Opinion of the Court.

operation of that act, nothing should be done to impair the rights of the State above the Raccoon Fork until the differences were settled, either by Congress or judicial decision. For that purpose an authoritative order was issued, directing the local land officers to withhold all the disputed lands from sale. This withdrew the lands from private entry, and, as we held in Riley v. Wells, was sufficient to defeat a settlement for the purpose of preemption while the order was in force, notwithstanding it was afterwards found that the law, by reason of which this action was taken, did not contemplate such a withdrawal."

This has been and is the settled rule of the courts and the Land Department. It is only a recognition of the limitations prescribed in the statutes, for, by Rev. Stat. § 2258, "lands included in any reservation by any treaty, law, or proclamation of the President, for any purpose" are expressly declared to be not subject to the rights of preëmption, and § 2289, the one giving the right to enter for a homestead, limits that right to "unappropriated public lands." The fact that the withdrawals were made by order of the Interior Department, and not by proclamation of the President, is immaterial.

"A proclamation by the President reserving lands from sale is his official public announcement of an order to that effect. No particular form of such an announcement is necessary. It is sufficient if it has such publicity as accomplishes the end to be attained. If the President himself had signed the order in this case, and sent it to the registers and receivers who were to act under it, as notice to them of what they were to do in respect to the sales of the public lands, we cannot doubt that the lands would have been reserved by proclamation within the meaning of the statute. Such being the case, it follows necessarily from the decision in Wilcox v. Jackson that such an order sent out from the appropriate executive department in the regular course of business is the legal equivalent of the President's own order to the same effect. It was, therefore, as we think, such a proclamation by the President reserving the lands from sale as was contemplated by the act." These withdrawals were not merely executive acts, but the

Opinion of the Court.

latter one at least was in obedience to the direct command of Congress. Section 4 of the act granting lands to aid in the construction of what is now known as the Missouri, Kansas and Texas Railway Act of July 26, 1866, c. 270, § 4, 14 Stat. 290, is as follows:

"SEC. 4. And be it further enacted, That as soon as said company shall file with the Secretary of the Interior maps of its line, designating the route thereof, it shall be the duty of said Secretary to withdraw from the market the lands granted by this act in such manner as may be best calculated to effect the purposes of this act and subserve the public interest."

The map of the line of definite location called for by this section was filed on December 6, 1866, and the withdrawal followed in the succeeding spring.

Upon these admitted facts it is clear that Mr. Wood acquired no equitable rights by his occupation and settlement. He went upon lands which were not open to homestead or preëmption entry, and cannot make his unauthorized occupation the foundation of an equitable title. He was not acting in ignorance, but was fully informed both as to the fact and the law. He deliberately took the chances of the railway company's grant, being satisfied out of lands within the place limits, or by selections of lands within the indemnity limits other than this, and trusted that in such event this tract would be restored to the public domain and he gain some advantage by reason of being already on the land. But the event he hoped for never happened. The party for whose benefit the withdrawal was made complied with all the conditions of title and took the land.

The judgment of the Supreme Court of the State was correct, and it is

Affirmed.

MR. JUSTICE GRAY was not present at the argument and took no part in the decision of this case.

Statement of the Case.

UNITED STATES v. BERDAN FIRE-ARMS MANUFACTURING COMPANY.

BERDAN FIRE-ARMS MANUFACTURING COMPANY v. UNITED STATES.

APPEALS FROM THE COURT OF CLAIMS.

Nos. 128, 135. Argued January 7, 8, 1895.- Decided March 4, 1895.

Even if there were findings sufficient to show that the United States had in any manner infringed letters patent No. 52,925, granted February 27, 1866, to Hiram Berdan for an improvement in breech-loading fire-arms, in the absence of anything disclosing a contract the use would be a tort, creating no cause of action cognizable in the Court of Claims. Where several elements, no one of which is novel, are united in a combination which is the subject of a patent, and these several elements are thereafter united with another element into a new combination, and this new combination performs a work which the patented combination could not perform, there is no infringement.

