several grantees of Brantley and the Houstons built and maintained sawmills upon their portions for many years, and these grantees are the predecessors in title of the complainants, and their possession inures to the benefit of the complainants. No claim is asserted by the defendants, or any of them, until 1916, when the suits for partition by two of them were filed. The testimony proves that the ancestor of two of the defendants did business in Jacksonville in the '50's, and the ancestors of the other defendants lived their lives in this state and in the city of Jacksonville. It seems to me inequitable that the defendants should be allowed to sit quietly by until the lands in controversy should increase in value from $330 in 1818, and $700 in 1836, until 1916, when the partition suits were first brought, and the property had increased in value to many millions of dollars, with thousands of people having built homes and business places upon portions of the grant, and then come and say, "We are cotenants and want our portions." [4] It will not do for defendants to rely upon the principle that the possession of one cotenant is the possession of all. As I understand the law, this rule applies in all cases except where the possession of the cotenant is such as to amount to an ouster; and this ouster results where one cotenant deeds the entire property to a stranger, and that stranger takes possession under his deed to the entire tract, claiming sole ownership. In the present case that ouster took place in 1838, during the life of the ancestors of the defendants, and continued during the time intervening from that time until 1921, when the suits in ejectment were brought by two of the defendants. What I have said in regard to cotenants presupposes that Mrs. Hendricks was a cotenant of the heirs of E. Hudnall in these lands. If it was ganancial property, the heirs, under the Spanish law, had no interest until the value of the gananciales had been ascertained after the payment of the debts, and this is not shown to have ever been done in this case, although some testimony is produced of family talks overheard. Nor does the fact that Brantley, in 1851, procured quitclaim deeds from three of the Hudnall heirs, help the claims of these defendants. There is no testimony showing why this was done, but it may be presumed that at that time there was some talk on the subject. Such action by the grantee was not and cannot be taken as an acknowledgment of such claim, and, even if it could, it would not inure to the benefit of these defendants, or their ancestors, nor excuse them in not propounding their claim sooner. Procuring such quitclaim deed is explainable as the act of any prudent man, especially when they were procured for a mere nominal consideration. It is my opinion, therefore, that the complainants have established their case to the relief sought, not only because they claim through the deed of the widow to David Brown, but also because under the evidence the defendants, had their ancestors been tenants in common with the widow, are estopped at this late day from asserting their claims. [5] I now come to consider the elaims of the defendants to the filled-in lands below high-water mark. Prior to the passage of the Riparian Act of 1921, the state of Florida had title to all lands abutting on navigable streams, between high-water mark and the channel, and the abutting owner of the uplands above high-water mark did not acquire title to any lands which might have been filled in; his right being only the riparian right of such owner at common law. The first Riparian Act of 1856 was declared by the Supreme Court of the state to vest no right in such owner, because it applied only to such owners as held title to low-water mark. So in 1921 the Legislature passed chapter 8537 to cure this defect in the act of 1856. The defendants rely upon this last act as the basis of their title. As I understand their claim, it is that they were cotenants of the abutting lands in 1856, and this last act vests title in such owners to the overflowed and filled-in lands. Section 3 of the act reads as follows: "This act shall take effect as of the day, to wit, December 27th, 1856, when the act entitled 'An act to benefit commerce,' was adopted by the Legislature of Florida, and shall be continuously effective thence forward and hereafter; and hereby vests in the riparian proprietors and their grantees and successors, in right, the title, right and interest given under the provisions of this act." The first section of the act, after stating the causes moving the Legislature to pass it, states that the state "divests itself of all right, title and interest to all lands covered by water lying in front of any tract of land owned by the United States or any person, natural or artificial any navigable stream the edge of the channel, and hereby vests the full title to the same in and to • lying upon as far as to At Law. Action by Baldomero Atianza against the United States Shipping Board Emergency Fleet Corporation and the Tampa Interocean Steamship Company. motion to remand to state court. See, also, 299 F. 975. On Granted. Charles H. Kriger, of Brooklyn, N. Y., for plaintiff. Ralph C. Greene, U. S. Atty., of Brooklyn, N. Y. (Edgar G. Wandless, of New York City, of counsel), for defendant United States Shipping Board Emergency Fleet Corporation. 