cause, in our opinion, the first claim of the reissued patent, which is the only one that the plaintiff insisted had been infringed, is void. The testimony showed that it was the practice in saw-mills to "slab" the logs after they were placed on the carriage, that is, to saw off slabs on two or four sides of the log. To accomplish this it was necessary that the log should be turned on the carriage. An inspection of the drawings and specification of Esau Torrent's original patent shows that his device was for the turning of logs upon their axes when placed upon the carriage of a saw-mill, so that the opposite parts of the log might be successively presented to the saw and slabs cut therefrom. It was no part of the purpose of the contrivance to roll the log from one place to another, as from one part of the log deck to another, or from the log deck to the carriage. On the contrary, the drawing shows that the device was so made as to prevent the rolling of the log from one place to another. This was accomplished by knees considerably higher than the diameter of the log, against which the log was pressed and which held it in position and formed part of the means by which the log was made to revolve on its axis. When placed in contact with the knees, the log was in the right position to be subjected [667] to the action of the saw. It is not possible, with this device, to roll the log from one place to another except by raising it, if that could be done, to the top of the knees and tumbling it over them to the other side; and, if this were done, it would defeat the object of the invention by moving the log off the carriage and away from the saw. In the re-issue, the specification is modified so as to make a radical change, not only in the purpose but in the mechanism of the invention. In the original patent, the invention was declared to be an improved device for turning or rolling logs upon the carriage of a saw-mill. In the re-issue, the invention was declared to be a device for turning or rolling logs to or upon the carriage. The device, as described in the reissued patent, is adapted, not only to turn logs on their axes but to roll them from one place to another, as from one part of the log deck to another, or from the log deck to and upon the carriage. This requires a change of mechanism. To turn a log when on the carriage without change of its location requires that the toothed bar should be placed as closely as possible to the side or within the side of the carriage, and there must be knees to prevent a change in the location of the log. To roll a log to the carriage or to roll a log from the log deck upon the carriage, the toothed bar must be at a distance from the carriage at least as great as the diameter of the log, and the slot in which it works must be extended accordingly, and the knees are not only unnecessary but would be an obstruction to the operation of the device. The movement of a toothed bar in turning a log on a carriage, against the resistance of the knees, is necessarily in the same plane, while the movement of a toothed bar in rolling a log toward or upon a carriage is necessarily in constantly changing planes, as the bar follows the changing position of the log. The change of the specification, therefore, includes an omission of the knees, a change in the location of the toothed bar, a change in its movements and a change in the effect produced by its movements. The re-issue, consequently, covers a different invention from that described in the original patent. It embraces a different [668] machine, intended for different purposes and performing different functions, from that described in the original patent. When we turn to the claims of the re-issued patent we find a corresponding enlargement of the scope of the patent. The claims of the original patent are substantially reproduced in the re-issued patent, except that a combination instead of an arrangement of the different parts was claimed. But a new claim is added, namely: the first, which is as follows: "The toothed bar herein described, operating substantially in the manner and for the purpose described." Each of the claims of the original patent was for a combination. But the first claim of the reissue covers the toothed bar, operating substantially in the manner described, without reference to the mechanism by which it was moved, segregated from the combination and claimed as a distinct invention of the patentee. The operation of the toothed bar is enlarged in the first claim of the re-issue. In the original patent it was used in connection with the knees set upon the log carriage to prevent the log changing its place and to aid in giving the log a rotary motion on its axis. In the first claim of the re-issue, construed in connection with the changed specification, the toothed bar may be used with or without the knees. The knees are used when the toothed bar is employed for revolving the log on its axis, and they are omitted when the toothed bar is used for rolling the log over and moving it from one place to arother. Both the specification and claims of the re-issue are enlarged to include an invention not described or included in the original patent. The application of John Torrent for his patent, dated August 12, 1873, was filed January 29, 1873. The invention covered by his patent was the alleged infringing