As to letters patent No. 88,436, granted to Hiram Berdan March 30, 1869, for an improvement in breech-loading fire-arms, it appears that the use of that invention was with the consent and in accordance with the wish of the inventor and the Berdan Company, and with the thought of compensation therefor, which facts, taken in connection with other facts referred to in the opinion, establish a contractual relation between the parties sufficient to give the Court of Claims jurisdiction.

The contract was not a contract to pay at the expiration of the patent, but the right to recover accrued with each use, and the statute of limitations is applicable to all uses of the invention prior to six years before the commencement of the action.

The Court of Claims did not err in fixing the amount of the royalty.

THESE are cross-appeals from a judgment of the Court of Claims, entered December 8, 1890, in favor of the petitioner against the United States, for the sum of $95,004.36. The case as it was presented in the Court of Claims contained two distinct causes of action, each founded upon a patent issued to Hiram Berdan and by him assigned to petitioner. The first patent was dated February 27, 1866, being No. 52,925, and entitled "improvement in breech-loading fire-arms." The

Statement of the Case.

second was dated March 30, 1869, being No. 88,436, and entitled in the same way. The court found against the petitioner in respect to the first cause of action, and in its favor on the second. The findings of facts made by that court are quite voluminous, and it would needlessly encumber this statement to quote them all at length.

In reference to the first of these causes of action it will be sufficient to note these facts, taken from the findings, and which present all that is necessary for a determination of the questions involved. In January, 1866, the Secretary of War convened a board of officers of the army, of which General Hancock was named as president. This board, known as the Hancock board, was "ordered to examine thoroughly the following questions and make recommendations thereon:

"(1) What form and caliber of breech-loading arm should be adopted as a model for future construction of muskets for infantry?

"(2) What form and caliber should be adopted as a model for future construction of carbines for cavalry?

"(3) What form of breech-loading arm should be adopted as a model for changes of muskets, already constructed, to breech-loading muskets?

"Each person who submits an arm to the above board will be required to state in writing the lowest price at which it will be furnished in the event of its being adopted by the government."

It met at Washington on March 10, 1866. In the same month it issued a circular to the public, with the following blank form of proposal, to be signed by those presenting arms for trial:

66

of

being the proprietor of the

patent right to manufacture a breech-loading arm, known as heirs, executors, and assigns, to

do hereby bind

grant to the United States government, if called on within three years from this date to make such grant, the right to manufacture the aforesaid breech-loading arm on the following terms, viz.:

"For payment to

of

dollar per arm for the

Statement of the Case.

privilege of manufacturing fifty thousand; of

dollar

per arm for the privilege of manufacturing one hundred thousand; of dollar per arm for the privilege of manufacturing two hundred thousand; and of dollar per arm for the privilege of manufacturing any additional number of arms; provided, that when the government shall have paid the total amount dollars, counting each and every payment, then it shall have the full and entire privilege of manufacturing patented arms, for its own use, without further payment to patent right. Each payment, as above specified, to be made for not less than five thousand arms. Or, by the payment of

on account of

dollars within three years from this date, the privilege of manufacturing as many arms as may be desired shall be granted to the United States."

In response to the circular the petitioner, among others, on March 27, 1866, forwarded a communication, a part of which is as follows:

"The Berdan Fire-arms Co., of New York, New York, being the proprietor of the patent right to manufacture a breechloading arm known as the Berdan breech-loader, do hereby bind ourselves, heirs, executors, and assigns, to grant to the United States government, if called on within three years from this date to make such grant, the right to manufacture the aforesaid breech-loading arms on the following terms,

viz. :

"For payment to us of two dollars per arm for the privilege of manufacturing fifty thousand; of one and threequarters dollars per arm for the privilege of manufacturing one hundred thousand; of one and one-half dollars per arm for privilege of manufacturing two hundred thousand; and of one and one-quarter dollars per arm for the privilege of manufacturing any additional number of arms."

Later, and on May 21, 1866, it presented a gun, called No. 4, which, while similar in many respects to the one described in the specifications and drawings of the patent No. 52,925, differed in others. One of such differences is thus stated in the latter part of the fifth finding: