Nos. 4893 and 4899.

26 F.2d 322 (1928)


Circuit Court of Appeals, Sixth Circuit.

May 16, 1928.

Attorney(s) appearing for the Case

Wm. Marshall Bullitt, of Louisville, Ky. (R. Lee Blackwell, Eugene B. Cochran, and Bruce & Bullitt, all of Louisville, Ky., on the brief), for Wyatt and others.

John Marshall, Jr., and Ernest Woodward, both of Louisville, Ky. (Woodward, Warfield & Hobson, of Louisville, Ky., on the brief), for Mammoth Cave Development Co.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

DONAHUE, Circuit Judge (after stating the facts as above).

The evidence is practically conclusive that Mammoth Cave consists of many chambers, halls, avenues, and narrower passageways, created at the same time and by the same forces, forming one colossal work of nature, which cannot be limited to any particular part thereof by artificial boundary lines upon the surface. It does not clearly appear when this cave was first discovered, probably in the latter part of the eighteenth century, but it is at least certain that a natural opening to this cave was discovered or rediscovered about 1809 by a hunter named Houchins while in pursuit of a bear. This opening was located on a 200-acre tract of land conveyed in 1811 by Flatt to McClean. It first came into public notice during the War of 1812, when saltpeter was extracted for powder-making purposes, from its nitrous deposits. It was then known as "Mammoth Cave," but its extent and boundaries were then and still are unknown. It would seem far more probable that it was given the name "Mammoth Cave" by reason of its immense size and the large dimensions of its chambers, halls, and avenues, than because it was then supposed to contain the bones of a mammoth.

Shortly after the War of 1812, the explored parts of this cave were exhibited to the public through the natural opening located on the 200 acres deeded by Flatt to McClean. It had become world famous long before the purchase by Croghan, who, though a resident of Kentucky, learned for the first time, while traveling in Europe, that such a cave existed. Upon his return from Europe he purchased not only the 200 acres upon which the natural opening was located, but also an additional 1,410 acres adjacent thereto. Croghan and his trustees explored, developed, named, and exhibited to the public for a fee, not only the caverns and passageways underlying the 1,610 acres, but also a considerable number of chambers and passageways, hereinafter mentioned, that were under adjacent lands but were advertised as features of Mammoth Cave, and appeared in the recognized standard guidebook as constituent parts thereof.

It was early apparent, not only to Croghan, but to the more careful observers among the visitors, that this cave extended into lands other than Croghan owned and to lands other than the adjacent lands explored by him. Nathanael Parker Willis, in a book "Health Trips to the Tropics," cited in Exhibit 2, refers to the great vigilance exercised by Croghan to prevent owners of adjacent lands from determining the exact extent of the cave, "lest they might dig down and establish an entrance to the cave on their own property." The trustees seem to have been equally vigilant. This vigilance on the part of Croghan and his trustees delayed the exploration of a large part of Mammoth Cave for at least three-quarters of a century, during all of which time the public was deprived of visiting and viewing many of the cave's interesting chambers and bizarre formations, located beyond the chambers exhibited by Croghan and his trustees, and, no doubt, the less observant of the visitors believed and understood, not that the parts and features underlying the Croghan land, but, on the contrary, the parts and features shown by Croghan and later by his trustees, under their own and adjacent lands constituted the entirety of Mammoth Cave.

The word "Mammoth," used in connection with this particular cave, is clearly descriptive, and the name "Mammoth Cave" is a geographical name used for more than a century to designate this particular natural formation. Under the facts of this case, neither the descriptive word "Mammoth" nor the geographical name "Mammoth Cave" can be exclusively appropriated by the plaintiffs. Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 220 U.S. 446, 453, 454, 31 S.Ct. 456, 55 L. Ed. 536; Hamilton Shoe Co. v. Wolfe Bros. & Co., 240 U.S. 251, 257, 36 S.Ct. 269, 60 L. Ed. 629; Canal Co. v. Clark, 80 U. S. (13 Wall.) 311, 324, 325, 20 L. Ed. 581; Columbia Mill Co. v. Alcorn, 150 U.S. 460, 466, 14 S.Ct. 151, 37 L. Ed. 1144; Elgin Natl. Watch Co. v. Illinois Watch Co., 179 U.S. 665, 673, 21 S.Ct. 270, 45 L. Ed. 365; Genesee Salt Co. v. Burnap (C. C. A.) 73 F. 818; Allen Wrisley Co. v. Iowa Soap Co. (C. C. A.) 122 F. 796. Nor can the claim be sustained that the name has acquired a secondary meaning so that it applies solely to the parts of the cave underlying complainants' property.

In this respect, this case differs wholly from Kresge Co. v. Champion Spark Plug Co., 3 F.2d 415, in which it was held by this court that the word "Standard" as applied to parts of an automobile had come to be generally understood as indicating that these parts were the "standard" used by the manufacturer in the car's original equipment. The facts of this case clearly distinguish it from ordinary commercial transactions in which descriptive words or names may acquire a secondary meaning. The name "Mammoth Cave" designates a particular natural formation. It differs in no respect from other geographical names, such as "Lackawanna Valley," "Mississippi River" or similar names which cannot acquire a secondary meaning applicable to a part only of the natural object so designated and known by that name, which name others than claimant may employ with equal truth, and therefore have equal rights to use the same. Canal Co. v. Clark, supra.