machine used by the defendunt. After the patent of John Torrent [669] owner. had been applied for and his invention fully de- | pursuant to an Act of Congress, as private property, tial advance in the art to which the original 2. Such an implication being consistent with the constitutional duty of the Government, as well as pensation is one arising out of implied contract, with common Justice, the owner's claim for comwithin the meaning of the statute defining the jurisdiction of the Court of Claims, although there may have been no formal proceedings for the condemnation of the property to public use. 3. The owner may waive any objection he might be entitled to make, based upon the want of such tion of the Government as a taking under its sovformal proceedings and, electing to regard the acereign right of eminent domain, may demand just compensation for the property. [No. 111.] Argued Dec. 1, 1884. Decided Dec. 22, 1884. PPEAL from the Court of Claims. in the opinion of the court. Messrs. S. F. Phillips, Solicitor-Gen., and John S. Blair, for appellant: The principal difficulty here seems to be that the United States has been adjudged to pay for land, as to which no title of any sort has been obtained by it; it being hereby submitted in that connection that the Court of Claims has no jurisdiction to create such title by its own judgment. to include in the monopoly of his patent and A The history and facts of the case appear Term. It follows, from the views we have expressed, that the plaintiff below failed to show any cause of action against the defendant. The court should, therefore, have charged the jury, as requested, to return a verdict for the defendant. Its refusal to do so was error, for which the judgment must be reversed, which is accordingly done, and the cause is remanded to the Circuit Court, with instructions to grant a new trial. True copy. Test: Neither the President nor the Secretary of the Interior was authorized to agree for lands required for the dam; the words of the statutes conferring a power to agree are limited to land required for the aqueduct proper. no power to bind his own official discretion as to price, etc., by delegating that discretion substantially to third persons. He might have taken information, through Mr. Curtis, etc., or in any other way, and might of course pay for such information; but he had no power to substitute their judgment for his own. The award, therefore, did not bind the Secretary nor, consequently, the United States. No matter what its words were, a subsequent positive assent thereto by the Secretary was necessary to give it the force of an agreement. Ut res magis valeat, the award in this case is to be read as being merely information to the Secretary upon James H. McKenney, Clerk, Sup. Court, U. S. the question of value. UNITED STATES; Appt., D. Messrs. B. F. Butler and Charles F. Peck, for appellee: Any rights accruing to the appellant have been waived by taking possession of the property. He who dispenses with the performance of a GREAT FALLS MANUFACTURING CO. condition cannot take advantage of its non-per (See S. C., Reporter's ed., 645-659.) Lands taken for public use, compensation for *1. Where property to which the United States NOTE.-Eminent domain; the right to payment for only to Federal Government, and not to States. See formance. Majors v. Hickman, 2 Bibb, 218; Carrell v. Collins, 2 Bibb, 431; Williams v. Bk. of U. S., 2 Pet., 102; Marshall v. Craig, 1 Bibb, 380; Morford v. Ambrose, 3 J. J. Marsh, 690; Crump v. Mead, 3 Mo., 233; Miller v. Ward, 2 Conn.; 494; Clendennen v. Paulsel, 3 Mo., 230; Webster v. Coffin, 14 Mass., 196; Seymour v. Bennet, 14 Mass., 268; Clark v. Moody, 17 Mass., 149; Cooper v. Mowry, 16 Mass., 7; Jones v. Walker, 13 B. Mon., 163; Dodge v. Rogers, 9 Minn., 223; Nav. Co. v. Wilcox,7 Jones, 481; Camp v.Barker, 21 Vt., 469. The United States is held to the same lia [647] bility upon contracts, express and implied, in 858 Bales of Cotton, Blatchf. Prize Cas., 326; Diversion of water by the Government is an Gardner v. Newburgh, 2 Johns. Ch., 162; It makes no difference as to payment, whether use. Armington v. Barnet, 15 Vt., 745; Pierce v. Mr. Justice Harlan delivered the opinion of the court: This is an appeal from a judgment in favor of the Great Falls Manufacturing Company, a Corporation of the State of Virginia, for the sum of $15,692 as compensation for all past and future use and occupation by the United States of certain land, water rights and privileges claimed by that Company, and all consequential damages which it may legally assert by reason of the execution of a certain one of the plans adopted by the Government for supplying the Cities of Washington and Georgetown with water. The case made by the findings of fact is, in substance, as will be now stated. the river from a point opposite the middle of Conn's Island to a point below the Great Falls, and running back a distance of about half a mile. A considerable portion of it is elevated ground, well adapted to the construction of mills and manufactories, which may be supplied with water power from the river, and by canals, races or other artificial water ways. Before the construction by the Government, of the dam and other works to be presently referred to, Conn's Island divided the Potomac River into two unequal channels, about ninety eight per cent