346 
AMERICAN AGRICULTURIST. 
[July, 
The Driven Well Patent Declared Void. 
The IJ. S. Court decision which 
Favorahlj' Affects 50,000 Pro¬ 
perty Owners in One State Alone. 
As briefly announced in the June number of the 
American Agriculturist , the celebrated Driven Well 
Patent, granted to Col. Nelson W. Green, in 1868, was 
recently declared invalid by the United States Circuit 
Court for tho Southern District of Iowa, sitting at Des 
Moines. 
Over 300 causes were pending in this Court, princi¬ 
pally against farmers, for alleged infringement, and a 
very large number of similar suits were pending in the 
District of Minnesota, in which the issues were sub¬ 
stantially the same. For convenience, it was arranged 
that the causes should be heard at the same time before 
the Judges of the Minnesota District and the two Iowa 
Districts' sitting together. Accordingly a hearing was 
had last October, and the questions at issue were very 
elaborately presented. At that time there was pending 
before the Supreme Court at Washington, an appeal 
from the District of Indiana, involving this same patent. 
Judgment of the Court at Des Moines was withheld 
until the opinion of the Supreme Court should be an¬ 
nounced, in tho hope that a final and authoritative 
determination of the more important questions might 
be reached. The Supreme Court, however, stood equally 
divided in that case, and no opinion on the merits was 
announced. The Court at Des Moines therefore pro¬ 
ceeded to carefully consider the case at considerable 
length, in two opinions by Judges Sbiras and Love, 
against the validity of the patent, and in an opinion by 
Judge Nelson, in which he dissents from the views ex¬ 
pressed by the other two, the result of which was to 
dismiss the complainant’s bill with costs. 
M'lie Blcfeaice ofl" A1>iindonment. 
The Court consider first the defence of abandonment, 
and say that vigilance is necessary to entitle a man to 
the privileges secured under the patent law. He must 
not only show his right by invention, but he must se¬ 
cure it by the means provided by law; and if the inven¬ 
tion becomes known to the public, he should assert his 
right immediately, and take the necessary steps to le¬ 
galize it. The only safe rule which can be adopted on 
this subject is, that where the public use of an inven¬ 
tion is known or might be known to the inventor, he 
must be presumed to acquiesce in such use, and hence 
to abandon his claim. 
From the testimony upon this point, it appeared that 
Col. Green was engaged in the summer of 1861, at Cort¬ 
land, N. Y., in organizing volunteers for tho army; that 
his attention was called to the necessity of procuring 
pure water for the use of his men; that he set about to 
devise a means by which water could bo procured from 
beneath the surface of the earth, thus avoiding danger 
from poisoned wells, etc.; that the method devised con¬ 
sisted in driving a sharpened rod into the ground until 
it reached a water-bearing stratum, then withdrawing 
the same and inserting a tube, through which the water 
could be drawn by any ordinary pump. Tests of the 
method were made near the Colonel’s residence, and at 
the fair grounds in Cortland, where his regiment was 
encamped. One Graham, the sutler, put one down there 
in October, 1861, which was used by the men generally. 
When the regiment left there. Col. Green did not cause 
this well to be taken up. or to be in any way kept from 
public use or knowledge; on the other hand, he made 
provision for the use of these wells wherever the regi¬ 
ment should go, and procured materials and transporta¬ 
tion from the Government for the purpose. His own 
testimony is. that he explained his invention to his subor¬ 
dinate officers and to his drill squad; that he consented 
to the sinking and public use of the well at the camp 
ground, and that he never cautioned any one to keep 
the method a secret. There is nothing to show that he 
ever mentioned to any one the idea of obtaining a 
patent. On the contrary, everything that he did tended 
to spread the knowledge of this mode of making wells, 
without any intention on his part to restrict the right to 
make and use them to himself as a patentee. This was 
in 1861. He did not apply for a patent until May. 1866, 
not until his attention was called to the fact that through 
this method of driving wells, other parties bad reaped 
large benefits. This delay of over four years gave the 
public rights through the open use of the discovery. 
To constitute a public use, it is not necessary that more 
than one of the driven wells should be publicly used (104 
U. S., 333). There can be no question that Col. Green 
allowed his invention to go into public use without an 
immediate assertion of his rights. 
Conclusions oUt.lie Court. 
