LEGAL PROTECTION FOR SEEDLING FRUIT. 261 



in a difficulty concerning the ancestry, heredity and the consan- 

 guinity of some seedling plant whose parentage is in dispute. So 

 it happened to me. About two years ago, while I was wholly ab- 

 sorbed in studying the workings of a hydraulic elevator, which it 

 was claimed had fallen from the fourth floor to the basement with- 

 out any scientific excuse, — while I was pondering over the conflict- 

 ing expert testimony which proved conclusively that the hydraulic 

 elevator had been guilty of doing what a hydraulic elevator could 

 not possibly do, one of my clients called on me and sprang a puzzl- 

 ing lego-horticultural question on me. 



Two men, living about thirty jniles apart, claimed, that while 

 working independently they had originated valuable seedling 

 plants which appeared to be of the same variety. About one hun- 

 dred miles from either of the alleged seedlings there were several 

 thousand yearling plants which each man claimed were regular 

 descendants of his particular seedling. One of the men claimed 

 that the other had no seedling at all, but had secured slips from 

 his seedling and propagated the yearlings a hundred miles away 

 without authority. The question was, could the sale of the yearlings 

 be enjoined and further propagation be prohibited? But since a 

 thief cannot be hung until he is caught, the first question was, could 

 it be proven that the yearlings were descendants of the seedling my 

 client was interested in? The first thing I did was to go to Secre- 

 tary Latham for an answer to the horticultural question, and to a 

 forty thousand dollar law library for an answer to the law question. 

 Secretary Latham told me frankly that he did not know and advised 

 me to see Prof. Green. Prof. Green did not deny that he knew all 

 there was to be known on the subject, but it was like pumping 

 water out of a dry well to get him to tell. By vigorous pumping, 

 however, I succeeded in getting Prof. Green to make an affidavit 

 which, to me, meant that, taking all things into consideration, it 

 was his professional opinion that some things are highly improba- 

 blei Prof. Green's affidavit set forth (at my request) his very ex- 

 tensive experience and opportunities for acquiring knowledge upon 

 the question involved, and by reading this affidavit to the judge 

 with great force and solemnity, I succeeded in getting the judge to 

 rule that Prof. Green was probably correct ! ! I remember, that at 

 that time I thought Prof. Green was rather unwilling to help me, 

 but I have concluded that his apparent equivocal attitude was not 

 so much due to unwillingness to aid me as it was to his regard for 

 his professional standing when making a sworn statement about a 

 matter concerning which absolute knowledge was practically out 

 of the question. 



There is no statute in this state, nor in any other that I know of, 

 which attempts to give protection to the originator of a seedling. 

 But, after careful consideration, I am of the opinion, that independ- 

 ently of any statute, by common law in this state a man who origi- 

 nates a seedling plant is the legal owner of such seedling and may 

 absolutely prohibit any one else from propagating any plants from 

 it, and may exercise as absolute control over the seedling and its 

 increase and the disposition of such increase as he may over a do- 



