#### A. BOSCHKE v. THE UNITED STATES.

[Congressional,

12902.

Decided February 23, 1909.]

*On the Proofs.*

The claimant testifies that while an employee of the Coast Survey between 1856 and 1859 he made a map of the District of Columbia, the wort being done out of office hours; that he made a verbal agreement with one B to engrave the map; and that the military authorities in 1861 seized the-original map and the copper plate engravings. It appears that the engravers furnished proof that they were the owners of the *398copyright and of the plates; also that all of such persons claiming to be the owners are now dead; also that the Government paid $7,380 to the persons claiming to be the owners, the claimant presenting no claim while the persons aforesaid were negotiating their settlement with the Government.

I.Where in a Tucker Act case there is improbability growing out of inconsistencies and contradictions in the claimant’s testimony the court can not find that his case is proven.

II.Where the Government contemporaneously settled with persons from whom an original map and engraved plates were taken, they declaring upon oath that they were the “ *lawful owners of the copyright of said map*” and that they had been in possession of the plates for three years, the claimant presenting no opposing claim of his own and the five persons with whom the Government dealt being dead, the court will not find facts to the contrary on the uncorroborated testimony of an interested party half a century later.

III.Where there has been lapse of time, inaction on the part of the claimant, presumptions of fact which he has allowed to gather upon and cloud his right, if any, the case comes within the rule in *Stone’s Case*(20 O. Cls. It., Ill; 164 U. S. R., 382).

*The Reporters'**statement of tbe case:

The following bill was referred to the court March 2, 1907, by resolution of the United States Senate, under act of Congress approved March 3, 1887, known as the Tucker Act:

A BILL For the relief of A. Boschke, civil engineer.

*Be it enacted by the Senate and House of Representatives of the United States of America in Congress*assembled, That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, out of any money in the Treasury of the United States not otherwise appropriated, to A. Boschke, civil engineer, of the city of Oakland, California, the sum of twenty-five thousand dollars, in full compensation for the seizure and appropriation by the War Department of the United States, as a military necessity, in eighteen hundred and sixty-one, of the original unpublished drawings, maps, plates, and data of and for an engraved topographic map of the District of Columbia, the same being the only topographic drawings, maps, plates and data then in existence available therefor, the property of said A. Boschke, which were then taken, held, and used by the United States as the basis for and in and about the plans *399for the fortifications and defense of the capital of the United States during the civil Avar.

The claimant appeared and filed his petition in this court April 3, 1907, in Avliich he makes the folloAving allegations:

That he is a resident of the county of Alameda, State of California, and did not give any aid or comfort to the rebellion during the late war, but Avas throughout that war loyal to the GoA^ernment of the United States.

That the following property belonging to A. Boschke, petitioner herein, Avas taken from him by the United States Army and used by the said army, the date, place, and command being as particularly stated below, the same being, and being so taken, under and in connection with the following facts and circumstances, to wit:

“ In 1856, being then 33 years of age, I* was assigned to Avork in the offices of the United States Coast Survey at Washington, D. C.; I then and there learned that the United States had no topographic or military map of the District of Columbia, and then recalling that in 1812 the English marines had entered the Capitol and burned valuable archives I conceived the idea of surveying the District and making a topographic military map at my OAvn expense, Avith the belief that some day it might be of great service to the ]Jnited States GoA^ernment. From before daylight in the morning and before 9 o’clock a. m. and until after dark from 3 o’clock p. m. I did and directed the surveying, draw.-ings, field-work, and completion of the Boschke topographical map of the District of Columbia, which labors extended continuously from the spring of 1856 to the winter of 1859. In supporting and maintaining my surveying parties in camp in the field and private offices on Pennsylvania avenue, Washington, D. C., I expended of my OAvn money over $15,000 apart from my OAvn labor in procuring the surveys, draAvings, and maps, and in completing the data and maps in sections for the Boschke topographical map of the District of Columbia.

“ Between the completion of the surveys in 1859 and the opening of the civil war in 1861, I had completed the drawings and maps of said Boschke map ready for the engravers. Gen. Winfield Scott was then in command of the United States Army; there was no topographic map of the District of Columbia or of the city of Washington; the Confederates were preparing to advance on the capital; I was stationed at Boston. I immediately received- at Boston from Professor Bache, of the United States Coast Survey at Washington, *400the inquiry, ‘ Where is your map ? ’ and immediately answered that it was at the engraver’s; that information sought by .General Scott was at once imparted to him and he immediately sent Maj. J. G. Barnard, of the Corps of Engineers, with a platoon of soldiers and seized and toot as a military necessity all the original drawings, maps, and the engraved copper plates of my topographical map of the District of Columbia.