3 F.(2d) 845 the riparian proprietors, giving them the full right and privilege," etc. (to build docks, fill in land and erect buildings, etc.). The court will, in construing an act of the law-making power, when the words of the act are of doubtful import, seek to ascertain the intent of the Legislature in passing same, the object to be attained, or the evils to be remedied. Applying these rules to the construction of this act, the intent of the Legislature is plain. It was to vest in the riparian proprietors the right to fill in, bulkhead, and build wharves and docks upon, the lands lying between high-water mark and the channel of the stream, and when said submerged lands were bulkheaded and filled in, to vest full title to same. And section 3 must be given such construction as will carry out this object and intent. By giving it this construction, the defendants, even though they, or their ancestors, were cotenants in 1856, would: not acquire any title to those submerged lands, which had been bulkheaded and filled in, as of the date of the suits in ejectment. I am of opinion, therefore, that the complainants have sustained their rights to the submerged lands, bulkheaded and filled in. The defendants in their answer ask for partition. This right has not been sustained, and such relief will be denied. The testimony is so voluminous that I have not attempted any discussion of same, but have merely stated my conclusions therefrom. A decree will be entered, finding the equities with the complainants, and granting the relief prayed in and by the bill of complaint. Nathan A. Smyth, of New York City, for defendant Tampa Interocean S. S. Co. GARVIN, District Judge. This is a mofor the purposes of this motion only, to retion by the plaintiff, who appears specially mand this action to the Supreme Court, menced in the Supreme Court of the State County of Richmond. The suit was comof New York, County of Richmond, by the service of a summons and complaint on caused it to be removed from the New York July 14, 1924. On August 4th defendants Supreme Court to this court. The action is brought pursuant to section 33 of the Merchant Marine Act of 1920 (Comp. St. Ann. Supp. 1923, § 8337a), which act provides in part that all statutes ing the common-law right or remedy in cas of the United States modifying or extendshall apply to cases such as the action at es of personal injury to railway employees flict of authorities with regard to the propbar. There is, indeed, an unfortunate coner forum in which an action brought pursuant to this section should be tried. This court held that an action brought in the state court, under this section, to recovcourt, would not be remanded to the state er for personal injuries, removed to this court. Malia v. Southern Pacific Co. (decided July 26, 1923) 293 F. 902. This decision 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 resulting in the death of plaintiff's intestate, due to defendants' negligence, disapproved the reasoning of the latter opinion, and (District Court, E. D. New York. August 26, granted the motion to remand. Beer, as ATIANZA v. UNITED STATES SHIPPING 1924.) Removal of causes ~3—Action at law for injury to seaman, under Merchant Marine Act, held not removable. An action at law for injury to a seaman, brought under Merchant Marine Act, § 33 (Comp. St. Ann. Supp. 1923, § 8337a), in a state court, is not removable. Administratrix, etc., v. Clyde Steamship Co. (S. D. N. Y. December 3, 1923) 300 F. 561. That case has been followed in this district in an action for injuries resulting in death. Reyes, as Administrator, etc., v. U. S. S. B. E. F. C. (decided February 13, 1924) 299 F. 957. The Malia decision, supra, was made without discussion of the law and solely upon the Wenzler Case, supra, in order that there might be harmony of authority. The decision in the Beer Case, supra, in this circuit, now permits this court to follow what it regards as the more persuasive reasoning, that of Judge A. N. Hand. Because of the latter decision, the court is of the opinion that it should not follow the case of Lorang v. Alaska S. S. Co. (D. C.) 298 F. 547, cited by defendants. This determination does not conflict with Caceres v. U. S. S. B. E. F. Corp. et al., 299 F. 968, and Villard v. U. S. S. B. E. F. Corp. et al., 1 F. (2d) 570, both decided in this district, May 29, 1924, and followed by this court when, on June 5, 1924, it dismissed a prior action brought by plaintiff against the defendants herein. In none of those cases did plaintiff move to remand, as in the instant case. Whatever may be