M'BRIDE
tI.
BOARD OF COMMISSIONERS.
17
McBRIDE ". BOARD OF COMMISSIONERS OF PIERCE CoUNTY. {Circuit Court, D. Washington, W. D. October 15.1890.) 1. INIUNOTION-WASTE-DISPUTED TITLE.
A bill for an injunction to prevent the commission of waste, which shows that the plaintiff is an applicant to purchase the premises from the United States as mineralland; tbat his right to so acquire the title is being contested in the United Statesland-oftlce; and that the defendants claim title adversely to him,-does not state a <iase within any known exception to the general rule, that equity will not interfere by injunction to prevent waste when the complainant's title is disputed. Under the rule for construing statutes, that an act of the legislature is not bindingupon the state unless made so by special and particular words, a state law, authorizing an injunction to prevent waste where two or more persons are opposingclaimants to the same tract of public land under the laws of the United States, is not·applicablf' in a case in which the state is ODe of the claimants. The word "persons." when used. in a statute. does not include the state.
9.
SAME-INTERPRETATION OJ!' STATUTE.
8.
S.unl..,.." PERSONS. "
(SyZlabus by the Court.)
Wm. H. Ried, for plaintiff. Snell, Bedford
« Claypool and Calkins« Shackleford, for defendants.
HANFORD, J. This is a suit for an injunction, brought against the defendants in their official and representative capacity as the board of county commissioners of Pierce county. A demurrer on the ground that there is no equity in the bill has been interposed, and the questions so raised are now to be passed upon. The sole object of the suit is to prevent the commission of waste upon portions of section 16. in township 20 N., of range 3E., in Pierce county, which, as the bill alleges, the defendants, in their official character, threaten and intend doing by cnusing the timber trees growing thereon to be cut down and removed, Which will materially lessen the value of the inheritance. The plaintiff shows no title to the lands, nor interest therein, other than as an applicant to purchase the same as mineral land from the United States, under the laws providing for the sale and disposal of lands valuable for the mineral therein, and the bill shows that his claims are being contested in the United States land-office by the state of Washington, and that the register and receiver of the land-office have not yet given' their decision as to his right to acquire title. As now administered in some of the courts of this country, equity will not deny to one having the title to land an injunction to restrain the commission of waste thereon, seriously impairing the value of the inheritance, on the ground of the title being disputed, or because of the pendency of an action to establish the title or todetermine any question affecting it. Such relief has been granted in a few cases, under peculiar CIrcumstances, or where by statute the equity power of the courts has been enlarged, as in the case of Lanier v. Alison. 31 Fed. Rep. 100. But in general such relief will be granted only for the protection of an existing right, and only in favor of one in whom an estate ofinheritauce is shown to be vested by unquestioned proof. v.44F.no.1-2
18
FEDERAL REPORTER,
vol. 44.
I can find no reason in the facts of the case before me to justify a dethis time-honored rule. On the contra!y, :-e01l.Tt could only, in the performance of an imperative and manifest duty U11der the law, exert its extraordinary power so as to interfere with tbeuse of property known to be of immense value for purposes other than mining, in claim to a mere inchoate right to acquire title is supported orily by the assertion of a mere conclusion that the land was, urlMr the Jaw$ relating to mineral lands of the United States, subject to his entry. Section 604, of the Code of Washington Territory, has been called to my attention by counsel for the plaintiff, and it is urged that enactment aJ;'ight .to,tl}einjunction pl,'ayed for is given. This stntutedoes in effE'ctauthotize, an injunction to prevent waste in cases two or more are opposing claimants tp the same tract of land under the land laws i df the United States. " But it is not applicable for, i.s, ,a case in which there are "opposing to this claimants "to the same tract of limd,ullder the laws of theVnited States" inasmuch as the plaintiff is endeavoring to acquire it through the pretense of an intention on his part of working it as a minl'l" Md. ·it may be assumed, as ltmatter 6f' law, although it ,is not alleged ift the' bill, that the state of Washington claims it asa part of the grant made to it by act of for 8chool pllr,IlQSes, stillit does not come within tile Jetter of the,act,.because tbeopppaing clait;nan!l:,Epll,re not two or more persons. OneoOhe o.ppQsing O1.ai¢l4nts is stlJ,te of Washington, .!In<;! it is not a perB9n ". wjthin the ordinary or leglll: of that word. TJ;1e court or appeals of NewYorkc, ina which the' definition oithe wordwll.s. 9f and in its decision was, on ",ppeal,;affirmerl by thtHApreme court.pf United States, held that theword,ll person" does: ,not; jn its pr legal inclupe either Ii'!ltate orallation... In re Fox, 52.N.Y. 535; u..S. v:Jibx, 94lJ. S. 31Q. Looking now to ,the spirit aIld" intent of the Ilj.w, it only ,more: clearly apparent that itcaupotapply tQ this caae.. The junctiop prayed for cannqt affeot the defendants as individlilals., It is ollly80ught to restrain the board ofcol;lIlty commissioners from executing a law. of, the state as the agent. and. instrument of the state, and. by no r»1E} tIle interpretation of statutes can suchlt lll:w, ,made for the benefitofitlf 'Citizens, be faiJ,-lyjnvoked orapplif;'d as against the sovereign and Olak.er of the law. Blackstone, speaking of the prerogative of thecrOWl), says: Thekiligisnot bound by allY act of parliament unless he be named therein by specialJand particular words. The most geriel'al words that can beidevised ('Ilnyperson or persons" bod.iell politic or etC'.,) affect not him in the tend to restrain or diminish any of hifpights or interests, for It, wou,ld be of most .mischievous. consequence. to the public if the strength aUhe executive power were liable to be curtailed Without its own by constructions and implications of the subject." express
where.
