mechanism must be controlled and operated from the surface. When to these subterranean difficulties we add the fact that these operations are carried on in places isolated from machine shops and customary appliances, we can appreciate that the well drillers' art is a species of mining distinct in itself, and those engaged in it are the most resourceful of men. The wonderful developments of this art, its control of water, its mastery of quicksands, its recovery of tools, pipes, and fittings from the bottom of wells-these and many other features unite to make the art one in which improvements in the art, which in other arts would be looked on as inventive, are in this art considered as the natural and to be looked for expedients and devises of selfreliant, resourceful men. We can thus see that the daring, original, and inventive step, which Frasch took in proposing to melt this sulphur bed in situ and then pump it to the surface, was made by a man who appreciated what he wanted to do, knew the obstacles he would have to encounter, but who was particularly qualified to overcome those difficulties. We can also understand that Frasch entered the field, knowing it was going to take time, for he was a man of such large affairs and general activities that even this sulphur development was a side issue, or as he himself said:

"At that time my sulphur enterprise was merely a hobby, the bulk of my time being devoted to my Standard Oil work."

He approached the problem in a most thorough way. From the proofs it would appear that some wells had been previously drilled through the sulphur bed, and that records had been kept of the strata, and cores had been taken of the sulphur itself as these wells were drilled. We here remark that the contention of the plaintiff is that Frasch conceived his process and applied for his process patent under a fundamental misapprehension of the physical character of the sulphur bed he was proposing to operate. We find no warrant in the proofs of this assumption, and Frasch himself proves the contrary. He got a core of the sulphur; he had it before him; he knew just what its physical structure was. It is said his patent was based on the assumption that the Louisiana sulphur was similar to Sicilian sulphur, in that it was impervious to water, while in point of fact it was porous. In the first place, if the Sicilian sulphur was impervious to water, there is no proof whatever that Frasch had then visited the Italian mines, or knew that their sulphur was waterproof. And we have seen, also, that in some way water did get into the Sicilian sulphur mines. But there is proof that he knew the physical structure of the Louisiana sulphur, for the very first thing he did was to get “a core from the sulphur deposit"; so that it is perfectly clear that Frasch started out with a knowledge from this core, of just what the structural character of this sulphur was. If it was porous, he had the evidence of its porosity before him. If he knew the nonporous character of the Sicilian rock, and if this Louisiana core differed from the Sicilian product, then he had them before him for contrast. If his patent was based on the theory of nonporosity, we would naturally expect some reference to be made in specification to the matter of porosity

or nonporosity; but not only is there none, but when, 22 years after, Frasch summed up all his work and detailed all the obstacles that confronted him in this Louisiana field, and when he recounted how he had been misled in regard to the sulphur bed, he never once referred to sulphur porosity or nonporosity, or suggested that his process was based on the assumption of nonporosity. On the contrary, he then and there asserted that his original process was carried out successfully, and, what is more, he made no reference to, or attributed any inventive character to, any act, device, or disclosure made subsequent to his original discovery and disclosure.

Turning to the account of Frasch just referred to, it will be seen that, in addition to getting the sulphur core, he also got the drilling records; but these, as he subsequently found, had been colored by people who expected to float companies, and that what he had considered correct later proved to be entirely wrong. In that regard he says:

"Unfortunately, all the drilling records had been colored by the people who expected to float companies. Everything unfavorable was concealed, and only that given which would be likely to induce investment, so that what I had considered a correct report proved later to be entirely wrong."

What this coloring was he does not say, and certainly does not say it was in regard to the porosity of the sulphur or the fact of water permeating it. That the company had been misled as to the presence of water he does say, and that this misleading information had, when rectified, led to the company abandoning the work; but, as this abandonment took place before Frasch began his operations for the company, it is clear that he himself was under no misapprehensions as to the presence of water when he began work. As to this discovery of water, the presence of water containing hydrosulphide, the death of the men, the water permeating the sulphur, and the consequent abandonment of operations by the company, Frasch says:

"They had a very ingenious scheme for sinking a shaft with a shield, but after the expenditure of a great deal of money the shield was lost, and the danger due to the presence of water containing hydrogen sulphide was demonstrated by the death of a number of men. It was decided to abandon this method, especially after a drilling record had been made by a drilling company who reported direct to the owners, when it was discovered that there was no roof over the sulphur, and that sulphur water was permeating the deposit in inexhaustible quantities."

