rader v. Goldstein, 31 Land Dec. Dep. Int. 87. This patent was issued April 29, 1902, to Thomas R. Lyons, town site trustee for the lot claimants of the town of Juneau, and is the patent referred to in appellee's motion to dismiss this appeal. The cause of action, as stated by the appellee as the plaintiff in the original complaint, was briefly this: That he was in the occupation and possession of certain lots in the town of Juneau under authority of law; that the defendant, the appellant here, had wrongfully entered upon the premises and filed her application in the land office, and entered the land as a mining claim. The amended complaint enlarged the statement of facts upon which plaintiff claimed the right to occupy and possess the lots in controversy, and demanded appropriate relief, but did not change the cause of action or the subject-matter of the controversy. The plaintiff claimed the lots under a town site entry made on October 13, 1893. The defendant denied plaintiff's right to the premises, and claimed the lots under a mining entry made on the 6th day of February, 1899. Conceding that the action was for the purpose of determining the right of possession, the controlling question was as to the mineral character of the land. This question was within the jurisdiction of the land department to determine, and, upon being submitted to that department in the proceedings for a patent, was determined adversely to the appellant by the Secretary of the Interior, that officer holding that the land was not mineral, and awarding the land to the town site trustee. This decision is conclusive as to the character of the land, and disposes of the controlling question involved in this case. The appellee in possession of the land has acquired title to it under the town site patent, and this action in support of his claim to have possession and receive that title has ceased to have a subject upon which a judgment of the court can operate. Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. Ed. 293. The appeal is therefore dismissed. (123 Fed. 402.) WOODS et al., Commissioners of Highways, v. ROOT, Secretary of War, et al. (Circuit Court of Appeals, Seventh Circuit. April 14, 1903.) No. 950. 1. REMOVAL OF CAUSES-FEDERAL QUESTION. A suit to enjoin officers of the United States charged with the construction of a government canal from changing the location of a highway bridge over the canal, in alleged violation of a decree of a district court in proceedings to condemn right of way across the highway, is one arising under the laws of the United States, and removable on that ground. 2. COURTS JURISDICTION-SUIT TO ENFORCE EXECUTORY DECREE OF ANOTHER COURT. An order made by a District Court of the United States in proceedings for the condemnation of right of way for a government canal across a highway, which requires the government to construct a bridge on the highway over the canal of a certain character, as shown by plans and specifications in evidence, is executory until the bridge has been constructed, and no other court, state or federal, has jurisdiction of a suit to enjoin its alleged violation, but application for its enforcement must be made to the court which entered it. Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois. The bill in this cause was filed originally in the Circuit Court of Whiteside County, Illinois, and on petition of appellees was removed to the Circuit Court of the United States, for the Northern District of Illinois, upon the ground that it was a suit arising under the Constitution and iaws of the United States. A motion to remand having been overruled, and a general and special demurrer to the bill filed, the Circuit Court ordered that the bill be dismissed for want of equity. From this order, and from the order refusing to remand the case, this appeal is prosecuted. The further facts are stated in the opinion of the Court. F. E. Andrews, for appellants. S. H. Bethea, U. S. Dist. Atty., for appellees. Before JENKINS, GROSSCUP, and BAKER, Circuit Judges. GROSSCUP, Circuit Judge, after the foregoing statement of facts, delivered the opinion of the Court. The bill shows that a public highway, dividing the two townships of which appellants are commissioners, and partly in each, crosses a feeder of the Hennepin Canal now in process of construction; that the feeder is three hundred feet wide, and has been condemned across the highway in the United States District Court, for the Northern District of Illinois, under an act of Congress providing that in acquiring the right of way across highways, the basis of condemnation shall be the construction and maintenance of bridges by the United States, as provided for by the detailed plans and estimates submitted to Congress; that at the trial in the District Court condemning the right of way across this highway, certain maps were filed, showing that the highway crossed the feeder, but nothing therein showing any intention to change the location of the highway, or to locate the bridge at any point other than within the limits of the highway as it existed prior to the commencement of the proceedings; that there was nothing in the evidence submitted to the District Court, nor in the detailed plans and estimates submitted to Congress, that showed any intention to change the location of such highway, or to build the bridge at any point other than within the limits of the highway as it then existed; that in the judgment entered in the condemnation proceedings, it was ordered that a good and sufficient bridge, and proper and safe approaches thereto, should be built and maintained across such highway, of sufficient width to allow teams to pass thereon; that the Secretary of War and his engineers, the other appellees herein, are about to change the location of the highway so as to make it conform to a bridge to be constructed across the canal at a point four hundred feet south-west of the center of the highway; that appellees are about to take out the portion of the highway that now crosses the canal, constructing the approaches to the proposed bridge at points as above described outside the present highway; that protests have been made. upon the part of appellants to the proposed change, but without effect; that the proposed change would increase the length of the road, make it crooked, increase the slope in the approaches, and make the roadway on the bridge and approaches so narrow that teams could not safely pass, thereby unreasonably obstructing the public travel and increasing the danger of accidents; and praying that the appellees, their successors, agents, and servants, be restrained from interfering with the highway at the point named, except to build and construct a bridge within the present highway over said canal, "at the place and in the manner specified in an order made by the Board of Commissioners of said towns of Coloma and Montmorency, July 14th, 1900." The case was rightly removed into the United States Circuit Court. It rises out of an order made in the District Court in pursuance of an act of Congress authorizing the condemnation of the highway for the purpose of a canal. The suit is one, therefore, arising under the Constitution and laws of the