472 .terestto()ne whol15a.illtr1aJ;J.ger to the suit, tha,t the latter shall be into the place 'of the original .complaina,nt. The substitu· tion'· of Ross as complainant, wetbink, would have been proper if Walker, besides holding the legal title, had owned the entire '.beneficial interest in the patent. the others beneficially upon a full.statement of the facts, would have been proper, though not neceesary, co-complainants in the original bill. If they had been, and'there had been the same transfer of interest whicb,is shown to have occurred, a supplemental bill only would have been necessary in order to dismiss Walker from the record, and to enable the others interested to prosecute the suit; but Walkel'having brought the suit as if in his own right alone, and having transferred his interest and title to Ross, it was necessary and p1'Oper that the latter should come in under an original bill in the; nature of a supplemental bill, and having done so he is, in our. opinion, entitled to prosecute the action to the end, as if he had begun it. The decree below, should be reversed, and the order sustaining the demurrer to Ross' bill set aside, and it is so ordered. UNITED STATES' v. HALL et oJ. (01rcutt Court or Appeals, FI1'Ilt.Circult. Ma.y 115. 1894.) No. 85.
L
Owners. or a: vessel, who scuttle and, sink her In a. harbor while on fire, for the .purPO!l6· o:t sav\I\g. her rigg1ng,a1j.d. spars and. abandoning her to the und,er'Wpters,. may be compelled to remove the hull, as an obstruction to naviga.titJn, under Act Sept. 19, 1890, § 10. I. APPEAu-lRlIi'B:EARING.' . ·' A rehearing will not be ,granted, ordinarily, for causes not brought to the attention o(tbe the original a:rgument, or by the petitioner's brief.. Appeal' fro.fu the Circuit Court of the United states for the District of Maine. . ' .' .This was a'shit by the' United States against Hudson G. Hall and others to corQ.pel rewoval of .an obstruction to navigation. The circuit court disDlissed t,he bill, and a decree for defendants was en· tered thereon. The States appealed. Jaaac W. I)yer, for tlle United States. 'William H. folger and Benjan;J.in .Thompson,fol' appellees. Before PUTNAM, Oircuit Judge, and NELSON and ALDRIOH, . ,District J udge8. ALDRICH" District Judge. This. is a bill in equity based., upon the act of cl>llgress of. September 19, 1890 (26 stat. and instituted under the direction of theattouney general of the United to remove the hull of a vessel, States, toeompel the. which, it is claimed, exists as an obstruction to navigation, in Rockland harbor, on the coast of Maine, and comes by. appeal from the circuit court for that district.
NAVIGABLE WATERS-OBSTRUCTION BY SUNKEN VESSEL ){OVAL.
COMPELLING
RJIo
UNITE.O STATES 11. HALL.
473
The facts are, in substance, as follows: On the 8th of February, 1893, the three-masted and double-decked schooner, William H. Jones, sailed from Rockland, with a cargo of lime, bound for New \.ork. The next morning, when about 40 miles out, it was discov(>red that her cargo was on fire, when the vessel was put about, Realed, and headed for the home port, where she might lay at rest in quiet water, and the chances of saving the cargo and vessel be thereby promoted. She proceeded under sail on the homeward voyage as far as Seal h;ubor, reaching that port about 1 a. m. the following morning, and from thence was towed into Rockland harbor, and ·anchored off the breakwater, and more carefully sealed, that the fire might be smothered. A little later she was taken to the northerly part of the harbor, a little off the main channel, inside the breakwater, and anchored at a point used for navigation by the lighter class of vessels, and for winter anchorage. At the end of 21 days her cabin doors were opened, but again carefully sealed; and, with careful watching, she remained sealed until March 21st (38 days in all), when, as it was supposed the fire was smothered, arrangements were made to discharge her cargo. Between 3 and 4 o'clock of the same day, from the internal progress of the fire, and without warning, the mizzen mast fell, tearing up the deck, and breaking in the after house. Some of the owners were immediately called on board, and after consultation the vessel was scuttled at the place of anchorage, in 13 or 14 feet of water; the purpose being, according to the testimony of one of the defendants, to save the rigging and spars, and abandon the vessel to the underwriters. She was afterwards condemned by an underwriter's survey, sold at auction, and bought-in by the owners, who are the defendants in this proceeding, who stripped and abandoned her where she was anchored and scuttled, and where she now remains as an obstruction to anchorage and navigation. The evidence of the defense tends to show that after the fall of the mast the vessel could not have been towed to deep water, or left to drift into shoal water with the wind, without hazard to the property of others. But such hazard would not attach to the vessel lying and burning at anchor. The scuttling, therefore, was not to avoid peril, or to save the property of others, but to save the rigging, spars, etc., to the owners. From the beginning the effort was to save the property as a whole, and the harbor might well be used in a reasonable manner to that end; but when it was discovered that the vessel and cargo could not be saved, using the harbor of refuge as a scuttling place for the hull, in order to make the slight pecuniary saving which would result from stripping the vessel, under the circumstances of this case, was an unreasonable use of the public waters, and upon the principle of decided cases, involving analogous questions (Georgetown v. Alexandria Canal Co., 12 Pet. 91,97; Rex v. Ward, 4 Ado!. & E. 384. See, also, Bruckelsbank v. Smith, 2 Burrows, 656; Steamboat Co. v. Munson,· 117 :Mass. 34; Rex v. Watts, 2 Esp. 675; White v. Crisp, 10 Exch. 318, 2 Hawk. P. C. c. 75, § 11; 1 Russ. Cr. (9th Ed.) 532; Wood, Nuis. §§ 481-483; Gould. Waters, §§ 121-128; Ang. Tide Waters, pp. 111, 113, 115;
47tlJ
J'EDaBAIi REPORTER,
vol. 63.