the conflict of authorities, it appears to me that the court is bound to follow the construction of the acts in question which has been adopted in this circuit. Motion granted. (135(d)847. It is Ju HOUGH, Circuit Judge. The action is brought on a technical trade-mark. between residents of the same state. risdiction is derived solely from the act of registration. What was registered was the word "Mirrolike," printed in a peculiar manner and surrounded by an ornamental device. Such trade-mark plaintiff's assignor said had been "adopted and used for furniture, floor, and automobile polish.” Defendant has confessedly used the word "Mirrolac" as the name for a substance which it is said "stains and varnishes in one operation." It further asserts that Mirrolac, under favorable conditions, will "dry hard overnight with a high gloss." [1] I have no doubt that the two words are so much alike, and their use so similar, that, if plaintiff's trade-mark is valid, defendant has infringed by using a substantial portion of it. It is argued that, since defendant uses nothing but the word, and in respect of design, style of printing, color, etc., there is no similarity between what plaintiff puts out and what defendant has 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 3 F (d) 847. 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 simi RAYNOLDS CO., Inc. (District Court, S. D. New York. September 24, 1923.) 1. Trade-marks and trade-names and unfair competition 59 (5)—“Mirrolike," if valid trade-mark for polish, was infringed by use of word “Mirrolac.” "Mirrolike," if valid as trade-mark for furniture, floor, and automobile polish, was infringed by use of word "Mirrolac." 2. Trade-marks and trade-names and unfair competition 3(4)-"Mirrolike," as applied to polish, held too descriptive to be valid trade-mark. Word "Mirrolike," as applied to a furniture, floor, and automobile polish, is too descriptive to be a valid trade-mark. In Equity. Suit by the Mirrolike Manufacturing Company, Inc., against Devoe & Raynolds Company, Inc. On plaintiff's motion for preliminary injunction, and on de fendant's motion to dismiss bill. Plaintiff's motion denied, and defendant's motion granted. Decree affirmed 3 F. (2d) 847. James L. Steuart and Frank S. Moore, both of New York City, for plaintiff. William D. Gaillard and C. A. L. Massie, both of New York City, for defendant. lar (within the cases) to Mirrolike, and that such infringement will exist irrespective of style of print, context, color scheme, and other extraneous or surrounding circumstances. This is certainly all that plaintiff could ask. [2] Having made this assumption, I am of opinion that Mirrolike, as applied to a polish, is altogether too descriptive to be a valid trade-mark. On this fundamental finding there is little, if anything, to add to what I was privileged to say for the court in Hercules, etc., Co. v. Newton (C. C. A.) 266 F. 169. Mirrolike is more than suggestive; it is in my judgment "merely descriptive." Therefore under the statute it is bad. Plaintiff seems to me to be impaled on the horns of a dilemma; if it asserts that its trade-mark is good, because Mirrolike is peculiarly printed and surrounded by a dia gram or ornamental scroll, then what the defendant has used does not infringe. But if it asserts (as it does) that its trade-mark is essentially the made-up word "Mirrolike," its trade-mark is bad, because descriptive only. Plaintiff's motion is denied, and defendant's is granted. 8 F.(2d) 847 MIRROLIKE MFG. CO., Inc., Plaintiff Appellant, v. DEVOE & RAYNOLDS CO., Inc., Respondent Appellee. (Circuit Court of Appeals, Second Circuit. November 3, 1924.) No. 51. man v. MacKenzie, 138 U. S. 252, 11 S. Ct. 334, 34 L. Ed. 923, and Crown Co. v. Nye Tool Works, 261 U. S. 24, 43 S. Ct. 254, 67 L. Ed. 516, the title to the patent in suit, No. 879,532, is in the plaintiff, and that it 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 James L. Steuart and Frank S. Moore, both of New York City, for appellant. William D. Gaillard and C. A. L. Massie, both of New York City, for appellee. Before ROGERS and MANTON, Circuit Judges, and LEARNED HAND, District Judge. embodying the invention of the patent manufactured by Westinghouse Electric & Manufacturing Company and by Westinghouse Lamp Company. The question of defendant's infringement or noninfringement depends upon whether or not those manufacturers were licensees under the patent. While the method employed in licensing the Westinghouse Electric & Manufacturing Company was unusual, I think the PER CURIAM. Decree (3 F.