 968, and Villard v. U. S. S. B. E. F. operation." It further asserts that MirroCorp. et al., 1 F.(20) 570, both decided in lac, under favorable conditions, will "dry this district, May 29, 1924, and followed hard overnight with a high gloss.” by this court when, on June 5, 1924, it dis. [1] I have no doubt that the two words missed a prior action brought by plaintiff are so much alike, and their use so similar, against the defendants herein. In none of that, if plaintiff's trade-mark is valid, dethose cases did plaintiff move to remand, fendant has infringed by using a substanas in the instant case. Whatever may be tial portion of it. It is argued that, since the conflict of authorities, it appears to me defendant uses nothing but the word, and that the court is bound to follow the con- in respect of design, style of printing, color, struction of the acts in question which has etc.. there is no similarity between what been adopted in this circuit.

plaintiff puts out and what defendant has Motion granted.

produced, this case is within Hutchinson v. Loewy, 163 F. 42, 90 C. C. A. 1. I do not think it necessary to pass on this point, for I shall assume, without holding, that plain

tiff's trade-mark is of such a nature that it MIRROLIKE MFG. Co., Inc., v. DEVOE & can be infringed by the use of a word simiRAYNOLDS CO., Inc.

lar (within the cases) to Mirrolike, and . (District Court, s. D. New York. September that such infringement will exist irrespec24, 1923.)

tive of style of print, context, color scheme, 1. Trade-marks and trade-names and unfair and other extraneous or surrounding circompetition ww59(5)—“Mirrolike," if valid cumstances. This is certainly all that plaintrade-mark for polish, was infringed by use of tiff could ask. word “Mirrolac."

[2] Having made this assumption, I am “Mirrolike,” if valid as trade-mark for fur- of opinion that Mirrolike. as applied to a niture, floor, and automobile polish, was infringed by use of word “Mirrolac."

polish, is altogether too descriptive to be a

valid trade-mark. On this fundamental 2. Trade-marks and trade names and unfair competition 3(4)_“Mirrolike." as applied finding there is little, if anything, to add to to polish, held too descriptive to be valid what I was privileged to say for the court trade-mark.

in Hercules, etc., Co. v. Newton (C. C. A.) Word “Mirrolike," as applied to a furni- 266 F. 169. Mirrolike is more than suggesture, floor, and automobile polish, is too de- tive: it is in my indor

tive; it is in my judgment "merely descripscriptive to be a valid trade-mark.

tive." Therefore under the statute it is

bad. In Equity. Suit by the Mirrolike Manu

Plaintiff seems to me to be impaled on facturing Company, Inc., against Devoe &

the horns of a dilemma; if it asserts that its Raynolds Company, Inc. On plaintiff's mo

trade-mark is good, because Mirrolike is tion for preliminary injunction, and on de

peculiarly printed and surrounded by a diafendant's motion to dismiss bill. Plain

gram or ornamental scroll, then what the tiff's motion denied, and defendant's motion

defendant has used does not infringe. But granted.

if it asserts (as it does) that its trade-mark Decree affirmed 3 F.(20) 847.

is essentially the made-up word "MirroJames L. Steuart and Frank S. Moore, like," its trade-mark is bad, because deboth of New York City, for plaintiff. scriptive only.

William D. Gaillard and C. A. L. Massie, Plaintiff's motion is denied, and defendboth of New York City, for defendant. ant's is granted.


8 F.(20) 847 MIRROLIKE MFG. CO., Inc., Plaintiff Appel. man v. MacKenzie, 138 U. S. 252, 11 S. Ct. lant, v. DEVOE & RAYNOLDS CO., Inc.,

334, 34 L. Ed. 923, and Crown Co. v. Nye Respondent Appellee. .

Tool Works, 261 U. S. 24, 43 S. Ct. 254, (Circuit Court of Appeals, Second Circuit.

67 L. Ed. 516, the title to the patent in suit, November 3, 1924.)

No. 879,532, is in the plaintiff, and that it No. 51.

may maintain this suit alone.

It is conceded that the defendant has been Appeal from the District Court of the

and is engaged in selling vacuum tubes, United States for the Southern District of

O2 embodying the invention of the patent New York.

manufactured by Westinghouse Electric & James L. Steuart and Frank S. Moore, Manufacturing Company and by Westingboth of New York City, for appellant. bothco! New York City, for, appellant.

house Lamp Company. The question of William D. Gaillard and C. A. L. Massie, defendant's infringement or noninfringeboth of New York City, for appellee. ment depends upon whether or not those

Before ROGERS and MANTON. Circuit manufacturers were licensees under the patJudges. and LEARNED HAND. District ent. While the method employed in licensJudge.

ing the Westinghouse Electric & Manufac

turing Company was unusual, I think the PER CURIAM. Decree (3 F.[20] 846) rights of that company under the patent affirmed.

sufficiently established by the evidence at least to prevent the issuance of a preliminary injunction based upon want of rights


With the exception of a few shares, all EGRAPH CO. v. RADIO CORPORATION the capital stock of the Westinghouse I OF AMERICA.