of the water passing through the Virginia channel, and two per cent through the Maryland channel, at low stages; the total flow at low water being estimated at about 1,065 cubic feet per second, or 700,000,000 gallons daily. Of these lands, water rights and privileges, the Great Falls Manufacturing Company claimed to be the owner at and prior to the before mentioned appropriation of $5,000. On the 3d of March, 1853, Congress appropriated, "to be expended under the direction of the President of the United States, for the purpose of bringing water into the City of Washington upon such plans and from such places as he may approve, $100,000; Provided, that if the plan adopted by the President should require water to be drawn from any source within the limits of Maryland, the assent of the Legislature of that State should first be obtained." 10 Stat. at L., 206, ch. 97. On the 3d of May, 1853, the Legislature of Maryland passed an Act giving her assent to the purchase by the United States of such lands and to the construction of such dams, reservoirs, buildings and other works, within her limits, as might be required under any plan adopted by the President for supplying Washington with water. That Act provided that if the United States could not agree with the owners for the purchase of land, earth, timber, stone or gravel required for the construction of such works, or in case the owner thereof should be a feme covert or under age, non compos mentis or a non-resident, "It shall, nevertheless, be lawful for the United States to enter upon such lands and to take and use such materials, after On the 31st of August, 1852, Congress appro- having first made payment or tendered pay. [648] priated $5,000 to enable the President to cause ment for the same at the valuation assessed the necessary surveys and estimates to be made thereon," in the manner prescribed in that Act; for the best means of supplying those cities also, that before the Act should take effect, the with good and wholesome water. 10 Stat. at United States "Shall agree to such conditions L., 92, ch. 108. In execution of that Act, Presi- as the Chesapeake and Ohio Canal Company dent Fillmore transmitted to Congress the re- may consider necessary to secure the canal from port of General Totten, of the Corps of Engi-injury in carrying into effect any plan that may neers, recommending the construction of an aqueduct from the Great Falls of the Potomac, situated in the State of Maryland, about sixteen miles distant from Washington. The Great Falls form a series of rapids extending for about one half or three fourths of a mile, in the course of which the river falls about seventy feet; from which to the tide level at Washington there is a further fall of about seventy feet. Just above these rapids is Conn's Island, lying near the Maryland shore, and distant about 1,400 feet from the Virginia shore. At its head, extending up the stream, are several small islands called the Cyclades, separated from each other and Conn's Island by narrow channels. On the Virginia side, is a body of land known as the Toulson tract, extending along be adopted for supplying the City of Washing- Then followed certain appropriations by Con- By an Act entitled "An Act to Acquire Certain Lands Needed for the Washington Aqueduct, in the District of Columbia, Approved April 8, 1858, 11 Stat. at L., 263, ch. 14, it was, | wherein was recited the claim of the latter for among other things, provided: "Whereas, it is represented that the works of the Washington Aqueduct, in the District of Columbia, are delayed in consequence of the proprietors' refusal, in some cases, to sell lands required for its construction at reasonable prices, and because in other cases the title to the said land is imperfect or is vested in minors or persons non compos mentis or in a feme covert or in persons out of the District of Columbia; and whereas, it is necessary for the making of said aqueduct, reservoirs, dams, ponds, feeders and other works, that a provision should be made for condemning a quantity of land for the purpose: Therefore, Be it enacted, etc., That it shall and may be lawful for the United States or its approved agent to agree with the owners of any land in the District of Columbia through which said aqueduct is intended to pass, for the purchase or use and occupation thereof; and in case of [649] disagreement, or in case the owner thereof shall be a feme covert, under age, non compos or out of the District of Columbia, on application to a Judge of the Circuit Court of said District, the said judge shall issue his warrant, under his band, to the Marshal of the said District to summon a jury." [650] The rest of the Act is limited to mere details. On the 12th of June, 1858, 11 Stat. at L., 323, ch. 154, the further sums of $800,000, and so much of the $250,000 as was not used under the Act of August 18, 1856, were appropriated "for the completion of the Washington Aqueduct." Thereafter, on the 27th of July, 1858, proceedings were commenced by the United States, before a justice of the peace in Maryland, for the assessment of the damages which the dam of the Washington Aqueduct proposed to be constructed at the Great Falls should cause to the appellee, of which the latter had due notice. The damages were assessed at $150,000; but, in November of the same year, the inquisition, upon