
    WILLIAM TALBERT v. THE UNITED STATES.
    [No. 15220.
    Decided February 10, 1890.]
    
      On the Proofs.
    
    A ship-carpenter for Ms own private yard invents an improvement in marine railways. Before applying for a patent he goes into the Government service. While he is procuring a patent, the Chief of a Bureau orders the construction of the appliance with an agreement that if successful he shall receive for its use “ outside prices ; ” if not, he shall pay for the trial. The device is used for many years. Congress pass an act conferring jurisdiction and directing the court to award judgment “ aeoordiny to Us value to the Government.”
    
    I.Where an invention is adopted by the Government with the inventor’s consent, and with knowledge that he intends to take out a patent, and with the understanding that if it succeeds he shall be paid a royalty, a contract may be implied.
    II.Where an invention is made before the inventor enters the service of the Government, and is adopted by the proper officers with the understanding that a patent will be taken out and compensation shall be paid, the case is distinguishable from Solomons (22 C. Cls. R., 342) and an action may be maintained.
    III.Where an inventor consents to the use of his device before a patent has been applied for, but coupled with a condition that he shall be paid for it when patented, the defendant does not acquire an implied license nor a right to gratuitous use under the Revised Statutes, § 4899.
    - IV. Talbert’s device of movable blocks running on a marine railway so arranged that they can be bunched at its lower end, is a distinct device from Turnbull’s, where the cradle of the railway is cut into sections.
    
      V. An act confers jurisdiction of a patent case and directs the court “ to award judgment thereon as the merits of the case may demand according to Us value to the Government.” The measure of damages intended is the value of the invention as such inventions'are usually paid for by ordinary manufacturers.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. Plaintiff is a resident of the District of Columbia; by occupation a ship-carpenter. As a ship-carpenter he was from time to time, between the years 1833 and 1882, employed at the Washington navy-yard, situated upon the Eastern Branch of the Potomac River. In 1N60, when not in Government employment, he contemplated establishing at Washington, upon said Eastern Branch, a small ship-yard of his owu for the purpose of hauling out and repairing vessels. In measuring for the track of a marine railway he found that, owing to shallow water, he could not get a sufficient length of track to take out vessels of considerable size without obstructing said Eastern Branch. Seeking to avoid this difficulty, he invented an improvement upon marine railways, of which he made drawings, and which is hereinafter described. Afterwards, and at the beginning of the late war, finding that there was sufficient work to give him employment again in the Washington navy-yard, he decided to postpone his private enterprise and to resume work in the navy-yard. While so employed he found the difficulty existed at the navy-yard which he had expected to encounter at his projected ship-yard, to wit, a want of sufficient depth of water at the foot of the marine railway for taking up vessels of deep draught and considerable length. The same difficulty was recognized by the Government officers as existing at the navy-yard, and for that reason they, in 1862, employed one Bishop to construct upon the cradle of the railway a device intended to remedy the difficulty. The Bishop device failed; it was crushed at thefirsttrialbythevesselplaeeduponit. Talbert’s device was then (and during the winter of 1862-1863) put upon the cradle after he had instructed an attorney to apply for a patent, but before he received the patent. The officers of the Navy knew of his intention to procure a patent before they used his device. The device was put upon the railway by Talbert, under direction of Rear-Admiral Smith, then chief of the Bureau of Yards and Docks, with the understanding- and agreement between him and Talbert that the latter "should be allowed as compensation (if the invention should prove to answer the purpose for which it was intended) “outside prices” for the work done by it. If the device failed Talbert was to pay for the trial. Talbert asked that his device be not used until his patent issued, but Admiral Smith stated that imminent national necessity required immediate use of the device and told him to place it immediately upon the cradle. Application for patent was filed in Patent Office in March, 1863.
    II February 27, 1869, plaintiff asked compensation for the use of his invention. This request was refused by the Secretary of the Navy upon the following ground:
    
