The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1883-05-25
THE BUTTE TOWNSHIP CASES.
Points of Law Raised and Determined In
the "Pawnbroker" Case.
Issues Not Heretofore Decided and Pub
1tshed.


1ished.
We referred last week to the cases pend
ing, by change Of venue, in tho District
Court at Deer Lodge In which the owners Of
the Pawnbroker, Carlotta, and MAMMALIAN
quartz lodes at Butte brought suit to deter
mine as to possessory rights In the surface
ground included In said claims which cover
= considerable area Of the TOWNSHIP location
of Butte City. The Court has since decided
the issues presented, and, as they are not
only of local but general importance, and
have not been heretofore decided and report
ed, we give somewhat extended notice Of
them.
The case tried was that of the Silver Bow
Mining aud Milling Company vs.. William A.
Clark ct al. The defendants were about
twenty in number. The suit was ejectment.
1t was commenced In the Silver Bow County
District Court last July, and the venue
changed TO Deer Lodge. All but two or
three of the defendants answered Jointly. A
jury was waived and the case tried by the
Court. :. The main facts In the case Except
Is to the III after of estoppeD were admitted
by the pleadlngs and by the written agree
ment Of the parties, and the question of title
thus became purely one of law. The ground
In dispute is In the southwestern part of the
Butte town site. 1t was claimed by plaintiff
as the "Pawnbroker lode mining claim and
by defendants as lots, blocks, streets, and
alleys Of lie town of Butte. The facts were
as follows:
The Pawnbroker" lode claim was To-
Gated aud claimed In November, 1876, under
the mining act of Congress of May 10, 1872,
and the laws of Montana, and was continu-
ously, after location and until patent.
claimed and represented As required by law.
The claim was 600 feet long and SO feet wide
at one end and 1872 feet wide at the other
end. In September 1877 q patent for the
Butte town-site was issued from the United
States to the Probate Judge Of Deer Lodge
county, in trust for the occupants, and in
Guiding within Its boundaries the surface of
the Pawnbroker lode claim. This patent
contained provision that no title should be
thereby acquired to any mine Of gold, sill
YER, cinnabar, or copper, or to any valid min
ing claim or possession held under existing
laws Of Congress"
In 1878 the owners of the "Pawnbroker"
claim applied for . United States patent.
The application was based upon the location
of the claim In 1876, and the patent was
issued January Is, 1880. This patent con-
| tanned the following provision:
"Excepting and excluding, however, from
these presents oil town property rights upon
the surface, and there are hereby expressly
excepted and excluded from the same all
houses. buildings, structures, lots, blocks,
streets, alleys. or other municipal improve
ments on the surface of the above-described
premises not belonging to the grantees herein
and all rights necessary or proper to the oc-
cupatIon, possession, and enjoyment Of the
same"
| No adverse claim was made In the Land
Department to the application for the Butte
Il
application Of the Pawnbroker" patent.
The plaintiff claimed under the "Pawnbro
ker" location In 1876 and the patent therefor
in 1880. The defendants claimed under the
Butte town-site patent Of 1877 by deeds from
the Probate Judge. Upon these facts,
shown by plaintiff, defendants moved for a
non-sut, and upon this motion the whole
law Of the case came up.
The dLfen dants argued that the question Of
conflict between the town-site and the lode
claim was within the jurisdiction OF the Land
Department to decide; that that Department
had decided it by inserting In the mineral
patent the exception Qftown-site rights above
mentioned, and that in any event that ex
csption was conclusive upon the plaintiff and
plaintiff having accepted such patent was
bound byIt. Defendants also claimed that
plaintiff could not in an action at law, such
Is this was, attack Its own patent or show
that any provision or exception in it was
void. Defendants further insisted that
plaintiff, before It could recover, was required
to show that the use of the surface ground
Of the "Pawnbroker" claim was necessary for
working the mine, under section 1880, U. S.
Revised Statutes. This section Is as follows:
"Where mineral veins are possessed, which
possession Is recognized by local authority
and TO the extent 80 possessed and recOg.
nized. the title to town lots to be acquired
shall be subject TO such recognized possession
and the necessary use thereof; but nothing
contained In this section shall be so con-
strued as to recognize any color Of title in
possession for mining purposes as against
the United States"
The Court, however, refused to accept
these as correct views of the law and over
ruled defendants motion for non-suit. The
points decided by the Court may be briefly
stated Is follows:
LIST. In mining patents the officers Of the
Land Department can act only according to
the provisions of the Statute and they have
NO right TO insert in patent any exception
or reservation which the law does not author
lie. Ifthey do so, such exception or reser
walton Is void and las no effect, and this
may be shown at any time, and either In an
action at law or IN suit In equity.
%. A party receiving patent from the
United States Is not bound or concluded by
exceptions, reservations, or conditions in.
serted in the patent without authority Of
law.
Sd. There seems to be no law authorizing
the Land Department to decide conflict
between q town-sjte and lode claim. In
this case the Department did not attempt to
decide the conflict, but put exceptions in
both the town.site and mineral patents.
Beth parties therefore claiming under pat
ents from the United States, the Court must
examine to see which by law conveyed the
best right.
4th. BY the location Of the ssPawnbroker'
claim In 1876, the location according TO the
act OF Congress Of May 10, 1872, acquired the
"exclusive right Of possession and enjoyment
Of oil the surface included within the lines
of their location" etc., Section 1922, U. s.
Revised Statutes. This act Of Congress was
itself . grant Of right Of possession and right
10 purchase. And the exclusive right OF
possession" granted Ii utterly inconsistent
with right In another to occupy or use the
surface for town-site purposes. Section