# Belknap v. Schild

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## Dissenting Opinion

    Harlan
United States Supreme Court
161 U.S. 10
Belknap v. Schild
This was a bill in equity, filed January 20, 1887, in the circuit court of the United States for the Northern district of California, by George Schild against George E. Belknap, Joseph Feaster, Christopher C. Wolcott, and Jesse Diamond, for an infringement of letters patent granted by the United States to the plaintiff on October 23, 1883, for an improvement in caisson gates.
The bill alleged that the defendants, with full knowledge and in violation of the plaintiff's exclusive right, manufactured and used, and intended to continue to use, such caisson gates in the state of California; and that he had brought an action in the same court against the Union Iron Works of San Francisco, and on the trial of that action, and, after he had waived other than nominal damages, recovered a verdict in the sum of one dollar in August, 1886, and the validity of his patent and the fact of infringement were thereby established.
The bill prayed that the defendants be decreed to account for and pay over to the plaintiff all such gains and profits as had or might have accrued to them from purchasing or making or using such improved caisson gates; that any further damages sustained by the plaintiff by reason of the defendants' infringement be assessed and ordered to be paid; that the defendants be restrained by injunction from making or using caisson gates containing the patented improvement; that the caisson gates, containing that improvement, and so manufactured, or purchased or in any manner obtained by the defendants, and now in their possession, be destroyed or delivered up to the plaintiff; and for further relief.
The defendants filed a plea to the whole bill (called in the record a 'plea in abatement'), alleging that the court 'ought not to take cognizance of or sustain the aforesaid action,' for that the defendant Belknap was a commodore in the United States navy, and commandant of the United States navy yard at Mare Island, Cal.; that the defendants Wolcott, Feaster, and Diamond were, respectively, a civil engineer in the navy, an assistant naval constructor in the navy, and an employ e of the United States at Mare Island; that the only caisson gate which either of the defendants had any relation with, control over, or use of, within the state of California, was one constructed, manufactured, and used by the government of the United States, and for their use and benefit, at the navy yard at Mare Island, and was there built by the Union Iron Works, in pursuance of plans and specifications furnished by the bureau of yards and docks, a board in the naval service of the United States, and was delivered by the Union Iron Works to the United States, and used by the United States in the dry dock of that navy yard; and that neither the defendants nor either of them made or constructed the caisson gate in question, or used it for their own use and benefit, or ever had or pretended to have any interest in or claim upon it; but that they only operated and used it as the officers, servants, and employees of the United States, as a part of the navy yard, and for public uses of the United States, in the exercise of their sovereign and constitutional powers.
The attorney general of the United States, appearing for this purpose only, filed a suggestion (called in the record a 'plea to the jurisdiction'), in which he stated that the caisson gate in question was planned and constructed by the United States, and ever since its construction had been in the possession, control, and use of the United States at the navy yard at Mare Island, and was operated at the dry dock in the navy yard for naval purposes and the public defense, in the building and repairing of ships for the navy of the United States; that the United States, through their officers and agents, charged with the possession, control, and operation of that navy yard, had at all times been in possession, control, and operation of the caisson gate as public property of the United States, for public uses, in the exercise of their sovereign and constitutional powers; and that the defendants, and each of them, never had anything to do with the construction, use, or operation of the gate, or made any claim of right, title, possession, control, or use of it, other than as officers and agents of the United States, and in obedience to orders of the naval department of the government; and therefore, 'without submitting the rights of the United States to the jurisdiction of the court, but insisting that the court has no jurisdiction of the controversy, for that the said caisson gate and its use now is and at all times has been the property of the United States.' moved that the bill be dismissed, and all proceedings stayed and set aside.
The case having been submitted to the court upon the plea of the defendants, and the suggestion of the attorney general, both were overruled.
The defendants, Belknap, Feaster, Wolcott, and Diamond, then filed an answer, admitting the grant of the letters patent, denying the infringement, setting forth affirmatively the matters stated in their former plea, and alleging that neither these defendants nor the United States were parties to the action brought by the plaintiff against the Union Iron Works, or estopped by the judgment therein.
A general replication was filed, and evidence was taken, by which it appeared that the validity of the plaintiff's patent, and its infringement by the defendants, were subjects of conflicting testimony; that Mare Island, and the works and dock thereon, including the caisson gate, belonged to the United States, and were held and occupied for them by their officers and employees; that the defendants, respectively, held the positions states in their former plea, and had no interest in the caisson gate, and nothing to do with it beyond operating it under the direction of the United States; that the gate was built in 1884, without any agreement or license of the plaintiff, by the Union Iron Works under its contract with the United States, and according to plans and specifications furnished by the bureau of yards and docks, and Wolcott simply inspected the materials and workmanship, as the work progressed, to see if they were according to the contract; and that the gate had since been used by the United States, as part of the dock in the navy yard aforesaid.
After a hearing upon pleadings and proofs, the court made an interlocutory decree, adjudging that the patent was valid, and had been infringed by the defendants, referring the case to a master to take an account of the number of caisson gates made or used by the defendants, or either of them, in violation of the patent, and also of the gains, profits, and advantages arising or accruing to the defendants, or either of them, and of the damages sustained by the plaintiff, and ordering a perpetual injunction against the defendants, and each of them, 'and their and each of their agents, servants, clerks, and workmen, and all persons claiming or holding under or through them, or either of them.'
The master reported that one caisson gate to the dock in the navy yard at Mare Island, for the making and using of which the defendants had been adjudged to have infringed the plaintiff's patent, had been made upon plans furnished by the plaintiff, and modified by the government officials, and put in use in 1884; that the cost of this gate was $60,000, and the cost of the cheapest practicable gate, constructed on any other plan known to the defendants, would be at least $100,000, and therefore the gains, profits, and advantages which had arisen and accrued to the derendants from infringing the plaintiff's patent amounted to $40,000; and that no damages, in addition to such gains, profits, and advantages, had been proved.
The court overruled exceptions taken by the defendants to the master's report, confirmed his report, and entered a final decree for the plaintiff for the sum of $40,000, with interest and costs. The defendants appealed to this court.
Mr. Justice Harlan dissenting.
Asst. Atty. Gen. Conrad, for appellants.
J. H. Miller, for appellee.
Mr. Justice GRAY, after stating the case, 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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