      “ It appears that you were in the employ of the Government when you suggested the use of your appliance, and it was used while you were so employed. Employés of the Government are prohibited from receiving compensation, unless by special act of Congress, for any inventions that the Government may use.
    “ This Department would not be authorized to grant you compensation.”
    A subsequent application to the Navy Department for remuneration was refused upon substantially the same ground. Plaintiff then applied to Congress for relief. Talbert’s improvement was put upon the cradle at the Washington navy-yard late in the winter of 1862; it has been in use there ever since. All vessels which have been taken out of the water for repairs at the Washington navy-yard since the early part of 1863 have been taken out by the use of Talbert’s device.
    III. February 2, 1864, Talbert obtained a patent, numbered 41452, from the United States for the “improvement of marine railways,” of which he was the original inventor. The following are the drawings, specifications, and claims filed in the Patent Office describing said invention :
    [Letters Patent No. 41452, dated February 2,1864.]
    “'IMPROVEMENT in marine railways.
    “Figure 1 is a side elevation of a marine railway with my improvements, and showing the movable blocks or cars in their proper places to support a vessel on the cradle. Fig. 2 is a plan or top view showing the movable blocks or cars run together next to the stationary blocks, ready to take on a vessel. Fig. 3 is a cross section on z z, Fig. 1. Fig. 4 is the under side of the movable block or oar; Fig. 5, portion of the track ; Fig. 6.. a wheel axle and box.
    “ The nature of my invention and improvement in marine railways consists in making a railway or track on the cradle for about one-half its length at the upper end and providing one,, two, three, or a series of movable blocks or oars to run on said railway-track, which movable blocks or cars are so constructed and connected by chains fastened to each side that they may be placed together on the lower end of the railway-track (when the cradle is run down or jdaced at the foot of the marine-railway) where the fore foot of a vessel is placed on the upper movable block or car, which is drawn up taking the vessel with it onto the cradle, and when the first block has moved a proper distance the chains start the second movable block, and when-that has moved a proper distance the chains start the third block, and so on in succession, until all the movable blocks are properly placed and arranged under the keel of the vessel aud she has. been drawn onto the cradle.
    “In the accompanying drawings, which represent a marine railway with aeradle upon it provided with my improvements,. ■Ais the center piece, and B B the side rails of the cradle, which are connected together by the bars C C, which Save scores cut across them so as to lock onto the center piece aud side rails; and there are also scores cut in the center piece and rails to receive the bars O 0, and they are all bolted togetherr making a strong frame or cradle. The side pieces, 0 0, at the upper end of the cradle, are connected to the center piece. A, by the diagonal bars D 1), which are firmly fastened to the center piece and side rails, and also to the upper bar 0 by knees aud straps which are strongly bolted to them, and also by metal plates placed top and bottom aud bolted through, as shown in the drawings. On the under side of the center piece and side rails a series of stands are fastened and provided with wheels E E, which roll on the marine railway-track as the cradle is moved up and down the track. On the top of the-upper portion of center piece, A, for about one-half its length-(more or less), I fasten a railway-track, F, provided with a rack between the rails. The movable blocks or cars G G are provided with wheels to run on the track F, which cars aré connected to each other and to thé first stationary block EL by the chains 11, aud when the cars are run to the lower end of the track these chains fall each side of the centerpiece, A, and troughs may be arranged on the center piece to receive them. The first or upper car G- is made twice as long as the others,, to receive the forefoot of the vessel; and this car is provided with an eyebolt or staple, J, by which it is drawn on the rail-track F. Between the stationary block H and the lower end of the cradle there are a series of stationary blocks, H H, as shown in the drawings, fastened to the center piece, A.
    
      
      u There are a series of scores in the center piece, A, and corresponding scores in the side rails, B B, for the ways K K of the bilge-blocks L L, which ways may be made in the form shown in the drawings, and the ends at the center piece are held down by the track P and by the brackets M M below- the track P towards the lower end of the cradle.
    “ The ways K K are fastened to the rails B B by knees fastened to the side rails to hold them in their proper places. There are some rails fastened on the ways KL K with a rack in the middle of the pawls on the bilge-blocks, which run on the rails and are held down by brackets fastened to the bilge-blocks, so as to project under the rails on the ways. There are some standards, 21 N, at the ends of the ways K K, to which standards the lines which traverse the bilge-blocks and raise the pawls to them are fastened, and some pulleys may be fastened to the ways K K to guide the bilge-block lines. A pawl is attached to the rear or lower end of each of the cars G G, which falls into the rack between the track P to prevent the cars from running back when they are drawn up, and the upper car, which receives the forefoot of the vessel, may have" six or more wheels under it. On the upper end of the upper car I erect a graduated standard, P, as shown in the drawings.
    “ To use my improvements in taking a vessel up on a railway, I run all the movable blocks or cars against each other at the lower end of the track P, and then run the cradle down the railway until the standard P on the upper car indicates sufficient water on the upper car to receive the forefoot of the vessel, and then haul the forefoot of the vessel onto the upper car, and apply power to the car and haul it up on the track P, drawing the vessel with it, and as the chains which connect the.cars are drawn tight or straight the cars move forward in succession and are arranged at proper distances in succession on the track. When the vessel has been hauled her whole length on the cradle the power is applied to the cradle, and it is drawn up on the tailway ; and when it is apparent that the keel of the vessel at the stern rests on the cradle, so as to lift her up in the water, the bilge blocks should be hauled under to hold the vessel upright on the cradle. When the cars are drawn up on the track P, the pawls on the rear ends of the cars catch in the rack between the track P and hold the cars from running back. When the vessel is ready to be launched the pawls on the cars must be all triced or tied up, so as to leave the cars free to run to the lower end of the track P as the vessel runs off of the cradle.
    “ I believe I have described and represented the improvements in marine railways which I have invented so as to enable any person skilled in the art to make and use them without further invention or experiment.
    
