Butte semi-weekly miner. [volume] (Butte, Mont.) 1886-1890, 1886-08-14

THE following II tn . decision Of Secretary
Of the. Interior Lamar ON the Smoke House
lode. The docsment lie addressed to the
Attorney GsnerAl. and cd far a. the de-
pattments afs eoncern1f sestles tie vsted
| question # haye tho h6aorstoS incaose
hasssitkaeopiesaoi two reports fremsthe
Commissioner of the General Land Office,
to wit: Of February "a and May Is, 1886,
relative to the application Of certain resi-
dents Of Butte City, Montana, for the In
s~titution by the United States of a suit to
Get aside the patent issued March 15, 1881,
to David N. Upton ct al for tho Smoke
House lode mining claim, which was re-
ferred to this department BY your letter Of
November rs, 1885. Transmitted with
the said report are the papers accompany
ing your said letter, and. also certain afi-
davits, ETC., filed in this department since
it's reception here.
The application il based on the charge
that said patent was procured wrongfully,
in that the proofs, upon which it issued,
falsely and %fraudulently represented that
tho land was valuable for minerals, that
the requisite $500 worth of work had been
done upon it. and that the claim had been
staked of a. required by the statute. The
allegation Of the want of necessary mark
ing, work and discovery OF valuable min
erals, are more or less amply supported by
the afidavits OF a number OF reputable
| citizens Of Butte City, who have been ia
miliar with the Smoke House lode for many
years. But, in the view I take of the case,
it is Unnecessary for me to determine
whether the prima fscie thus made is sui-
fciently strong, and this for the following
reason:
The papers before me show that the
Smoke House lode is situated entirely with
in the limits Of the town site Of Buttt1Ior
which patent issued on September 26,
1877. The lode. location was made in
1875, but the application was not made
until January, 1880, and patent did not
issue thereon until 1881. az aforesaid.
While the application was pending, to-wit:
in April, 1880, protests were fled by the
Mayor OF Butte City. and Others, alleging
various causes land, among others, the
"0ASAAS0oACo6 VI III Aduu " III osl0,j
why the patent should o issue. The pro-
t~estants, however, abandoned the charge
that the land was non-mineral, aud, as the
final proofs were complete, and no adverse
claim had been filed, the patent was in due
time issued. .t
Subsequently, actions in the nature OF
ejectments were brought by the owners of
the Smoke House Lode patent against
various persons in possession of parts Of
said lode under the townsite patent, and
the Supreme Court of Montana, at their
January, 1886, term, affirmed the judy
ment rendered below for the plaintiffs. In
respect to the required location, discovery,
work, etc., they ruled, as will fully appear
in q certified copy OF their opinion for
iwarded herewith, that "the issuance of the
(mineral) patent conclusively proves all
these precedent acts and facts, which the
Land Department must find to exist be-
fore patent can rightfully ISSUE" and they,
therefore, held that evidence to prove the
n~on-existence OF these acts aud facts was
incompetent in the actions then under con-
~sideration. In my judgment, this is a great
exposition of the law. It was because of
it, as it appears, that the parties claiming
under the townsite patent have asked the
Intervention of the Government to have
the mineral patent set aside.
If the land covered by the Smoke House
Lode locations was known to be valuable
for minerals, the no title to it passed uu-
der the townsite patent; Deffeback vs..
Hawke. Oils o. s. s02.) hence, when it
was alleged to be valuable mineral land by
the lode locate, and the required evidence
thereof had been filed with their applica-
ton for patent before the local land Office,
it was incumbent upon the townsite claim
ants, il they proposed to assert title under
their patent, to file adverse claim provided
by the statute, and in the ensuing judicial
proceedings to show the superiority of
their right to it. Having had serious
doubts, at least, of the mineral character
OF the land at the time Of the application
forpatent, as shown by the papers before
me, and having failed to file the adverse
claim authorized by law, they certainly
were neglectful of their own Interests.
Furthermore, they had it in their power
to enter protest against the issue of the
pateut for any OF the causes now set up es
for asking it's cancellation, and
in TACT they did protest on several grounds.
to the alleged defects in stalking and the
OF work done, a protest by them
would merely have had the effect of delay
ing the issue of patent until such defects
we're cured. As to the n~on-mineral charac-
ter OF the land, proof of it would have
the issue of patent; but they with
Drew or failed to prosecute the charge that
40 discovery Of mineral had been made, be-
'ause, as the papers before mi indicate, they
Hoped that a discovery would be made:
herein again they were negligent in pro-
Getting their interest in the land.
Since the tract in controversy is covered
y the townsite patent, if the mineral patent
'ere set aside for the causes alleged title
you'd re-vest in the holders under the
ownsite patent, and not in the United
'tates. In the case Of the United States
3. Minor, Ola U. s., 1881 the court said
hat it might become q grave question
neither the Government could be permit
ed to use its name to set aside it's own
atent for the benefit of q rival claimant,
hen it had no interest in the subject
natter of the suit. In the case of United !
tates VS.. Hughes, III Howard, $50, $685. t
here it was urged that the United States \
a d no interest in the land in controversy,
was held that such a suit might be in t
when, by reason OF the inadvert-
Ice OF the Land Department and the u
aud OF the claimant, the Government was b
aable to fulfill its engagements with 8
give title to the prior and rightful b
aimant. But in this case there is no in il
that the prior claimant had been u
in acquiring or maintaining his
ghts; whereas, in the case before me, such