Company is owned by the Westinghouse

Electric & Manufacturing Company, but (District Court, D. Delaware. February 4, that fact is not in itself sufficient to cause 1925.)

the separate corporate entities to be here Patents 211 (1) - License to corporation considered as merged. I find in the record held not to extend to subsidiary companies. no valid evidence whatever that the West

A license to a corporation to manufacture inghouse Lamp Company has been licensed. under a patent held not to extend to subsidiary It is true that, in several affidavits filed on or stock-controlled companies.

behalf of the defendant, officers of the comIn Equity. Suit by the De Forest Radio pa

panies interested in the several agreements Telephone & Telegraph Company against say that it was their intention that the right the Radio Corporation of America. On mo

to manufacture under the patent should be

acquired by the controlled companies of tion for preliminary injunction. Granted.

the Westinghouse Electric & Manufacturing Thomas G. Haight, of Jersey City, NJ.. Company as well as by that company, and Samuel E. Darby, Jr., of New York City, that ther believed that such intention had and E. Ennalls Berl, of Wilmington, Delo, been carried into effect by the several docufor plaintiff.

ments and agreements. But those docuSheffield & Betts, of New York City, and ments are. in that regard. at least. clear William G. Mahaffy, of Wilmington, Del., and unambiguous. No rights were confor defendant.

ferred by them upon Westinghouse Lamp

Company as such, or upon Westinghouse MORRIS, District Judge. In this suit controlled companies. There is no other of De Forest Radio Telephone & Telegraph evidence in the record sufficient, as I view Company against Radio Corporation of it, to establish a license in the Lamp ComAmerica a motion for preliminary injunc- pany. • tion has been heard upon bill, affidavits, I think the plaintiff has sufficiently met and exhibits. Though it is probably a close the defense of laches. question, I am inclined to think that under I am of opinion that a preliminary inthe agreement of March 16, 1917, and the junction should issue, enjoining the sale by principles of law stated in Littlefield v. the defendant of tubes manufactured by the Perry, 21 Wall. 205, 22 L. Ed. 577, Water- Lamp Company.

AMOTH V, UNITED STATES et al. or decree, unless it is interdicted by a sur(District Court, D. Oregon. January 19,

vival statute of the state; whereas, if the 1925.)

libel is in rem, it does not abate, by reason

of the lien which the law imposes on the No. A-9329.

vessel. Crapo v. Allen, No. 3360, 6 Fed. 1. Admiralty Ow51-When libels in personam Cas. 763; The City of Belfast (D. C.) 135 and in rem abate by death of libelant stated.

F. 208; The Ticeline (D. C.) 208 F. 670; A suit in personam abates on the death of libelant before judgment or decree, unless in- Id., 221 F. 409, 137 C. C. A. 207; The terdicted by a survival statute of the state;

Student (D. C.) 238 F. 936; The Lafaybut, if the libel is in rem, it does not abate ette, 269 F. 917; Hultgren v. Shaver because of the lien on the vessel.

Transportation Co. (unreported), decided 2. Death Om 10—Suit held to abate on death in this court without opinion. of libelant.

[2] Under the provisions of the statutes Or. L. § 380, providing for survival where of Oregon, a cause of action arising out the death of a person is caused by the wrong

of an injury to the person dies with the ful act or omission by another, does not apply to an action in personam, for personal injury, person of either party, except as provided where the death of the injured person resulted in sections 378–380, Oregon Laws. Secfrom a wholly unrelated cause.

tion 380 provides for survival, where the

death of a person is caused by the wrong. In Admiralty. Suit by Ralph Amoth ful act or omission of another. The presagainst the United States and the Portland

ent is not such a case. The wrongful act Stevedoring Company. On motion of re- complained of was not the cause of libelspondents for abatement of the suit. ant's death. Indeed, he had in large measGranted.

ure recovered from the injuries of which Wm. P. Lord, of Portland, Or., for libel- complaint was made. His death was subant.

sequently caused through an entirely differWood, Montague & Matthiessen and Gun- ent source, unrelated to matters and things ther F. Krause, all of Portland, Or., for the complained of. By section 39, Oregon United States.

Laws, it is further enacted that: F. C. McDougal, of Portland, Or., for "An action for a wrong shall not abate respondent Portland Stevedoring Co. by the death of any party, after a verdict

has been given therein, but the action shall WOLVERTON, District Judge. Since

proceed thereafter in the same manner as the case was submitted to the court on the in cases where the cause of action survives." evidence, a trial having been had, and be

Thus, by legislative interpretation, it is fore rendition by the court of judgment or assumed that, by the previous law, the aedecree upon the merits, the libelant has tion did abate by the death of the party indied, having been killed in an automobile jured. I come the more readily to this de accident. The libel is in personam, not in cision because of the fact that, prior to the rem. Based upon these premises, respond- time the death of libelant was announced, ents have interposed a motion for abate- the court had come to the conclusion that ment of the action. The question is: Did libelant was not entitled to recover, and the action abate by the death of libelant? had the opinion practically prepared.

[1] The rule seems to be that the cause, The motion to abate the action herein where the libel is in personam, abates by will be sustained. the death of the libelant before judgment So ordered.

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