What was the misleading information, which Frasch had, he does not say; but its nature was such as led him to believe the sulphur bed extended through the region generally, and to purchase adjoining property and drill a well of his own, which first well was followed by three others. Referring to these matters Frasch says:

"Being misinformed as to the character of the deposit, I reached the conclusion that the sulphur was distributed in the rock, as in Sicily, and, when I heard of the limestone roof covering the deposit, I felt that sulphur could be found anywhere within reasonable proximity to the sulphur mines.

*

"In view of the information obtained from the various companies, I believed that there was sulphur over miles of territory, and started to drill on land I had purchased within a mile and a half of Sulphur Mine. I went down over 2,000 feet without finding anything. Then I located a second, a third, and a fourth well, but found no sulphur in any instance. This took much time

and money, and I finally reached the conclusion that all the sulphur was located on the land owned by the New York company operating it at the time."

From Frasch's account it appears that from the very start he determined not to operate the bed as was done in Sicily, not for any physical reason, but on the practical commercial one that he could not compete with Sicilian labor. In that regard he says:

"I realized at the outset that a method entirely different from that employed in the mines of Sicily was necessary for success here, as the class of labor required to operate this mine would demand at least $5 per day, while the Sicilian miners were being paid 60 cents."

This labor barrier Frasch determined to overcome by abandoning shafting, quarrying, and carrying to the surface. His plan was, as stated by himself:

"To meet the extraordinary conditions existing in this deposit, I decided that the only way to mine this sulphur was to melt it in the ground and pump it to the surface in the form of a liquid. After careful study and consideration, I became convinced that this could be done."

Having found no sulphur in the four neighboring wells he drilled, Frasch evidently came to the conclusion that the sulphur bed was confined to the company's property; so he became associated with them, and proceeded to drill a test well, which led him to completely modify the process and apparatus he had expected to use. In that regard he

says:

"I succeeded in getting possession of the property, and at once set to work to drill a well of sufficient diameter to determine finally the character of the existing material. When this had been done, I was obliged to modify completely the process and apparatus I had expected to employ.

"At that time the drilling of a well in an alluvial deposit containing quicksand, etc., was a very tedious task, and it took from six to nine months to get through the alluvial material to the rock-work which we do to-day in three days."

At this point we note that the well which Frasch then proceeded to drill on the company's property was presumably drilled to carry out the process and to use the apparatus disclosed in the patents which he had then obtained. Such being the case, three questions naturally arise: First, did the well prove the process was practical? Second, did the apparatus suggested in the patent, and used in the well, show a practical way of using the process? And, thirdly, what modifications of the process and apparatus did this well lead Frasch to make?

Let us first see what Frasch had patented. As to process, there were two: The first was one in which hot water was used to liquefy sulphur; the second was one in which the sulphur was liquefied by chemicals. The water process was applied for October 23, 1890, and resulted in the grant of patent No. 461,429, of October 20, 1891. The gist of the invention is thus stated in the specification:

First, the use of underground fusing: "The fusion or melting of the sulphur in the mine or underground deposit and its removal in a fused or melted condition."

Second, the fusing agent: "To fuse the sulphur, use is or may be made of a heat-conveying fluid or vehicle, preferably a cheap liquid, such as water."

Third, the means for bringing the sulphur to the surface: "The liquefied sulphur need not be forced up by the heat-conveying liquid, but may be pumped up in any ordinary or suitable way. *** The term 'pumping' is intended to cover the movement by means of a pump or any known or suitable substitute for a pump."

And in connection with this third or latter feature we here note that as but one claim specifies "pumping," and all the others use the general term "removing," it is quite evident that Frasch contemplated that any known kind of lifting agency fell within the scope of his process. As to the use of water as a heat-conveying vehicle, it is quite evident, in his application as originally filed, Frasch made "contact" of the water with the sulphur an element of his claims. Such water-sulphur "contact" is specified, for instance, as (claims 3–9, inclusive) "fusing the sulphur in the mine by bringing into contact therewith a fluid," etc. But on December 26th following Frasch filed additional claims, and among them was claim 10, which provided:

"The process of mining sulphur, consisting in circulating through the underground deposit of sulphur or sulphur-bearing rock a fluid, such as water, at a temperature above the melting point of the sulphur, thereby liquefying the sulphur by fusion, and removing the melted sulphur, substantially as described."

