Page:Federal Reporter, 1st Series, Volume 8.djvu/293

 ANDBBWB V. CEOSS. 279' �invention by GTeen before his application for a patent, but no suf-, �fiaient evidence from which to conclude that any use of any driyen �well by others before his application was consented to ot allowed by �him. Such, also, was the conclusion in Andrews v. WrigM, and sucb �is the resuit of the evidence in the present case. Green testiuee that �he first heard in the latter part of 1865 of the use by others of drive» �wells made by his process, being his first knowledge of any others �than those he experimented -with in 1861; that be immediately, in �December, 1866, or January, 1866, made out and sent to Washing. �ton an application for a patent; that that was lost in the patent- �of&ce; and that he followed it up by the one in March, 1866, on �•which the patent was granted; The evidence as to the delay in ap- �plying for the patent, as bearing on the question of abandonment, �was considered in Andrews v. Cannan, and the decision was arrived �at that the delay was excused. The same view was taken in Andrews �V. Wright. The evidence in the present case is of the same charaoter �and leads to the same conclusion. None of the other defences set up �in the answ^rjirje ^stablished, nor is an attempt made to sustain any �others than those above mentioned, except the Preble well and the �Indeperidenee well, They were not set up or testified abbut in the �cases against Cannan and Wright, The evidence as to the freble �well f ails to establish its existence as a driven well, or one in which �the process of Green was developed. The alleged inventoi of it, �William E, Tallmau, is dead. JHis brother, Moses T. Tallrdan,, did �not see it constructed. AU the facts testified to about it, and the �remains presented, — the punctured piece of pipe, the copper strainer, �and the section of iron stove-pipe, open at bpth ends, — are at least as �consistent with an apparatus for filtering the water in the di:^ well �in question, while pumping it up, as with a driven well. : With, the �copper strainer on the punctured lower end of the pipe, w^iere it ptob- �ably was, if the pipe was in the i well at all, there could have bee,n no �driven well, in the sense of Green's well. If there was «and in the �buttom of the uell, which was likely to be drawn in through th^ �punctures in the pipe, when used in the diig well, if those punctures �were at the botton of the well, raising up the pipe might raise it �above the supply of water, Whell the water was low; but putting �the strainer on the end of the pipe, and surrounding the strainer with �the section of stove-pipe, would keep out the sand, even when the �water was at the iowest, and permit the water to pass, and, when the �water was high enough td pass through the punctures in the pipe, it �would be so far above the ^sand a^to ,]t),e de^r of sand. AU.the.evi. ��� �