      “ I will now state what 1 desire to secure by letters patent— to wit:
    
      “ 1. Iu combination with the cradle of a marine railway, a rail-track on the cradle, with one, two, three, or more movable blocks or cars, for the purpose of taking the forefoot of a vessel, with the vessel itself, onto the cradle, substantially as described.
    “ 2. In combination with the above-mentioned movable blocks or cars, the chains which connect the cars aud place them at proper distances apart under the vessel as she is drawn onto the cradle, substantially as described.
    “ Wi. Talbert.”
    IV. Plaintiff’s invention was applied as follows: The railway at the navy-yard was the ordinary marine railway, consisting of three heavy parallel timbers leading from the water up the bank, the middle one being 28 inches wide and the outside ones being each 14 inches wide; upon these timbers were iron rails. The track was about 450 feet long; it ran upon a grade of five-eighths of an inch to the foot, sloping downwards towards and into the Eastern Branch of the Potomac River. Prom high-water mark it extended about 200 feet into and under the water. The Cradle was placed upon the track and corresponded with it. It was made of three heavy pieces of timber laid lengthwise upon the rails of the track and securely fastened into a framework. The whole frame-work moved upon heavy iron wheels upon the three rails of the track. The wheels on the center rail were 6 feet apart, and upon the side rails there was a wheel under each bilge-block. The bilge-blocks were intended to be moved in by sliding against the hull so as to hold the vessel in place and upright after she grounded upon the center timber of the cradle. Before Talbert’s device was applied there were fixed upon the center timber of the cradle heavy stationary blocks 5 feet apart the whole length of the cradle. These blocks were 2 feet high, the keel of the vessel grounded upon them, and their office was to bear the weight of the ship and to give room between the ship’s keel and the cradle, to allow work to be done on the under side of the vessel. In preparing the cradle to receive his improvement, Talbert removed the stationary blocks from the center timber of the cradle for a distance of 100 feet from the head, or upper end, of the cradle and placed a cast-iron track upon the center timber of the cradle, with a rack in the center to hold a pawl attached to the after end of the forward car. The stationary blocks on the after end of the cradle (the end nearest the water) Were left as they were origi«ally on the cradle. The tops of the cars were on the same plane as the tops of the remaining blocks. The cars were fastened one to another by chains of convenient length.
    Y. At the Washington Navy-Yard there was bat 3 feet of water upon the upper end of the cradle when immersed, and, prior to the adoption of Talbert’s device, vessels drawing more than 3 feet of water and 200 feet long could not be taken out. Yessels drawing 5 feet of water and 150 feet long might have been taken, upon the after end of the cradle, but not sufficiently high up on the cradle for efficient work upon them. By the use of Talbert’s improvement vessels drawing 13 feet of water and 250 feet long were taken up so as to be efficiently repaired.
    YI. The Washington ítavy-Yard was thoroughly furnished with the best shipwright’s tools and latest and best machinery ;and was equipped as a private proprietor would not equip his ship-yard for ordinary busines. But for Talbert’s improvement, or its equivalent, the use of the yard would necessarily have been limited to the repair of the small vessels which could have been taken up on the cradle withe ut that improvement.
    During the war gun-boats were repaired at the Washington yard which it would have been difficult to repair at private yards in time to meet the exigencies of the service, and which could not have been repaired at the Washington yard without using Talbert’s or a similar device. The ability to repair their vessels at the Washington Navy-Yard, especially during the active operations of the war, was of service and value to the Government.
    YII. The Talbert invention was novel and useful, and was the product of original thought and inventive skill. Talbert never made or attempted to make any other use or profit out of his invention, and it does not appear that the invention ever has been used elsewhere than at the Washington navy-yard. The expense of putting the device on the cradle was borne by the Government. Talbert remained in the Government service as a ship-carpenter until 1882, and received the pay of a ship-carpenter.
    YIII. The value to the Government of plaintiff’s patented improvement for marine railways during the existence of his patent was $6,544.30, being 2 per cent, upon the amount earned by the railway cradle as improved during said period.
    IX. One Robert Turnbull, of Harwich, Essex County, England, obtained in England letters patent sealed March 10,1857, and dated 18th January, 1857, for an invention of cradles for heaving up ships. The following are the drawings, specifications, and claims upon which said letters patent were granted r
    ["Letters patent filed by Robert Turnbull in the great seal patent office on the 8th July, 1857.j
    “ My invention of improvements in ships’ cradles refers Ur cradles placed on inclined ways or rails for heaving or drawing up ships out of the water, and has for its object to enable-the heaving up of a ship drawing more water than can be effected by the ordinary cradle on the same ways. I construct a cradle for this purpose in parts, so that the one part may separate a certain distance from the other, while at the same-time the parts of the cradle are suitably tied and held together to limit the separation and to beep them in their proper relative position while either elongated or contracted ; when contracted, the cradle is considerably less in length than the ship-which may be lifted on it.
    