the application of the United States, was set aside by the Circuit Court of Montgomery County, Maryland, and another one was ordered. But there was no further prosecution | of these proceedings. By an Act approved March 3, 1859, 11 Stat. at L., 435, ch. 84, the dams, aqueducts, water gates, reservoirs and all improvements connected therewith, constructed or to be constructed by the United States for the conveyance of water from the Potomac River, above the Great Falls, to the Cities of Washington and Georgetown, were directed to be placed by the President "under the immediate care, management and superintendence of a properly qualified officer of the United States Corps of Engineers to be appointed by him, who shall act under the Department of the Interior," etc., his decision to be subject only to appeal to the Secretary of the Interior. On the 25th of June, 1860, 12 Stat. at L., 106, ch. 211, Congress appropriated the sum of $500,000 for the aqueduct, to be expended according to the plans and estimates of Capt. Meigs and under his superintendence. On the 20th of November, 1862, articles of agreement were executed between the Secretary of the Interior, in the name of the United States, and the Great Falls Manufacturing Company, compensation for the use by the former of certain lands and water rights at the Great Falls, the cost that would ensue to both parties from any further delay in the settlement of their differences, and the anxiety of the Government to prosecute the work in question; and whereby such claim was referred to arbitrators, one of whom was the late Benjamin R. Curtis, with power to examine into, decide upon and award such compensation, if any, as the claimant may be entitled to for the use and occupation of said land and water rights, and all consequential damages that the Company might legally claim by reason of the execution of the several plans adopted by the Government in the location and construction of the dams and other works of the Washington Aqueduct. Pursuant to this agreement, the United States and the claimant appeared by counsel before the arbitrators, witnesses were examined and documentary evidence was submitted by the respective parties. At the hearing, the Great Falls Manufacturing Company filed with the arbitration a specific description of the lands to which it asserted title, and which it claimed would be affected by the improvements made or proposed to be made. The United States filed the specifications of its proposed plans of operations, being four in number. The arbitrators made an award in writing on the 28th of February, 1863, all the costs and expenses of which, including $12,000, the amount of compensation charged by them, were paid by the Secretary of the Interior out of the appropriations for the completion of the Washington Aqueduct. By the award it was determined that the amounts to which the Company was entitled, as compensation and damages for the use and occupation by the United States of the land, water rights and privileges claimed by it, were as follows: if the first plan of improvements was carried into execution, $63,766; if the second, $50,000; if the third, $77,200; if the fourth, $15,692. The fourth plan involved the construction of a dam of ma sonry from the Maryland shore to Conn's Island, and gave the United States the right to deepen the channels in the Maryland side of Conn's Island near its head, so as to supply the [651] aqueduct with whatever quantity of water the dams would yield. The claimants presented to the arbitrators title deeds and proofs, showing a valid title in it to the Toulson Tract, Conn's Island and the Cyclades. Objections were presented and urged on behalf of the United States, but the arbitrators held the title of claimants to be valid and satisfactory. No other title than that of claimant is asserted. The conduit through which the water supply of the City of Washington is drawn was completed on the 5th of December, 1863. On the 4th of July, 1864, Congress appropri ated the sum of $150,000" For the purpose of constructing the dam of solid masonry across the Maryland branch of the Potomac River, near the Great Falls, and for constructing the conduit around the receiving reservoir, and for paying existing liabilities and expenses, engineering, superintendence and repairs of said aqueduct." 13 Stat. at L., 384, ch. 244. On the 30th of July, 1864, the United States entered into a contract for the construction of that dam and, proceeding to construct it, took | removed to the successful completion of the possession of so much of Conn's Island as was work, upon which large sums had been exrequired for the purpose of securing the dam pended. In the opinion of the court below and and making a permanent abutment for it. And in the arguments of counsel, the authority of on July 28, 1866, the further sum of $51,687 the Secretary of the Interior to make the Govwas appropriated "To complete the dam in the ernment a party to that agreement is discussed. Potomac River at the head of the aqueduct, But, in the view we take, it is unnecessary to from the shore to Conn's Island, with cut stone.' ." determine that question. Our decision may be 14 Stat. at L., 316. The dam so constructed is satisfactorily placed on other grounds. about 1,176 feet long. It extends from a point From the report and documents transmitted on the