The latest judicial phases of the suability of the United States are to be found in Belknap v. Schild,76 Minnesota v. Hitchcock,77 Oregon v. Hitchcock,78 and International Postal Supply Co. v. Bruce.79 In the first of these cases an injunction was sought against the commandant of a United States navy yard to prevent the use there of a caisson gate contrary to the patent rights of the plaintiff. The injunction was denied.

The court, after holding that there was a distinction between a property right in an article which infringed a patent right and that patent right itself, and that, thus, though the issuance in pursuance of an act of Congress of a patent right creates a right in the patentee against the United States as well as against individuals, there is nothing to prevent the United States becoming the owner of the article that infringed a patent right, continue:

74 162 U. S. 255; 16 Sup. Ct. Rep. 754; 40 L. ed. 960.

75 In Cunningham v. Macon & B. R. Co. (109 U. S. 446; 3 Sup. Ct, Rep. 292; 27 L. ed. 992), the court, defining the doctrine of the Lee case, say: "The action of ejectment in that case is, in its essential character, an action of trespass, with the power in the court to restore possession to the plaintiff as part of the judgment. . . . The judgment in that case did not conclude the United States, as the opinion carefully stated, but held the officers liable as unauthorized trespassers and turned them out of their unlawful possession."

76 161 U. S. 10; 16 Sup. Ct. Rep. 443; 40 L. ed. 599.

77 185 U. S. 373; 22 Sup. Ct. Rep. 650; 46 L. ed. 954.

78 202 U. S. 60; 26 Sup. Ct. Rep. 568; 50 L. ed. 935.

79 194 U. S. 601; 24 Sup. Ct. Rep. 820; 48 L. ed. 1134.

"In the present case, the caisson gate was a part of the dry dock in a navy yard of the United States, was constructed and put in place by the United States, and was the property of the United States, and held and used by the United States for the public benefit. If the gate was made in infringement of the plaintiff's patent, that did not prevent the title in the gate from vesting in the United States. The United States, then, had both the title and the possession of the property. The United States could not hold or use it, except through officers and agents. Although this suit was not brought against the United States by name, but against their officers and agents only, nevertheless, so far as the bill prayed for an injunction and for the destruction of the gate in question, the defendants had no individual interest in the controversy; the entire interest adverse to the plaintiff was the interest of the United States in property of which the United States had both the title and the possession; the United States were the only real party, against whom alone in fact the relief was asked, and against whom the decree would effectively operate; the plaintiff sought to control the defendants in their official functions, as representatives and agents of the United States, and thereby to defeat the use by the United States of property owned and used by the United States for the common defense and general welfare; therefore the United States was an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought; and the suit could not be maintained without violating the principles affirmed in the long series of decisions of this court, above cited."

In International Postal Supply Co. v. Bruce80 an injunction was asked to restrain a federal postmaster from using a leased machine which infringed a patent owned by the plaintiff. Again the relief asked for was refused, the court holding that the United States, though not the owner of the machine, had a property right a right in rem - in it, and was in possession, and that, therefore, the case was governed by Belknap v. Schild.81

80 194 U. S. 601; 24 Sup. Ct. Rep. 820; 48 L. ed. 1134.

In Minnesota v. Hitchcock82 suit was brought against the Secretary of the Interior and the Commissioner of the General Land Office of the United States, to restrain them from selling certain lands in the Indian reservation. The suit was held to be one against the United States, but was entertained by the court on the ground that by virtue of an act of Congress the United States had consented to be sued. In Oregon v. Hitchcock,83 however, in which suit was brought to restrain the patenting to individuals of certain lands and a decree establishing the title of the State of Oregon to them, the court declined jurisdiction, no statutory consent of the United States to suit appearing.