Lord,Rale's Treatise, ,De. Fodibus Maris; Law Tracts, p;85),theobstrnction tesulting woUld.constitute a nuisance .at· the common law, 'l:!y the attorney general.: The ·. defendants also' cQntend· that there was a chance, and perhaps a probability, thatl:tlQer Yessel would have sunk before she could have been towed eithel'ito) shQalor deep water,; bJlt the voluntary and deliberate act of the. defendants, in scuttling her, relieves us of:iquesti<llls which might arIse from suc;h conditions. We are therefore not called upon to determine where the'!1'e8p(}DSibility would rest in a case where tbeV'essel' was being rem(,)V'edlfrom her anchorage and place of refuge to a point where the: hUll! would not be ain 'o])structio:p. to navigation, and, while the owners .were prosecuting ,such efforts,and in the exercise of due care, the ,Messel stranded,,:or sunk in watel's. The evidencein 1;l1e cause at bar::dQes not present a case of inevitable accident or,misfortune,such !ls,relieves the owner fl'omresponsibility in respect to. the obstrudi(l.n, n()r does, the evidence present an emergency whiehjuliltified tbei!\cuttling ot;! the vessel at the time and place, alil an act incident totherig4-t of navigation. As has been said, she<might have been left at anchor without danger to othel' property than that of the owners; and it is not clear that she might not have:burned througband filled sufficiently to extinguish the fire without sinking, in ;w,hich event she could have been towed to nonnavigable :waters and broken, or taken to deep water and sunk. Lti$·apparent from the evidence that the prime motive of the ownet1'!j in scuttling the vessel at the particular time and place, was to sai'Y'e, the, rigging and the spars, which otherwise would have bUl'lledwith the cargo. It is also apparent that the act was voluntaryand delil;Jel'ate, and.it is quite immaterial whether, as contended by the plaintiff, the purpose was to turn. her over to the government; and cast the bu m:l en of removalthereon, or, as conceded by the defense" to abandon, her to theunderwritefs. Some 'obligation restsllPon the government to keep the harbors clear forpnblic use, andthe obligation rests upon each individual membel'of the public, eEercising the l'ight of navigation, to have reasonable ,regard for puNic rights, as well as the common and equal rights of 9thershaving occasion to use the public waters. In othel'WOllds; he must not, act with reference to his own pecuniary advantage alone. While'Inembers of the public may use the harbor as a place or refuge and greater safety for the vessel and cargo in case of nece$sity and da!3tress, they may not, under the circumstances disclo$ed by the record in this case, use it as a scuttling place for the hUll, that the rigging may be. saved. . As has been said, such is not\:al'ight incident to the rig-htof navigation; and if, under such the owner sees fit to scuttle his vessel, that the wreckma&!'l:!estripped, he is boundto remove the obstruction, which, for'h:iltown slight pecuniary advantage, he voluntarily creates. In our :vlew,aection 10 of the act Qf September 19, 1890, was intended to apply to all obstructions of a permanent character not
DOUGJlERTY 'V. 'DOYLE.
475
'affirmatively authorized by law, willfully, wantonly, carelessly, or voluntarily created in the navigable waters, over which the United States has jurisdiction, not covered by:the specific ,provisions of the preceding sections in the same chapter; and it this construction that hulls of vessels sunk in harbors' not "UlroUgh perils of the sea, but by voluntary act of owners or their authorized agents, are obstructions, within the meaning of this section of the statute. It is not quite clear whether the court below, holding this view of the statute, determined the cause, and dismissed the bill upon findings of 'fact against the government, or 'whether the order of dismissal resulted from construing the statute as not covering obstructionsof the character disclosed by the record; but this is perhaps immaterial, for in either view it results that the decree of the eircuit .court must be reversed. The decree of the circuit court is reversed, and the case is remanded, with directions to enter a decree in accordance with the views herein expressed. On Rehearing. (June 14, 1894.)
xiii. The causes assigned in the petition, numbered 1 to 5, inclusive, were not brought to the attention of the court 'at the argument, -or by appellees' brief. To permit them to be argued now would split up the case in a manner which the proper progress of suits does not ordinarily allow of. Extreme cases may arise where this may be done, but this is not one of them, though it might be if this procedure was under the criminal provisions of the statutes, or if the joinder of defendants involved, as a practical result, a gross injustice. The remaining causes were fully considered by the court before its conclusion was announced. Ordered that, as none of the judges who concurred in the judgment in this case desire that the petition for a rehearing be granted , or argued, the petition is denied, and the mandate may issue forthwith. DOUGHERTY v. DOYLE et al. (Circuit Court of Appeals, Second Circuit. No. 155. PATENTS-INFRINGEMENT--MINCE-PIE COMPOUNDS.
.a rehearing filed in this cause by the appellees under rule 29,47 Fed.
PER OURIAM. The court has duly considered the petition for
September 12, 1894.)
The Allen patent, No. 268,972, for a dry mince-pie compound. in which dryness is made the essential characteristic, and the use of cider, except as contained In the desiccated a'Pplesformlng one of the ingredients, expressly excluded, is not infringed by a compound to which there is added 150 pounds of lJoiled elder to every 1,200 pounds of other ingredi· ents. 59 Fed. 470, affirmed.
Appeal from a decree of the circuit court, northern district of New York, dismissing a bill in equity for alleged infringement of