      “ In placing a ship on the cradle, the parts of the cradle are brought close together and lowered down the ways, and the ship brought over it, so as to ground or take the front part of the cradle with her fore foot a little in front of the fore part of the cradle, her stern at the time projecting a considerable distance beyond the after end of the cradle. The cradle being now hove up on the fore part advances up the ways, and lifts the fore part of the ship, the after part at the time being afloat and not on the after part of the cradle. During this time the other parts of the cradle remain stationary, and until the fore part has advanced, say about fifteen or sixteen feet (the limit of its sliding connecting bars). Having arrived at this limit, the second part of the cradle follows the first up the ways and separates from the after part until it has moved the distance, say of ten or twelve feet, as limited by the connecting bars y the whole cradle now (if in three parts) moves together. By this time the stern of the ship will be brought immediately over the after part of the cradle, on which she settles or grounds, and is supported as in ordinary.
    
      “ By forming the cradle in three or more principal parts support is given to the vessel at suitable points, without much-intermediate space between the parts when separated, while-at the same time affording considerable extent of elongation.
    “ If the cradle is divided in two parts it will in some respects answer the purpose, but I think with less advantage than if further subdivided. It there is plenty of water for the ship to-come over the cradle it may be adjusted and fixed at once to the length of vessel to be raised. The parts of the cradle should be adjusted so that the extent of their separation should be suited to the length of the vessel to be hove up.
    
      “ Figure 1 represents a side view of a cradle for heaving up ships, constructed according to my invention, with a ship in position about to be hove up-; figure 2, a similar view of the cradle, with the ship partially hove up; and figure 3, a like view, with the ship in position about to ground on the..whole length of the cradle, while figure 4 represents an end view of the same.
    “ This cradle is formed in five principal parts, A, B, O, D, and E.
    “ In figure 1 the cradle is represented íd its shortest form, with these several parts close together; in figure 2, the fore •parts A and B have separated from the after parts 0, D, and E, while in figure 3 the whole of the parts are separated to the utmost limit, and with the cradle extended to its extreme length.
    “ Figure 5 represents a plan of the cradle with the parts in position, as at figure 3; and figure 6 represents a part of the detail on an enlarged scale. The general construction of the parts A, B, 0, D, and E is the same as that of cradles in ordinary, consisting of three principal longitudinal timbers, which in ordinary cradles are in one piece from end to end, and unite the whole cradle together, but which, according to my invention, I make in short lengths a b c, as best seen in the plan, figure 5.
    “ These timbers are furnished with wheels or rollers, d d d, which are mounted on and traverse the rails or ways F F as usual; the longitudinal timbers a, b, and c are connected by the tranverse timbers e e, on which the sliding chocks//rest; the timbers e e are fitted and secured to the pieces a, b, c in the ordinary manner, so that they may be readily taken to pieces when required; and I further strengthen each part of the cradle separately by iron cross ties, g g, which may be fitted into metal sockets, so as to be readily removable. The fore part, A, is also furnished with two stays, h h; the cross timber i of the after part E, I form a fixture with the side pieces a' V o', which keeps the whole of the longitudinal parts together when traversing the cradle from under ship.
    “ The parts A, B, O, I), and E are connected together by longitudinal tie rods, 7c 7c 7c, of iron, one of which is represented on an enlarged scale at figure 6, as connected with parts of the middle longitudinal timbers b b; these rods are fitted with iron socket pieces, l and £'; the one end being fixed by cotters, n n, in 7, while the other end is free to slide in V, but is furnished with a head, m, by which it is prevented being drawn out or beyond the position shown in figure 6; the socket pieces, which are fitted to the middle timber b, are recessed into that timber, so that the rod 7c is entirely below the blocks p p, on which the keel of the ship rests ; the sockets being so recessed into the timbers are secured by through bolts q passing through the feather or thin part of the socket. The timber b is so recessed throughout its length so that the rod 7c may be slid its whole ■length therein.
    “ The socket pieces l V, and rods 7c 7c, of the side timbers a c, are similarly fitted and fixed, but so that the rods 7c project i from the sides; the rods 7c so fitted permit the parts of the cradle A, B, O, D, and E to approach close to each other, as at figure 1, or to separate to a distance from each other, as at figure 3; r is a chain attached to the after part E, and carried underneath the parts BOD, and connected with a short piece, s, and secured and held thereto by a stopper to retain the whole of the parts close together; itare the palls as used in ordinary cradles, which take into racks on the ways to hold the cradle after partially or entirely heaving the ship up.
    