[2d] 846) rights of that company under the patent affirmed. DE FOREST RADIO TELEPHONE & TEL- OF AMERICA. sufficiently established by the evidence at least to prevent the issuance of a preliminary injunction based upon want of rights in that company. With the exception of a few shares, all the capital stock of the Westinghouse Lamp 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.) Patents 211(1) License to corporation In Equity. Suit by the De Forest Radio Telephone & Telegraph Company against the Radio Corporation of America. On motion for preliminary injunction. Granted. Thomas G. Haight, of Jersey City, N. J., Samuel E. Darby, Jr., of New York City, and E. Ennalls Berl, of Wilmington, Del., for plaintiff. Sheffield & Betts, of New York City, and William G. Mahaffy, of Wilmington, Del., the separate corporate entities to be here considered as merged. I find in the record no valid evidence whatever that the Westinghouse Lamp Company has been licensed. It is true that, in several affidavits filed on behalf of the defendant, officers of the companies interested in the several agreements say that it was their intention that the right to manufacture under the patent should be acquired by the controlled companies of the Westinghouse Electric & Manufacturing Company as well as by that company, and that they believed that such intention had been carried into effect by the several documents and agreements. But those documents are, in that regard, at least, clear and unambiguous. No rights were conferred by them upon Westinghouse Lamp Company as such, or upon Westinghouse controlled companies. There is no other evidence in the record sufficient, as I view it, to establish a license in the Lamp Company. I think the plaintiff has sufficiently met the defense of laches. I am of opinion that a preliminary injunction should issue, enjoining the sale by the defendant of tubes manufactured by the Lamp Company. AMOTH v. UNITED STATES et al. (District Court, D. Oregon. January 19, 1925.) No. A-9329. 1. Admiralty 51-When libels In personam and in rem abate by death of libelant stated. A suit in personam abates on the death of libelant before judgment or decree, unless interdicted by a survival statute of the state; but, if the libel is in rem, it does not abate because of the lien on the vessel. 2. Death10-Suit held to abate on death of libelant. Or. L. § 380, providing for survival where the death of a person is caused by the wrongful act or omission by another, does not apply to an action in personam, for personal injury, where the death of the injured person resulted from a wholly unrelated cause. In Admiralty. Suit by Ralph Amoth against the United States and the Portland Stevedoring Company. On motion of respondents for abatement of the suit. Granted. or decree, unless it is interdicted by a survival statute of the state; whereas, if the libel is in rem, it does not abate, by reason of the lien which the law imposes on the vessel. Crapo v. Allen, No. 3360, 6 Fed. Cas. 763; The City of Belfast (D. C.) 135 F. 208; The Ticeline (D. C.) 208 F. 670; Id., 221 F. 409, 137 C. C. A. 207; The Student (D. C.) 238 F. 936; The Lafayette, 269 F. 917; Hultgren v. Shaver Transportation Co. (unreported), decided in this court without opinion. [2] Under the provisions of the statutes of Oregon, a cause of action arising out of an injury to the person dies with the person of either party, except as provided in sections 378-380, Oregon Laws. Section 380 provides for survival, where the death of a person is caused by the wrongful act or omission of another. The present is not such a case. The wrongful act complained of was not the cause of libelant's death. Indeed, he had in large measure recovered from the injuries of which Wm. P. Lord, of Portland, Or., for libel- complaint was made. His death was sub ant. Wood, Montague & Matthiessen and Gunther F. Krause, all of Portland, Or., for the United States. F. C. McDougal, of Portland, Or., for respondent Portland Stevedoring Co. WOLVERTON, District Judge. Since the case was submitted to the court on the evidence, a trial having been had, and before rendition by the court of judgment or decree upon the merits, the libelant has died, having been killed in an automobile accident. The libel is in personam, not in rem. Based upon these premises, respondents have interposed a motion for abatement of the action. The question is: Did the action abate by the death of libelant? [1] The rule seems to be that the cause, where the libel is in personam, abates by the death of the libelant before judgment sequently caused through an entirely different source, unrelated to matters and things complained of. By section 39, Oregon Laws, it is further enacted that: "An action for a wrong shall not abate by the death of any party, after a verdict has been given therein, but the action shall proceed thereafter in the same manner as in cases where the cause of action survives." Thus, by legislative interpretation, it is assumed that, by the previous law, the action did abate by the death of the party injured. I come the more readily to this decision because of the fact that, prior to the time the death of libelant was announced, the court had come to the conclusion that libelant was not entitled to recover, and had the opinion practically prepared. The motion to abate the action herein will be sustained. So ordered. |