United States. But though the case was rightly removed, the jurisdiction of the United States Circuit Court is not thereby enlarged beyond the jurisdiction of the state court originally invoked. The United States court gets nothing by the removal; it sits only to determine what the state court might have determined but for the removal. The jurisdictional inquiry, then, is this: Had the Circuit Court of Whiteside County, but for the removal, jurisdiction to grant the relief asked upon the facts stated? In our judgment the state court was without such jurisdiction, not because it was a state court, and the defendants United States officers, and the subject matter of the suit an United States Work (questions we do not decide); but because the relief prayed for would be an interference, collaterally, with the execution of the condemnation proceedings in the United States District Court. The bill shows that in the condemnation proceedings there was involved the location of the bridge, the character of its structure, the location and character of the approaches, and all the details of construction essential to the preservation of the highway as provided for in the act of Congress. The direction contained in such decree, whether express, or by implication from the maps and plans exhibited, is executory; and the District Court is open to the appellants to apply for its enforcement. To allow the bill under consideration to lie would be to charge the state court, or, on removal, the Circuit Court of the United States with the execution of the District Court's executory order. The two Courts might disagree as to the order's meaning, its scope, or the manner of its enforcement, and a conflict ensue such as the policy of the law forbids. Until the order is fully executed, so that it is no longer within the power of the court, but has become a fixed right of the party, no question going merely to its terms, or the manner of its enforcement, can be entertained outside the court that entered it. The Circuit Court of Whiteside County was in this respect without jurisdiction. The order dismissing the bill was for want of equity; it should have been for want of jurisdiction. The decree of the Circuit Court is reversed, but without costs, with instructions that the bill be dismissed. for want of jurisdiction apparent on the face of the bill. (123 Fed. 79.) FAIRBANKS, MORSE & CO. v. STICKNEY et al. No. 1,814. 1. PATENTS-INVENTION-PRESUMPTION FROM GRANTING OF PATENT. A presumption of patentable novelty arises from the granting of a patent for a new combination of old elements, which can only be overcome by clear proof. 2. SAME-INFRINGEMENT-FRICTION-CLUTCH MECHANISM. The Hobart patent, No. 655,440, for a clutch mechanism, held to disclose invention and patentable novelty, and to be valid and infringed as to claims 3, 4, and 5, but void as to claim 6. 3. SAME-SUIT FOR INFRINGEMENT-COSTS. Where one claim of a patent is adjudged void in a suit for infringement, the complainant is precluded by Rev. St. § 973 [U. S. Comp. St. 1901, p. 703], from recovering costs, although other claims are held valid and infringed, unless a proper disclaimer as to the void claim was entered before the suit was brought. Appeal from the Circuit Court of the United States for the District. of Minnesota. For opinion below, see 115 Fed. 720. Paul Synnestvedt and F. W. H. Clay, for appellant. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. THAYER, Circuit Judge. This is an action to restrain the infringement of letters patent No. 655,440, issued August 7, 1900, to Frank G. Hobart, who assigned the patent to Fairbanks, Morse & Co., the complainant below and the appellant in this court. The invention covered by the patent, in the language of the patentee "Relates particularly to that class of devices which are designed to be used in connecting and disconnecting a moving or driving part with an idler part, or piece to be driven, and is of the class commonly known as 'frictionclutches,' * * * [and] has for its object, primarily, the construction of a device of the type mentioned which will be compact and economical in construction, reliable and efficient in its operation, and arranged to be readily thrown into and out of operation by hand." The patentee also says: "A further object of my invention is to provide a novel arrangement of parts in combination with improved devices, whereby great accuracy and security of adjustment are secured, and whereby compensation may be had for wear of the friction surfaces. A further object of my invention is the provision of a friction-clutch having a hand operating device which will be not only easy to manipulate, but also safe to the operator." Referring to drawings on the following page, which illustrate the complainant's device as well as the alleged infringing device, figure I in the drawing illustrating the complainant's device, represents a driving or power shaft; 2, a loose rotatable pulley mounted on the shaft, carrying a gear (indicated by figure 3) around which a belt may be passed. This loose pulley flares at one end, and has a recess therein in the shape of a truncated cone, into which a cone-shaped friction 11. See Patents, vol. 38, Cent. Dig. §§ 35, 53. 59 C.C.A.-14 sleeve (indicated by figures 4 and 5), that is keyed to the shaft, and rotates with it, but is capable of some longitudinal movement along the shaft, may be forced, and, by coming in contact with the inner surface of the loose pulley, compel it to rotate with the shaft. At the end of the shaft is a threaded extension or spindle, provided with two threads (figures 7 and 10) of different diameters and pitch. Engaging the larger of these threads, 7, on the spindle is a collar block, 8, which is held in place by a nut, 9, mounted on the smaller thread, 10, of the spindle. The collar block, 8, and the threaded extension or spindle revolve with the shaft. At the outer end of the spindle is a hand-wheel or nut, II, provided with a guard to protect the hand, 15, which hand-wheel or nut engages the small thread, 10, of the spindle. Toggle levers, 12, 12, connect the friction sleeve, 5, with the handwheel or nut, II. When the operator desires to start the machinery, he causes the friction block, 5, to move inward along the shaft so that it will engage the loose pulley, and cause the latter to revolve with the shaft, by simply grasping the hand-wheel, II, so as to prevent it from revolving with the spindle, whereupon the hand-wheel or nut travels or is drawn inwardly along the smaller thread of the shaft or spindle, the same being in motion, and by means of the toggle arms the friction sleeve, 5, is thrust against the inner surface of the driven sleeve or loose pulley, 2, binds it firmly, and causes it to revolve with the shaft, thus setting the machinery to be moved in operation. The patent contains, in all, nine claims which differ very little in phraseology, but we only deem it necessary to quote one of the claims. in full-the fourth-which will serve to illustrate what the patentee declared to be his invention. "(4) A friction-clutch comprising a driving-shaft; a loose gear or pulley mounted thereon; a sliding friction-sleeve mounted upon the shaft in position |