# Market Street Cable Railway Company v. Rowley

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United States Supreme Court
155 U.S. 621
Market Street Cable Railway Company v. Rowley
In the circuit court of the United States for the Northern district of California, at the February term of the year 1891, B. N. Rowley brought an action at law against the Market Street Cable Railway Company, a corporation under the laws of the state of California, wherein he alleged that on the 28th day of June, 1887, Benjamin W. Lyon and Reuben Munro, as inventors of an improvement in car-axle lubricators, obtained letters patent therefor, bearing said date, and numbered as No. 365,754, and that subsequently, in 1890, said patentees assigned and transferred to the said plaintiff all their right, title, and interest in and to the invention and the letters patent, in and within the state of California, together with all past accrued claims and demands thereunder in said state; that the defendant company had, since the issuance of such letters patent, without the consent of the plaintiff or that of his assignors, wrongfully and unlawfully made and used, and were continuing to make and use, car lubricators containing and embracing said invention.
The defendant appeared in said action, and pleaded the general issue, and a further plea that said Lyon & Munro were not the inventors of the device described in the letters patent, nor was the said invention their joint invention, and likewise a further plea that the defendant procured at all times a license from the said patentees, authorizing their use of said patented device, and likewise a further plea that many of the car-axle lubricators complained of as infringing devices were put upon the cars of the defendant company, and used with the knowledge and consent of said Lyon & Munro, prior to their application for the said letters patent, and that thereby the said defendant became possessed of the right to use said car-axle lubricators so put and used upon its cars prior to said application, during the life of said patent.
The bill of exceptions discloses that the plaintiff put in evidence, letters patent of the United States, No. 365,754, issued on June 28, 1887, to Benjamin W. Lyon and Reuben Munor, and a written assignment thereof, and of rights of action thereunder, to the plaintiff, by Lyon & Munro, dated November 26, 1890. The plaintiff put in evidence a model representing the device sued on, and called witnesses to show the use by the defendant on its lines of the said lubricator, and evidence bearing upon the measure of damages.
The bill of exceptions further shows that it was admitted and understood by the parties on both sides: That the cable cars used by the defendant are constructed differently from other street and railroad cars, in this: The cars, instead of having an axie extending across near each end, with its journal bearing in boxes, as ordinary horse and street cars are carried, are supported and carried on two swivel trucks, one near to each end of the car, similar to a railway car. The wheels which support these trucks are quite small in diameter, in order to bring the body or floor of the car as near the ground as possible. That the defendant was the first to construct and run cars built in this way, and that all the cable cars used by the defendant are built in this way. It was also understood that the only method of oiling the journals of defendant's cars, in use before the invention of Lyon & Munro, was to make a chamber in the box around the journal, and fill it with cotton or other waste. The oil was then poured into this chamber, and allowed to run down through a hole which connected the chamber with the journal bearing, and be delivered upon the journal. That method caused much trouble and annoyance, because the oil would often run out before the trip of the car was completed, and the car would finish its trip with a hot journal, and would have to run into the engine house to have its journals cooled off. It was also admitted that the defendant controls and operates five distinct lines of cable cars in its system, viz. the Valencia Street Line, the McAllister Street Line, the Haight Street Line, the Hayes Valley Line, and the Castro Street Line, each one being a distinct line, but each running on Market street a portion of its length, and branching therefrom at different points; that the patentees, Lyon & Munro, placed their oil cups on the cars of the Hayes Valley Line before the patent was applied for; also that the specific oil cups placed upon the Hayes Valley Line of defendant's cars by the patentees, before their application for a patent, had wooden bottoms, and that after being in use for a few months the wooden bottoms were swelled by the absorption of oil, and burst. The bill of exceptions further discloses that the plaintiff called Lyon and Munro, by whose testimony it appeared that they were in the employ of the defendant company at the time they made their invention, ant still were; that the materials used, which were of small value, belonged to the company; that the cups put on the Hayes Valley Line were experimental, and at the time of the trial were no longer in use, having burst by reason of having wooden bottoms; that the defendant was using the patented device on its various lines with the knowledge of the patentees; that the patentees had never demanded or received from the defendant company any compensation for the use of the patented device, either directly or by way of increase in salary, or additional privileges.
The bill of exceptions further discloses that the defendant put in evidence patent-office copies of several letters patent for oil cups and lubricators prior in date to those granted to Lyon & Munro.
After the testimony was closed, the counsel for defendant made a motion that the court direct the jury to return a verdict for the defendant, on the ground that the patent sued on was void for want of novelty. This motion was, after argument, overruled; and the defendant's counsel took an exception, which the court allowed.
The defendant's counsel then requested the court to charge the jury as follows: 'If you believe from the evidence that Benjamin W. Lyon and Reuben Munro were at the time they made this invention in the employ of the defendant, and that they constructed, or acquiesced in the construction of, the car-axle lubricators used by the defendant, while in its employ, in its time and at its expense, and that they put them, or allowed them to be put, upon defendant's cars, and allowed them to be used, no compensation being made or demanded, then these facts fully justity the presumption of, and of themselves constitute, an implied license to the defendant to use, and to continue to use, said car-axle lubricators, and you will return a verdict for the defendant.' This request the court refused.
And the defendant's counsel took an exception, before the jury retired, to the court's refusal to give the instruction as requested.
The jury found a verdict in favor of the plaintiff in the sum of $100, and on March 13, 1891, judgment was entered for that sum and costs. To which judgment a writ of error was sued out.
Mr. Justice Brown dissenting.
H. S. Brown and Wm. F. Booth, for plaintiff in error.
John H. Miller and John L. Boone, for defendant in error.
Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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