Maryland shore, just below the feeder to Congress by President Fillmore, it appears or mouth of the aqueduct, across the channel that, in the judgment of the Engineer Departbetween Falls Island and Conn's Island, to its ment, the best mode of supplying the Cities of abutment on the latter island, closing the Mary- Washington and Georgetown with wholesome land channel of the river entirely across. It was water was by an aqueduct from the Great Falls constructed substantially in conformity with of the Potomac; also, that such a plan necesthe fourth of the alternative plans presented to sarily involved the construction of a dam at that the arbitrators by the United States. Conn's point in the river. Ex. Doc. (Senate), No. 48, Island, in connection with the Maryland shore pp. 2, 35, 48, 32d Cong., 2d Sess. By the anand the dam, forms such a basin as is necessary nual report, under date of Dec. 4, 1863, of Mr. for the purpose of supplying the aqueduct, hav- Usher, Secretary of the Interior, Congress was ing its upper end open to receive the flow of the informed that "Certain parties having from water as needed. There is no other island or time to time made claim to heavy damages for natural formation which could be utilized for the diversion of the water from the Potomac [652] forming a suitable basin without carrying the River," his immediate predecessor, "with a aqueduct much farther up the river. So that | view to settle and end this claim, entered into if that island was not used it would be neces- an agreement of arbitration with the claimants." sary to incur the expense of a larger aqueduct | The parties referred to were the present claimand to carry the dam across to the Virginia ants, as appears by the agreement of arbitrashore, either above or below the island, or build tion, by the official documents submitted to Consome structure to take the place of the island. gress, and by the proceedings in the courts of From any point below the rapids, the elevation Maryland for an assessment of the damages is insufficient to admit of the distribution of which the proposed dam should cause to the water by aqueduct; but there is sufficient eleva- | Great Falls Manufacturing Company. The Section for that purpose from any point above retary said: "Pursuant to this agreement, the them. The uses of the aqueduct require the arbitrators met from time to time, and finally entire flow of the water in the Maryland chan- submitted their award, by which they adjudged nel in the low stages of the river. The water in favor of the claimants upon each and all of [655] drawn through it is distributed in the Cities of the plans and modes submitted to them, being Washington and Georgetown for the use of the three (four) in number, for the construction of Government in its buildings, navy yard, foun- the dam across the Potomac, and also $12,000 tains, etc., and for the municipal and domestic for their own fees as arbitrators, and $761.84 uses of the said cities and their inhabitants. for the expenses of arbitration. The sums beThe cost of the present dam is $77,250, while ing large, I did not feel justified in applying that of the aqueduct is nearly four millions of the existing appropriation for the completion of dollars. the aqueduct to the payment thereof, preferring to submit the whole matter to Congress for its determination. It appears from the report of the experienced engineer in charge of the work, as must be obvious to every observer, that an ample supply of water for the use of the Cities of Washington and Georgetown, for many years to come, can be obtained from the Potomac by the erection of a tight dam, extending from the Maryland shore to Conn's Island, to a height which will give a head of six feet in the aqueduct, and yield a daily supply of 65,000,000 gallons," etc. After expressing the opinion that such a dam could not work injury to the The articles of agreement of November 20, proprietors of the water rights claimed at the [654] 1862, between the Secretary of the Interior and Great Falls, the Secretary recommended that a the Great Falls Manufacturing Company made reasonable sum be appropriated to pay the example provision for the protection of the pub-penses of the arbitration, and that the cost prelic interests; for the right was reserved to the party dissatisfied, to proceed by suit in equity in the proper court of this District for the purpose of having the award set aside or changed and of obtaining such a decree, subject to review by this court, as was just and equitable. There is no doubt of the good faith of the effort of the parties to accommodate their differences, or that it was of the highest importance to the Government that the obstacles should be It is also found as a fact that the value of the water for the uses to which this is applied is derived from its elevation, which will admit of its flow or descent through the city; and when found at sufficient elevation to admit of being distributed by its natural flow, it possesses great value and is paid for by cities, when taken from the control of private owners, according to its value. Upon this state of facts, the Court of Claims found, as a conclusion of law, that the claimants were entitled to the judgment from which the present appeal is prosecuted. viously estimated of a dam across the main In conformity with that recommendation, |