“ This seizure was made May 16, 1861, and I have never seen any of that property since its seizure, and have never received anything whatever in compensation therefor.

“ General Scott in 1861 said to me that he was compelled to confiscate all my work, drawings, and maps for military use; that the information which they contained was too valuable and important to be outside of the War Department; that at that time the Government had no money with which to compensate me. Upon seeing Mr. Lincoln he told me the Government was* under financial stress to raise money to carry on the war and said that I should wait for compensation and that later I should be compensated.

“ That no claim save and except that herein referred to and hereby made against the United States has ever been made or presented by me or for me or in my name or behalf. I am now 83 years of age.

“ The only reason why this claim was not presented in earlier years was and is that in the active years of my life it was my intention and expectation to be able to accumulate a sufficiency enabling me to support myself in my old"age without asking 'from the Government what was and is my just due, but such intention and expectation having failed me I have presented my claim and do present this petition as matter of just right and pray that my claim and petition be allowed and granted.

“ That said services and my actual expenditures in the surveys, work, field notes, drawings and maps, and the property so seized by the Department of War were and are of the reasonable value of $25,000 and more, no part of which has ever been paid to or received by me or by any one for me or in my behalf.

“ That said claim has been presented to the Fifty-ninth Congress and was, by resolution of the United States Senate on the 2d day of March, 1907, referred to this honorable court for a finding of the facts in accordance with section 1 of an act approved March 3,1887, entitled ‘An act to provide for the bringing of suits against the Government of the United States.’

“ That no assignment or transfer of this claim or any part thereof or interest therein has been made.”

*401Tbe following are tbe facts of the case as found by tbe court:

I. The claimant, A. Boschke, was loyal to the Government of the United States throughout the late civil war.

II. The claimant, with the aid of other persons whose names and residence are neither given nor are ascertainable, during the years beginning with 1856 and ending in 1859, made surveys for a map of the District of Columbia; and made a map from such surveys, such Avork being done at a time when claimant was in the employ of the Coast and Geodetic Survey of the United States, and such work having been executed out of office hours. The work was done without expectation of compensation or of future profit. The claimant nevertheless suggested to a committee in Congress that the map should be engra\'ed, but because the committee took no action for engraving the map, he made a verbal agreement with one Thomas Blagdon to engrave the map. The claimant liad never known Blagdon up to that time. Claimant took no receipt for his manuscript map; gives no information as to Avho Blagdon was, other than that he Avas to engrave the manuscript, and that he was to be the owner of the plates, though no mention is made of any proofs that the engravers might be entitled to have, if any. Before the surveying was begun, and before the construction of the map for which compensation is claimed, there had been previous surveys of the District covering the same territory as the Boschke map, from which another map had been made, knoAvn as the Ellicott map. This Ellicott map was then among the archives of the Coast and Geodetic Siuwey and in the same office where the claimant Avas employed as a draftsman. The Ellicott map did not sIioav forested areas nor buildings and Avas deficient in not shoAving relative heights by figures. How much use, if any, was made of the Ellicott map as the basis of the endeavors of the claimant to make a more suitable map does not appear.

III. This map so made from the surveys aforesaid reached the hands of engravers residing in Washington before the civil war. The military authorities of the United States seized possession of the original map and the copper plates and engravings therefrom in May, 1861, just after the claim*402ant bad been asked by the authorities of the United States where the map was and upon information from the claimant referring the authorities of the United States to the engravers who had possession. The name or the names of the engravers were supplied to the Superintendent of the United States Coast Survey with their Washington addresses by the claimant, with no assertion of title or ownership on his part at the time. The claimant alleges that subsequently and when he learned that General Scott had ordered the map to be taken he had a conversation with the President at the instance of General Scott as to compensation. There is no corroboration of the claimant’s testimony on this point. Nor did he make any application for compensation to the Secretary of War or speak of the matter either in or around the office of the Coast and Geodetic Survey or in the war office.

In 1873 the claimant admits 'receiving a copy of the map from General Humphreys of the United States Army.