      u The several palls of each part are connected with a rope or cord carried up to high-water mark. When the cradle is lowered down these palls are secured in a raised position, and so-held by the cords, and are let go in succession as the several pieces A, B, O, D, and E ascend the ways, and as it may be desired to hold the ship when fleeting the heaving purchase.
    “ When the cradle is let down the ways for the purpose of heaving up a ship, the several parts, A, B, O, D, and E, are brought close together, as at figure 1, and secured by the chain r s, and then lowered; the ship is then floated over it, and her fore foot entered between the guide pieces n u, and grounded on the fore part A with the water-line, as shown at 11; the chain v is then hove upon previously to heaving upon the chain v ; the chain r s, which holds the parts of cradle together is now let go by the stopper before mentioned, a rope being carried up to high-water mark for that purpose. By heaving on the chain v, or other purchase by which the ship is hove up, the fore part A will pass up the ways with the fore part of the ship grounded upon it, leaving the remaining parts, B, C, D, and E, as at first lowered; this proceeds until the parts A and B separate to the-extent limited by the sliding-bars 7c between those parts; the further heaving up now separates the parts B and 0, the part B proceeding up the ways, leaving the remaining parts, 0, D,. and E, behind, until the full extent of separation limited by the sliding-bars 7c between the parts B and O, and as represen ted in figure 2, in which it will be seen that the ship is partially raised and drawing less waterforward than aft, as marked by the waterline 1 2. In this manner the heaving up is conducted until the several parts of the cradle are entirely separated from each other, and it is extended to its full length, and to the length of the ship, as seen in figure 3, in. which position the vessel is about to ground on the full length of the cradle; to is a guide for setting her fair on the blocks at the after end.
    “ The water-line 1 3 shows the level and probable depth of her immersion at this time. After the separation of the several parts A, B, 0, D, and E, and after the ship takes the blocks aft, I bring forward the sliding chocks ff by the chains at-t ached thereto, as well understood in lifting ships with ordinary cradles.
    “ After the ship fairly settles on the cradle, she is hove out ot water on the cradle as so extended. When raised to the point required, I now shore her up at the several points between the parts A, B, C, D, and E, of the cradle, and when so properly shored and lifted from the cradle, I remove all the cross-timbers of that structure, except the afterpiece i ; I also remove the cross-stays g g, when the longitudinal timbers still connected by the sliding-rods k k may be traversed down the ways from under the ship, and', may be again put together to heave another ship up on the same ways if the first is carried sufficiently high above high-water mark, or the first ship may be hove in a direction transverse to the inclined ways on ‘ hollows and rounds,7 or on other suitable parts whereby she may be so moved out of the way of the succeeding operation.
    “ In cases where the incline of the ways is not very steep, or from other causes the weight of the parts of the cradle is insufficient to carry it down, I place an iron sheave or pulley at the lower end of the ways and pass a chain over it, the one end of which I attach to the lower end of the cradle, and- carry the other end up above high-water mark, whereby’ the cradle may be assisted in the descent. Before lowering the cradle the several parts A, B, O, D, and E are placed close together and secured by the chain r s and chain stopper, as before explained. Thus it will be seen that supposing the limit of the ways to be at X, say at low-water mark, the forepart of the cradle will be much nearer that point by reason of the contraction of the cradle than if it were of the full length of the ship to be lifted, and that therefore a ship may be lifted by this means, which, by reason of her draught of water, her steru, of necessity, projects beyond the lower end of the ways a considerable distance, as seen in the drawing, figure 1, and whereby I am enabled to lift a ship, which otherwise would not be within the limirs of the ways and cradle.
    “ In addition to this advantage with cradles, according to my invention, I am enabled to shore up a ship more readily and more easily to remove the cradle from under her after she is hove up than is the case with ordinary cradles. The launching of ships on my improved cradle is conducted in a manner inversely to that described with reference to that of heaving up, and will not require any further description.
    “ I would remark that, although I have represented the cradle in the drawing as divided into five parts, it may be otherwise divided, that is to say, separated into two, three, or more parts for the purposes described; and also that the length of the cradle may be varied by’ adding to or reinoviug one or more of the separated parts, and also that the length of the cradle when extended may be limited byr varying the length of the sliding-bars or the extent of their sliding movement.
    