In this it will be observed he changes from "contact" to "circulating through the underground deposit or sulphur-bearing rock a fluid." It is quite evident, therefore, that Frasch, by this addition of a "circulating through claim," meant something different from his "contact" claims, and that two subdivisions of water treatment are disclosed by this patent, viz.: One, the fusing of sulphur by water coming in contact therewith; the other, by water circulated through it.

When Frasch, on October 23, 1890, applied for this patent, he coupled with his process a form of apparatus by which his process could be used. The office compelled a division, and his apparatus was finally patented to him in No. 461,430, granted October 20, 1891. Without entering into details, it suffices to say this patent disclosed three distinct elements, but all used in combination, viz.: First, the fluid heating appliances on the surface; second, the appliances which carried the heated fluid to the sulphur bed; and, third, the appliances by which the sulphur melted underground was brought to the surface. Referring to his drawings, Frasch says:

"Figure I is a diagram of a plant for mining sulphur in accordance with the invention. Figure II is an enlarged diagram of the well."

Taking these two figures as embodying his plant and his well, Frasch adds:

"Referring to Figs. I and II, a well A is drilled as usual, in making salt and oil wells," etc.

He then proceeds from this point (line 52 of page 1 of his specification to line 80 of the second page of his patent) to describe the process and the apparatus for securing sulphur fusion. The reference letters in his description are to plant, Figure I, and well, Figure II, and there is no reference or allusion in this description to any other draw

ing or feature of the specification, save these shown in Figures I and II. Therefore the language he uses applies to and must be read onto Figures I and II. In the operation thus described, the hot water from the heaters is forced by force pump F, down the casing B, and after it has melted the sulphur, such water, together with the melted sulphur, is forced to the surface through the tubing C, and eventually returned to the heater. It is of this circulating process and device the specification says:

"It will thus be seen that there is a closed circuit, which includes a chamber in the sulphur or sulphur-bearing rock, and through which water at a temperature sufficient to fuse the sulphur is forced."

But this water pressure, water circulating and water-sulphur lifting process is not the only one Frasch suggested. In his specification he also says: "Fig. III is a view illustrating a modified arrangement of part of the apparatus"-which was noncirculating. This modification Frasch thus describes:

"Instead of relying upon the pump F to force the melted sulphur and hot water up the tubing C, a pump F' at the bottom of the well in the tubing C may be employed, as shown in Fig. III. By the use of this latter pumping arrangement it is not necessary to fill the cavity in the mine with hot water in order to remove the melted sulphur, since it can be raised by the pump in the tubing C. The mine might be filled with hot water, and after a quantity of sulphur had melted this could then be removed by the pump F", thus making the operation of melting the sulphur and removing it periodical. The pump F' is formed by a working barrel at the bottom of the well and a plunger operated by a sucker rod with valves such as are commonly used in oil wells where a similar arrangement of pump is employed."

Frasch also pointed out another modification, saying: "Fig. IV is a view illustrating a further modification"-which it will be observed may be either circulating or noncirculating. This modification he thus describes:

"In Fig. IV there is a third passage or pipe T extending into the mine, through which the hot water (or other fusing vehicle) pumped down the casing B may be allowed to escape after having first melted the sulphur in the mine. The melted sulphur collects about the end of the tubing C, through which it is raised by the pump F'. Of course it could be forced up by the pressure in the mine by checking the outflow from the pipe T. The pipe T is (or may be) connected with the heaters E."

The specification does not state the distance pipe T is from the main pipe or when it was drilled. It follows, therefore, that it is quite possible that the pipe T may have been drilled at such distance in time and place from the main well that the hot water coming down the main well would have to work its way for a considerable distance through the sulphur rock itself, or fissures in it, in order to reach the outlet pipe T. And it is also apparent that, the hole for T being drilled through the same strata as the main well, but having no casing to shut off the water in the strata which the drill passed through, the water of the strata would, as the well was drilled, flood the hole, and consequently the sulphur bed.

It will, of course, be noted that, whatever the problematic effect of the drilling of the bleed pipe T, it is apparent that, as stated in the ex