The Court therefore find, as conclusions of fact; 
1. That in 1861, Col. Green’s purpose in devising his 
method of driving wells was to furnish a ready means 
whereby the men of his regiment could procure a sup¬ 
ply of pure water, and that he did not at that time con¬ 
template procuring a patent therefor, and that he put 
his method of driving wells into public use in 1861, for 
the benefit of his regiment, and thereby dedicated or 
abandoned his invention to the public. 
2. That his invention was in open and public use,with 
his knowledge and acquiescence, for more than four 
years before he applied for a patent thereon. 
From these conclusions of fact, it necessarily follows, 
as a matter of law, that the patent must be held void. 
The Court next proceed to consider the claim raised 
by defendant, that the re-issued patent is broader in ita 
terms than the original patent, including improvements 
and principles not contained in the original specifica¬ 
tions, and is therefore void. Upon this point the Court 
conclude that the principle of the vacuum, which is 
now claimed to constitute the chief features and merit 
of the driven well, was not included nor contemplated 
in the claims under the original patent. Col. Green 
himself, in describing his original device, said: “My 
invention consists in driving or forcing an iron or a 
wooden rod, with a steel or iron point, into the earth 
until it is projected into the water, and then withdraw¬ 
ing the said rod and inserting in its place a tube of 
metal or wood to the same depth, through which and 
from which the water may be drawn by any of the usual 
well known forms of pumps.” There is not to be found 
in any part of the specifications any reference to a 
vacuum, nor any mention of atmospheric pressure cre¬ 
ated thereby. In all the evidence introduced, it is not 
shown that Col. Green, in making his experiments in 
1861, contemplated or conceived of the idea that the 
tube should be made air-tight, so as to create a vacuum, 
and thereby utilize the atmospheric pressure. He set 
up no claim of the sort, nor did he make even remote or 
indirect mention of it in tho specifications attached to 
his Original patent, and hence the original patent can¬ 
not be construed to embrace the application of the prin¬ 
ciple of the vacuum. Sut in the re-issued patent, the 
specifications cover broader and somewhat different 
ground, as follows: 
1. The process of sinkin wells by forcing down a rod 
or tube to the water-bearing stratum, without removing 
the earth upwards, as in boring. 
2. Creating a vacuum in the tube forming the lining 
of the well, by making the tube air-tight, except at the 
lower end, compacting the earth around the tube, and by 
attaching a pump with an air-tight connection to the tube. 
The main feature of the discovery is claimed to consist 
in the utilization of the atmospheric pressure, through 
the creation of the vacuum in and around the tube. 
The original patent did not embrace this. The re¬ 
issue then claims the application of an important prin¬ 
ciple not found in the original. A re-issue can only be 
granted for the same invention which was originally 
patented; if it goes beyond this, it is void. (1 Wallace, 
531; 102 U. S., 40S; 104 U. S., 350.) It follows that Col. 
Green’s re-issued patent must, for this reason, be held 
void. 
Not an Original Invention. 
Upon the question of originality of invention by Col. 
Green, the Court find, out of the mass of evidence ad¬ 
duced upon the point, two well authenticated instances 
of the use of an anticipating device; first, at Indepen¬ 
dence, Iowa, and second, at Milwa kee, Wisconsin, oy 
E. W. Purdy. The only issue about the well at Inde¬ 
pendence was as to the time it was put down, the com- 
‘plainants claiming that it was not until 1S66, the defen¬ 
dants alleging it to be in 1861. From the testimony of 
many witnesses who claim to have seen and used this 
well when the soldiers were enlisting at Independence, 
for the purpose of entering the Union army, who re¬ 
member the use of the well at the time of Col. Lake’s 
marriage—not disputed to have been in 1861—and who 
remember the use of the well by the cricket club which 
played on the grounds adjoining the lot in which the 
well was driven, and which club was broken up by many 
of its members entering the army in 1861, the Court 
hold as a conclusion of fact: 
1. That in the summer of 1861, there was constructed 
at Independence, Iowa, a driven well which proved a 
success. 
2. That this well was constructed by driving a tube 
down into the water-bearing stratum, and attaching to 
the tube a pump, by which the water was drawn up in 
apparently an inexhaustible quantity. 
In regard to the Milwaukee wells, the Court consider 
carefully the testimony of Mr. E. W. Purdy, which was 
in substance, that in 1849 and 1850 he was engaged in 
making wells at Milwaukee, by means of iron rods 
about two inches in diameter, the lower end being 
sharpened like a drill; the first rod was about 16 feet 
long. It was driven into the earth by working it up 
and down by a rope over a gin-pole, and in this way the 
earth was displaced as the rod went down. Tubing was 
driven down as the rod progressed, which formed the 
lining of the well. No earth was removed upwards. 