      “ Having described the nature of my invention, and the manner in which the same is to be performed, 1 would have it understood that what I claim as my invention, to be protected by the hereinbefore in part recited letters patent, is the construction of cradles for heaving up ships in parts, whereby they may be extended or contracted, for the purposes and as hereinbefore described.”
    It would have been unsafe to let one of the Turnbull sections run beyond the end of the railway into the mud or sand, while Talbert’s device might have been applied to a solid cradle which with safety could have been run for a part of its length beyond the rails. It is the custom on some marine railways to run a portion of the cradle beyond the rails. Talbert’s device involved no weakening of the cradle. To get the same depth of water on the head of the cradle as is got by Talbert’s device at the navy-yard, Turnbull, by cutting it into enough sections, would have weakened the cradle. Turnbull could not conveniently block up a vessel in case of unequal distribution of weight without blocking from the ground and so preventing any movement of the cradle upon the track; this difficulty would increase with the number of sections, and in some instances it would be necessary to block from the ground; while, by the Talbert device, a vessel could be blocked up between the carriages, the timbers resting upon the top of the cradle-bed and not interrupting the advance of the cradle itself upon the rails. If the cradle be cut into sections, as in Turnbull’s device, the wheels or rollers upon which the cradle runs are so separated that undue and unequal frictiou may result, while Talbert’s device does not interfere with the cradle wheels, which may remain as near together as convenient or advisable. For these reasons Talbert’s device can more safely take up heavier vessels and vessels drawing more water than cau be taken up by Turnbull’s device.
    Mr.' 8. 8. Henkle for the claimant.
    
      Mr. John 0. Chaney (with whom was Mr. Assistant Attorney-General Cotton) for the defendants:
    For the sake of the. argument, let it be taken that Talbert’s device has a valid patent. Ought the Government, under the circumstances, to be bound for royalty 'l
    
    
      There is no express agreement to pay royalty for its use; at least, nothing but the bare word of the claimant, and he, being an interested party, wants a judgment. He exhibits no written contract; is there an implied one? "
    Let us look to the position of the parties. Claimant was an employé of the Government at the Washington navy-yard, and had been for some time borne on the pay-rolls and received his pay regularly. Under his duties as a carpenter and builder he was directed to build these cars or blocks on to the marine railway at the Washington navy-yard. He goes along in the usual way and does the work, getting his regular pay therefor, the Government paying all expenses, furnishing all materials, and taking the risk of its worthlessness, and all with his knowledge and concurrence. After its successful use he secures his so-called letters patent thereon, and, after a few years, applies to the Department, then to Congress, and ultimately here, for pay for its use, affirming that there is an implied or some sort of •contract of royalty.
    We insist that it is a case of license to use the invention, if it be an invention. In Solomons’s Case (21 C. Cls. B., 479) the court held that “ where the United States employ their own agent to devise a revenue stamp, they bearing the cost of the invention and running the risk of its worthlessness, and making an enormous outlay, with his knowledge and concurrence, his acts constitute a license to manufacture and use the device if patented, in the public service, and negative any presumption of an implied contract on the part of the Government to pay a royalty for its use.” There is no implied contract of royalty, therefore, in the Talbert case.
    The use of a patented machine by “the Government does not constitute a taking of “ private property for public use ” within the meaning of the Constitution. (7 C. Cls. B., 219; 12 Wallace, 246; also 1 C. Cls. B., 7.)
   Dayis, J.,

delivered the opinion of-the court:

From 1833 until some time in 1860, plaintiff, who is by trade a ship-carpenter, was employed in the Washington navy-yard; in 1860 he was without employment and, contemplating the establishment of a private ship-yard upon the Eastern Branch of the Potomac, he was confronted with certain practical difficulties, which he undertook to surmount. The physical conditions existing' upon the Eastern Branch, particularly in relation to depth of water, were such that a marine railway having upon it a ship’s cradle of the design in common use could take out of the water only vessels of limited draught and length. To overcome this obstacle plaintiff devised an improvement to the cradle so that larger vessels could be taken successfully from the water and repaired at his projected shipyard. Before he had taken a patent for this invention the war broke out, and the increase of work at the navy-yard recalled plaintiff to his - former employment. The ship’s cradle at the navy yard, also situated upon the Eastern Branch of the Potomac, was of the usual type and was insufficient for the then needs of the service, as only boats of light draught and of little length could be taken out. The officers of the Navy in an endeavor to remedy this defect applied a device which was destroyed during the first trial, and they then requested Talbert, the plaintiff herein, to place his device upon the cradle, promising him compensation therefor. At that time Talbert had not received a pateut for his invention, but later it was issued to him. The device was applied to the cradle at Government expense, and has since operated successfully.