IV. Negotiations with reference to this map took place during the year 1861 between the Secretary of War and the-engravers of the same, who represented themselves to be the owners and proprietors thereof and also of the copyright. The names of these persons appear of record as D. Mc-Clelland, H. B. Sweeny, Thomas Blagdon, and Blanchard & Mohun. Under date of May 18, 1861, at Washington, D. C.7 these persons placed on file with the Secretary of War a statement under oath declaring that they were then the lawful owners of the copyright of the map and that they obtained possession of the plates in the months of January and March, 1860, and that the three copies and the manuscript were the only ones ever made up to that time of the original map — which copies and manuscript were then in the hands of the Government under seizure by order of the Secretary of War. The persons so alleging themselves to be proprietors and owners, not only of the plates and drawings but likewise of the copyright of the map, included in the price asked of the Government for the same the cost of surveying Bock Creek as well as other preliminary work which was done upon the map. In the correspondence and negotiations which took place between the engravers, who represented themselves to be the proprietors of the map as *403well as ibe copyright, the name of Boschke was not mentioned or referred to in any way, but throughout the entire negotiations the parties whose names are hereinbefore set forth, and from whom the property was taken, represented themselves to be “ lawful owners of the copyright of said map, and obtained possession of the plates in the months of January and March, 1860.”

These five men placed the value of the map, copyright, and preliminary work done thereon at the sum of $12,000.

The competent evidence submitted by the claimant does not overthrow the presumptions arising out of the whole evidence in the cause that the copyright with the plates and engravings made from the manuscript map belonged to the persons who, being in possession, represented themselves to be sole owners, and who in consequence of their possession and proof of ownership were paid by the Government.

Y. In 1863 upon the petition of the alleged owners of said map, plates, and copyright, who were Messrs. Blagdon, Blanchard & Mohun, Sweeny, and McClelland, the cost, and valuation of the property was assessed as follows:

Value of plate_$3, 960

Cost of execution_ 3,420

Total _ 7,380

The-competent evidence does not establish to the satisfaction of the court that the value of all the property seized by the Government which included the copyright and for which the Secretary of War concluded settlement with Blag-don, Blanchard, and Mohun, Sweeny, and McClelland as aforesaid was more than seven thousand three hundred and eighty dollars.

The map was suppressed as of no further use to the Government, as the authorities had obtained about fifteen copies of the map.

All of the persons from whom the map and plate and engravings were taken are now dead. Indorsements at the time of the settlement established to the satisfaction of the Secretary of War the patriotism and reliability of the persons with whom the settlement was made.

*404YI. The Secretary of War approved the award for $7,380, to be paid from the appropriation for surveys for military defenses, upon the acceptance by said Blagdon, Blanchard, and others in full of all demands.

While this matter was pending between the persons from whom the map was taken by the War Department, the matter of cost was referred to the Superintendent of the Coast and Geodetic Survey for information with reference to the value of the surveys of the makers of the map. The Superintendent of the Coast and Geodetic Survey could not make any estimate himself, but submitted an opinion of an assistant engineer of the survey force on October 26, 1863, which estimate was stated to be $9,000 as the estimated cost to the maker with regular surveys including the drawing and engraving of “ about ” $10,000.

The Secretary of War referred the application of IT. B. Sweeny and others to the bureau of topographical engineers respecting the matter of costs, and S. H. Long, Colonel Topographical Engineers, reported that the bureau concurred with Lieutenant-Colonel Macomb in referring the subject of cost as requested by the owners to Professor Bache, of the coast survey, .and Brigadier-General Totten, Chief Engineer, for the purpose of ascertaining first, *the value of the*property, and second, *its cost to the present proprietors.*

Professor Bache was superintendent of the Coast and Geodetic Survey at the time.

Remuneration was made on an estimate of the entire value of the property including cost of same to the reputed owners.

The award for $7,380, which included the value of the plate and the- cost of execution, was accepted' by Blagdon, Blanchard, Mohun, McClelland, and Sweeny under date of November 27,1863, and the claim was settled by the Third Auditor of the Treasury December 21, 1863, settlement No. 2522, and paid on warrant No. 2716, 1863, request No. 3385. The persons whose plate was valued at $3,960, *with cost of execution at $3^0,*were the persons declaring on oath that they were the owners of the copyright.

*405The competent evidence does not establish any higher or different cost than that included in the foregoing- statement upon which settlement was made.

The claimant has not offered any evidence showing to the satisfaction of the court what his detailed expenditures were in surveying the ground and making the map. There are no books of account offered in evidence showing payments to other, persons, no receipts, no letters, and no written memo-randa to show the length of time he was engaged in doing the survey work or how much money was paid on account of making the surveys. The map was made without any direct expectation of reward.

In corroboration of the alleged cost of the map claimant alleges that at the time he was engaged in the work of making the same he had a salary in the Coast and Geodetic Survey amounting to $¿5,000 a year. The record evidence establishes this to be a mistake. The claimant entered the public service with the Coast and Geodetic Survey August 14, 1849, at a compensation of $15 per month and board, which was subsequently increased to $500 per annum; then to $600 per annum; then to $2.50 per diem of six hours “ while employed on contract work,” with compensation increased to $4 per day, and subsequently to $4.50 per day from July 1, 1855, to October 28, 1859, at which time he resigned. The claimant continued in the service of the Government in other capacities for many years.