When the tube struck water, if it did not flow to the 
surface, a pump was used, the tube to which the pump 
was attached being placed inside the tube first forced 
down. Many of these wells were thus made. 
Comparing this method of driving wells, and its re¬ 
sults, with that adopted by Col. Green in 1861, as de¬ 
scribed in his original patent, the Court confess their 
inability to see any substantial difference. Green ex¬ 
pressly claimed in his original patent the process of 
sinking wells by driving or forcing down a rod to and 
into the water under the ground, and withdrawing it 
and inserting a tube in its place, to draw the water 
through, and it was just this process in substance that 
was employed in Milwaukee. The difference was only 
in minor details. Hence it follows that Green’s process 
was substantially only a reproduction of a method 
which had been devised and placed to public use fully 
ten years prior to the time he hit upon the same expe¬ 
dient. It therefore results that the defence, for want of 
novelty, must be sustained, and the patent held void. 
CoacniTiiis' Opinions. 
The opinion of the Court was delivered by Judge 
Shiras, of the Southern District of Iowa. Judge Love, 
of the Northern District of Iowa, filed also a separate 
opinion, in which he fully concurs in all the points 
touched upon, and adds at some length his own view, 
that Green should be held to have abandoned his inven 
tion, even though he did not know or assent to the use 
of it during the period between 1861 and 1866, when he 
applied for a patent. The Act of 1839 was then in 
force, and according to the Judge's construction of that 
Act, the public use of an invention for two years even, 
without the consent of the inventor, is sufficient to in¬ 
validate the palent. 
Judge Nelson, of the Minnesota District, dissents in 
a short opinion, in which he says he regards Green as 
the original inventor of a patentable process, which 
was duly patented and re-issued; and because, prior to 
1870, it was generally understood that a use of the in¬ 
vention for more than two years prior to the application 
for a patent would not defeat the patent, unless the use 
was had with the consent of the inventor, which was 
not proved in this case; and also because the Milwaukee 
wells were artesian wells, and Green's process was not 
then used; and because prior use should be established 
by more than mere preponderance of evidence, and the 
proof of prior use at Independence leaves fair room for 
doubt. 
The Question Practically §eltled. 
It is probable that this is practically the end of the 
driven well litigation. If an appeal is taken to the Su¬ 
preme Court, that Court cannot be equally divided, as it 
now has nine members. Justice Harlan, of the Supreme 
Court, recently denied an injunction in a driven well 
case at Indianapolis. 
All this will be of much interest to the great number 
of farmers involved in the matter. It is estimated that 
there are over 50.000 driven wells in New York State 
alone. The agents of this patent have forfeited all 
moral right to any sympathy, and it would seem that 
their legal rights are in a fair way to be properly ad¬ 
justed. Our advice to farmers is to still resist. 
Using: tlie Windfalls. —A friend of ours 
in Indiana has extensive orchards, which he manages 
for profit. One of his minor savings is his use of the 
windfalls, and this, in the course of the year, amounts 
to an important item. Every few days, after the fruit 
is large enough to be blown off, they are gathered. In¬ 
stead of feeding these directly to the pigs, they are 
ground in a hand cider-mill, the juice pressed cut, and 
the resulting pomace then goes to the pig-pen. The 
juice, or cider, goes to the vinegar-house, where, while 
it does not make as good vinegar as the cider from ripe 
apples, it produces a much better article than is usually 
sold, and may be mixed with other vinegar to advan¬ 
tage. The gentleman referred to applies business judg¬ 
ment to the management of his orchards, and disposes 
of their products as seems most profitable. If it is a 
year in which apples (and he cultivates his orchards and 
always has fruit) bring satisfactory prices, he barrels his 
fruit and sends it to market. If the returns show that 
the fruit is worth more to him at home, the apples are 
at once converted into cider, and the cider into vinegar. 
Having ascertained that, as a rule, he can get more for 
the product of his orchards in the form of vinegar, he 
has a vinegar-house arranged with every appliance 
needed for vinegar making. Experience has taught him 
that in most years vinegar is the most profitable form in 
which to market even his good apples. But then he 
has established a reputation for his brand upon both 
apple and vinegar barrels. 
