Page:Federal Reporter, 1st Series, Volume 3.djvu/723

 7^i TEDEBAi BEPOBTEB. �r " �under'-ground receptacles, formed with a solid or suitable fftundation of layers of roofing-felt and of asphalte <fc roof- mg cernent, substantially as I have above described, with a layer of concrete, cernent, stone, or other suitable material, for the protection of the rooûng felt and.asphaltic roofing cernent, and to ai J in resisting water pressure or noxious gases, where the same exist, substantially as for the purpose above set forth." �This claim also, plainly enough, is not confined to struct- ures intended to resist water pressure from without, but is Bufficiently broad to cover a cisfcern intended simply to con- tain water, whose bottom and sides are constructed in the manner described in the patent. �; In the absence of any language pointing to a different con- clusion, these provisions of the patent itself compel the con- clusion, that the patent cannot be understood to be confined to structures intended to. resist water pressure from without, but ,tli?,t,pn the contrary, it was fyamed with care, so as to cover aijd seoure. to the patentee the exclusive right to construct bpth cisterns and cellars, by making the bottom and sides ofi layers pf roofing felt, protected by a layer of masonry» or othp,r material sufficient to withstand water pressure, within or without, as the case may be. This understanding of the patent is borne out by language in the original patent, omit- ted in the re-issue, where it is said: "By this mode of con- struction, cellars, etc., beneath tide-water, as well as in other localities, may be made water-tight, as well as cisterns and reservoirs." �The construction I have thus given to the plaintiff's patent is fatal to the present action, for it is proved and not denied that the cistern made by Eankin, in Wilkesbarre, long prier to the plaintiff's patent, had bottom and sides formed of lay- ers of roofing felt and roofing cernent, protected on the in- fiide by a lining of brick- work. As to the methods of con- structing this Wilkesbarre cistern there is no dispute, and the only answer that has been made to the fact is that Ean- kin made a cistern intended to hold water in, not a cellar intended to keep water out. ����