II
III the sal».e' rule of been recognize<;!", , ,4ws .givinj:t ,JHigants are.in geI:\eral made for citizens, and, unless clearly indicated by particular words, an intention t9 bi.nd
KELLEY II.!YPSILANTI DRESS-STAY KANUF'G 00.
the state by such enactments not be presumed. EridL Interp.;Sf. § 161. This statute was first enacted by the territoriallegislature, atiti:! first session, in 1854,9.s part of the civil practice act, and I think it is obvious that the law-makers did not, either at the time of originally drafting it, or re-enacting it, contemplate that the territory or state would become an opposing claimant to land under the laws of the United States, or that the execution of its subsequently enacted laws could be thereby hindered or prevented. The demurrer, therefore. should be sustained, and a judgment thereon entered for the defendant.
will
KELLEY II. YPSILANTI DRESS-STAY MANUF'G
Co.
(Circuit; Cmlll't, E. D. Michigan. November 17.1890.)
1.
A defendant in a patent suit who was the mannfacturer of certain articles claimed to be an infringement ,of plaintiff's patent, sought to obtain an oroer enjoining the prosecutio'n of three' suits begun in other districts against its customers, as well as the oommencement of new SUits, and the sending of letters and circulars .to others engaged in .the trade. threatening prosecution for sellingarticles made by .the defendant. Hetd--F'Lrst, that the prosecution of suits in other districts should not be enjoined, because such. suits were begun before this suit, and because comity demandell that application. should be made to the oourt in which such suits were pending. 2. Suni-IRRRPARABLE INlURY. secolld, that as the plaintiff might recover substantial damages against the defendant'. vendees, in addition to tliose which he would be entitled to recover against the'defendant as manufacturer. the oommencemt:mt of new suits should not be enjoined, unless irreparable injury was threatened to defendant's business, or there was evidence of malice or bad faith on the part of the plaintiff in commenoing such Buits. 8. SAME. And, tMrd. that plaintiff had a right to notify persons using his device of his claim,. and to call attention to the fact that. by or using it, they were making themselVes liable to proseoution, and that an injunotion would not be ordered unless the lanfP.lage of his letters or circulars was false, malicious, offensive, or opprobrious, or they were used for the willful purpose of inflicting an injury. (SyUab'u8 by the Court.)
INlUNCTJON-SUITS POR INFRINGEMENT-IdSUB OJ' THREATENING CIRCULARS.
InEquity. On petition by defendant for an injunction to restrain the commencement and prosecution of suits against its customers and the sending of circulars to others engaged in the trade. The petition set forth, in substance, that this suit was brought against the petitioner on the 10th of September, 1890, for the infringement of a patent corset thai petitioner owns property subject to execution in this district of the value of $50,000, and is engaged in the mannlactUre of'dress stays at Ypsilanti, under a patent to Enoch C. Bowling, and another to Elsie M. Smith; that plaintiff has brought three suits for alleged. infringement of his patentagaim,t customers of petitioner for seiling, in the ordinary course of trade, dress stays made by petitioner, the defense: of which Buits petitioner· is forced to assume, viz·· one in the circui1CO\1rttor the southern district of New York against the firm of