Even if the name of this natural formation could acquire a secondary meaning and as such be applicable to only a part thereof, the complainants are in no position to assert such claim. They and their predecessors in title have by exploration and development extended its limits far beyond the explored and known parts at the time the name was first applied to this stupendous work of nature, and under which name it became world famous before the Croghan purchase. The natural opening was located on 200 acres owned by McClean. It does not appear that he or his immediate successors in title explored or exhibited any more of the cave than was located under his land. Croghan not only bought this 200 acres upon which this opening was located, but a total of 1,610 acres, and, under his management and control and the management and control of his trustees, this cave has been explored not only to the limits of the 1,610 acres, but far into the lands of adjacent proprietors, new passageways and chambers were discovered, named and opened to the public. These new features include "Martha's Vineyard," "Hovey's Cathedral Domes," "Einbigler's Dome," "Edna's Dome," "Nelson's Dome," and other places of interest underlying the land of adjacent proprietors. These parts of the cave have been advertised and exhibited by Croghan and his trustees in connection with the features underlying the Croghan land as Mammoth Cave.

John Croghan knew that this cave was not confined to his land. In his book, to which reference is above made, he states "That great subterranean territory mainly extends itself under a range of highlands or cliffs earlier described;" and again, "I emphasize some of the avenues because no visitor has yet seen one in twenty, so wonderfully vast is the cave." The trustees also had like knowledge. The secretary and treasurer of the trustees, who was called as a witness on behalf of complainants testified: "The cave was larger and extended beyond the part we regularly showed and had many avenues." Hovey's Guide Book included in its description of Mammoth Cave, "Nelson's Dome," "Einbigler's Dome," "Edna's Dome," "Hawkin's Way," "Hovey's Cathedral Domes," and other features located in adjacent lands. Some of these are a great distance from Croghan's surface lines. It is therefore quite evident that Croghan and his trustees did not understand, believe, or use the name "Mammoth Cave" as limited to any part of this cave, but, on the contrary, as including and comprehending the entire cave as nature created it, and with that belief and understanding logically and truthfully included in their advertisements and guidebooks all new discoveries as parts of this cave, whether such discoveries were in and under their land or adjoining lands.

It is said, however, that the trustees are not responsible for what appeared in Hovey's book. This contention overlooks the testimony of the secretary and treasurer of the trustees that "Hovey's book is the recognized standard guidebook of Mammoth Cave, and we possibly sold a copy to Mr. L. M. Render on the 5th day of April, 1915." It also appears from the testimony of complainants' witnesses that Hovey's Guide Book was sold to visitors by concessionaries and particularly by the souvenir department in the hotel building owned by the trustees and in which they have their office.

It is also claimed that "Cathedral Dome" was not regularly exhibited by the trustees. That is no doubt true. It is located at such a distance from the other features that it was rarely, if ever, exhibited to visitors unless they were willing to pay the extra price of $5 to the guide. It was, however, included as a feature of Mammoth Cave in "the recognized standard guidebook" sold at the cave by complainants and their concessionaries.

In view of these facts, clearly established by the evidence, complainants cannot now be heard to say that the name "Mammoth Cave" has acquired a secondary meaning applicable only to the portion of the cave underlying their land. That is evidently a new thought, suggested by the exigencies of this case.

Notwithstanding the fact that complainants are not entitled to monopolize the name "Mammoth Cave" to the exclusion of adjoining proprietors under whose lands a large part of this cave is situated, and notwithstanding the fact that these words have acquired no secondary meaning applicable to the portion of the cave underlying their premises, but, on the contrary, have been applied by complainants themselves to a considerable portion of the cave underlying adjacent lands, they are nevertheless entitled to reasonable protection as to the features lying within their boundary.

It is apparent from the pleadings and the evidence that the trustees of the Croghan estate and the officers of the Mammoth Cave Development Company believe that they have superior attractions to the public in the parts of the cave owned and controlled by them respectively. They are entitled to their opinion in this respect, but they should have sufficient confidence in that opinion to base thereon their respective claims for public patronage, without any misrepresentation whatever as to the facts.

Defendants have been guilty of many objectionable methods and practices in their efforts to attract visitors to the part of the cave shown through the new opening. Among other things they have placed signs, published and distributed advertising matter, and made oral statements tending to mislead the public into the belief that they were showing, and had a right to show, all the interesting features of Mammoth Cave, including not only those underlying their own property and surface rights, but also those underlying the complainants' land. This is unfair, not only to the complainants, but the general public. Each prospective visitor is entitled to know the facts and judge for himself which parts of the cave he prefers to visit.

Upon a careful review of all the testimony and exhibits in this record, we have reached the conclusion that the temporary injunction granted by the District Court will fully protect the public and accord to the complainants all the protection to which they are entitled, and will not unduly restrict defendants' activities in the operation and exploitation of the part of this cave underlying the land owned and controlled by the Mammoth Cave Developing Company.



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