The findings show that the device required inventive genius,, that it was both novel and useful, and plaintiff demands in this action remuneration from the Government for the use of his invention.

He appears here by virtue of the following act of Congress :

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the claim of William Talbert, of Montgomery County, Maryland, for the use, by the Government, óf his patented improvement for marine railways be, and the same is hereby, referred to the Court of Claims, with the authority to take jurisdiction thereof, and •to award judgment thereon, as the merits of the case ma,y demand, according to its value to the Government during the existence of such patent.
“Approved June 30, 1880.”

It is urged in behalf of plaintiff that this act assumes the validity of the patent. It is not, however, necessary for us to analyze the argument, advanced to support this interpretation, as we find that the patent was valid, inasmuch as the improvement was novel and useful, and was the product of original. thought and inventive skill. The invention was adopted by the Government with plaintiff’s consent and with full knowledge of-his claims, ancl the device has been used successfully by the Government during many years. The case therefore falls within the principles heretofore announced by the Supreme Court and by t his court in several cases.

In Palmer’s Case (128 U. S. R., 269) the Supreme Court said r

“ The assumption of the appellant is erroneous. No tort was committed or claimed to have been committed. The Government used the claimant’s improvements with his consent, and certainly with the expectation on his part of receiving a reasonable compensation for the license. This is not a claim for an infringement, but a claim of compensation for an authorized use — two things totally distinct in the law, as distinct as trespass on land is from use and occupation under a lease.”

This court, after reviewing the decisions affecting this subject, said in Schilinger’s Case (24 C. Cls. R., 298):

“ A careful examination of these cases shows that a contract to pay is implied whenever the Government, acting through a competent agent, takes or uses individual property, acknowledging explicitly or tacitly that the property is individual property.”

We conclude that plaintiff may maintain this action upon the theory of an implied contract, arising from use of his device with his consent, the use being a public one and the invention having been recognized as private individual property. It is. therefore unnecessary to consider the argument that the special jurisdictional act is a legislative recognition of the validity in law of plaintiff’s claim.

Among other defenses it is contended that there should be-no recovery because plaintiff was a paid employó of the Government, and as a carpenter was directed to build upon the-cradle at Government expense the cars and attachments constituting his invention. This, it is urged, “is a case of license to use the invention if it be an invention.” It may first be noted that the claim here is not for preparing the cradle, or for-placing the device upon it, for which the plaintiff was paid by wages as a shipwright, but is for the use of a patented invention with knowledge of plaintiff’s claims, without adverse contention as to his alleged rights and with his consent. Further-ii appears that the invention was made by plaintiff at a time when he was not in Government employ and without intention •at that time that it should be used at the navy-yard, and that it was made for the purpose of facilitating the taking up of vessels at the plaintiff’s projected private ship-yard.

The case therefore presents none of the elements found in Solomon’s Case (22 C. Cls. R., 342).

Talbert was not assigned to the task of devising, preparing, or making the device in question. The Government bore no ■expense of experiment incident to the invention, and when the device went upon the cradle it was complete, not experimental; nor when he made the invention was plaintiff an officer or employe of the Government, nor was he assigned to select a device to accomplish a desired result; that duty fell upon commissioned officers of the Navy; nor was this a transaction growing out of plaintiff’s official service or position. (See also Davis v. United States, 23 C. Cls. R., 329.)

Section 4899 of the Revised Statutes, so far as applicable to this case, provides in substance that .every person who before application for a patent, with the inventor’s knowledge and ■consent, constructs a machine afterwards patented, may use that machine without liability for royalty. It is urged for defendants that this statute bars any recovery by the plaintiff.

It is true that plaintiff consented to the application of his device to the cradle at the navy-yard; but that consent was coupled with a condition, to wit, that he should be paid for its use. Admiral Smith had not the power to commit the Government to a contract for royalty, but an implied contract arose, as we have seen, from the user, and having taken advantage of the act of their agent, Admiral Smith, the chief of the Bureau of Yards and Docks, in applying the device, they must be held to thecondition, agreed upon by him and Talbert, that the patentee should be compensated. Plaintiff did not consent to the gratuitous use of his invention. Quite the contrary", he consented to its use upon promise of compensation, and so the claim does not fall within the provisions of section 4899.