VII. The records of the Government in the office of the War Department and of the other departments do not show any correspondence had with the present claimant, Mr. Boschke, in regard to the matter of the map in question either before or during the war from 1861 to 1865 or thereafter, except as hereinafter stated; neither does it appear that, at any time prior to the reference of this case to the court by Congress and the correspondence incident thereto, he ever claimed to be the owner of said map, plates, drawings, copyright, or what not connected therewith.

Several letters passed between the Superintendent of the Coast and Geodetic Survey and the claimant in regard to the survey of the map before the seizure of the property, but the nature and contents of these letters are not in evi*406dence nor are the precise dates known to the court. In March, 1860, a Senate committee passed a resolution inquiring as to the cost of engraving the map. This statement is founded upon oral evidence, but the court is without further knowledge of the nature and character of the report in the absence of any exhibit of the report itself as evidence.

VIII. After the plates and original manuscript and such rough copies as had been made had passed into the possession of the Government, claimant took no steps to assert his title or prove ownership adverse to those with whom the Government dealt. Blanchard & Mohun were owners of a bookstore; McClelland, like Blagdon, was also an engraver. These persons, with Sweeny, all became associated with Blag-don, but whether with the claimant’s consent does not satisfactorily appear.

*Mr. William B.*Matthews, *Mr. William R.*Davis, *Mr. William H.*Robeson, and *Mr. John Pierce Bruns*for the claimant.

*Mr. Franklin W. Collins*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

*Howry,*J.,

delivered the opinion of the court:

The questions presented arise on the motion of the claimant to amend the findings to be transmitted to Congress under the fourteenth section of the act of March 3, 1887, known as the “Tucker Act ” (24 Stat., 505, c. 359). After full argument and a more exhaustive analysis of the whole record, results appear in the substituted findings from which it will be seen that there is too much improbability growing out of inconsistencies and contradictions in the testimony for the court to say that the case is proven.

It is argued with much earnestness that the author of any intellectual production has the exclusive right to reproduce or make copies of it unless and until by publication without copyright the author has given his production to the world; This is true, and the court is of opinion that this right would exist with respect to charts and maps. There is authority that need not be cited to show that such right is of an incorporeal character separate from the mechanical means of *407reproducing the wort. But that is not the question in this case, but rather whether the claimant has overthrown the record evidence upon which the Government acted in purchasing the entire outfit from those in rightful possession of all the property and who were settled with as the rightful owners of the. copyrights as well as the plates. The subject-matter of the correspondence related to “ the Boschke map ” and its cost to the persons whom the Secretary of War recognized at the time of the settlement as “ the present proprietors.” They asked $12,000 for the property, *including the copyright.*Indorsements on file at the time of the settlement relate to the patriotism and reliability of some of the persons claiming to be owners. The experts whom the record shows made estimates assessed the valuation of the plates and cost of execution and the Secretary of War settled with the persons from whom the original map and plates were taken, not only upon testimony relating to the character of the persons claiming to be owners, but upon declarations under oath that they were sole proprietors of the copyright as well as owners of the plates and such engravings as they had struck off from the plates in their possession at the time of the seizure.

Blagdon, Blanchard, Mohun, Sweeny, and McClelland are all dead. They and each of them declared upon oath preceding the settlement that they were the “ *lawful owners of the copyright of said*map, *and obtained possession of the plates in the months of January and*March, *1860?*

The claimant admits that the original map *never had any market value*after its completion, and it may be that when a committee in Congress refused to take any interest in acquiring the use of the map the claimant attached no importance to the copyright. This, however, is unimportant, as we must come back to the proposition that executive authority paid for what it needed on proof contemporaneous with the settlement and preceding it, covering evidences of ownership different from that of the claimant, while the court is asked on the uncorroborated testimony of the interested party nearly a half century later to find the ownership to be in him. If the court undertook to do so, then the five men who declared the copyright to be in them presented a false, fraudulent, or fictitious claim against the Government, contrary to *408the provisions of section 5438 of the Revised Statutes. It ought to take more than one interested witness to put a stigma upon the memory of men who are no longer living to tell a different story, as their characters are presumably as good as the character of the claimant.

The lapse of time, the inaction of the claimant, the presumptions of fact which he has allowed to gather upon and cloud his right, if he ever had any, are not overcome by the evidence which he has produced. *(Stone*v. *United States,*29 C. Cls. R., 111; 164 U. S., 382.)