A patent, granted in England to one Turnbull, has been introduced by the defense as defeating plaintiff’s claim of novelty of invention. The Turnbull device is a cradle cut into sections connected by rods ; these sections are bunched at the foot of ■the railway, .the vessel’s forefoot grounds upon the upper section, which’is then pulled up the railway the length of the connecting rod, where the second section starts, taking up its-share of the vessel’s weight, and so ou with the other sections until the whole cradle is in motion with ■ the vessel upon it. Turnbull, by cutting the cradle, lessens it strength, while Tal-bert’s device is applied to a solid cradle. Turnbull’s cradle can not be run beyond the rails, while a solid cradle, with Talbert’s device upon it, can be so run; and Turnbull, without the use of so many sections as to seriously weaken the cradle, can not get the same depth of water at the head of the cradle as is given by Talbert’s device. As Turnbull can not successfully block up the vessel without blocking from the ground between-the sections, which would stop the cradle’s forward movement, he can' not conveniently re adjust an irregular distribution of weight j Talbert, on the other hand, can block the vessel up by timbers resting on the top of the cradle’s bed without interfering with the motion of the cradle up the railway. ¡Retaining’ the solid cradle, Talbert can conveniently adjust the cradle’s wheels so as to equally distribute the weight, while Turnbull is limited in this distribution by the spaces between the sections and incurs the danger of undue friction upon certain wheels, which, because of the difficulty of blocking already mentioned, it would be difficult, it not impossible, to correct. Talbert’s device is, in our opinion, a material improvement over Turnbull’s; it accomplishes the same end, but accomplishes it in a different and better manner.

There remains to be considered only the question of the amount of compensation which should be awarded plaintiff. He claims a large sum, basing this demand apparently upon value to the G-overnment of an unusual nature, due, perhaps, largely to the pressure of military necessity. It is urged, also, that the special act established a measure of damage peculiar to this case when it is said that this court should award judgment “as the merits of the case may demand, according to its-value to the Government during the existence of such patent.” It is said that if this act be literally construed and the judgment be proportioned to the value of the use of the invention' to the Government, it would be for a very large sum.

We do not understand that Congress intended in this act to establish a new rule for' estimating the remuneration plaintiff should receive, for while the words “ according to its value to-the Government,” taken alone, might tend to th# belief that «orne exceptional advantage to the Government was to receive •exceptional compensation, these words are limited by the preceding clause, that we are to award judgment “ as the merits of the case may demand,” which means that we are to proceed, -as in other cases, to give to the plaintiff what he would recover in a similar action against an individual.

Discussing the word “ value” the Supreme Court have said (Suffolk Company v. Hayden, 3 Wall., 315):

“ But looking at the term value, in the connection in which it was used, it is quite clear that it had reference only to the utility and advantages or .value of the use of the improvement •over the old mode of cleaning cotton; not the value of the patent itself.”

This case was followed by the Court of Claims in Dahlgren’s Case (16 C. Cls. R., 30).

We assume that Congress, in enacting this special statute, had in view the rule of interpretation thus stated by the Supreme Court:

“ With the knowledge of our construction, like words being again repeated by Congress, it may be considered that a like construction was intended, and was expected to be given to those words.” (Mason v. Fearson, 9 How., 248-258.)

In speaking of the “value to the Government” of plaintiff’s invention, Congress, we understand, intended to prescribe, as the measure of damage in this case, the rule heretofore prescribed by the Supreme Court and followed by the Court of Claims.

Much difficulty has been encountered in estimating theamount of plaintiff’s recovery, for, while the invention is useful, it has not been used elsewhere than at the navy-yard, so that we are ignorant what royalty would bo paid by a private ship yard. This is a difficulty constantly recurring in actions against the Government, founded upon the use of patented inventions, as these inventions are usually of devices — such, for example, as fire-arms, ammunition, or military equipments — not used- by individuals.

In Dahlgren’s Case we said:

“ The materials for estimating the damages, or, in the language of the statute, the amount of compensation which Admiral Dahlgren’s estate is justly entitled to receive from the United States, are meager. The patented articles have no market value, inasmuch as the United States is the only consumer. Therefore the inventor has lost no profits in the ordinary sense of the term. The inventor has made no license to any one, and had therefore no fixed royalty. The claimant, it is true, attempted to establish the reasonable worth of such a royalty on the basis of the weight of metal in the pieces; but the effort failed. The United States have not dealt in the articles, and have not used them so as to gain a profit in the ordinary commercial seiise of the term. We are therefore thrown back upon the rule laid down in Suffolk County v. Hayden (3 Wall., 320), and must find the measure of the claimant’s compensation in the utility and advantage of the invention to the United States over the old-modes or devices that had been used for working out similar results.”

Estimating upon this theory the value to the Government of plaintiff’s invention “during the existence” of the patent, we find it to have been $6,544.30, and award judgment in his favor for this sum.  