The Bozeman weekly chronicle., 1888-02-08
THE GOODWIN CASE.
Opinion OF Judge Bach In the Supreme
Court, re.afIlrming the decision
of Judge McLeary.

to get title from them; but in the
meanwhile had filed, to make assurance
doubly sure, a declaration notice with
the county clerk. When these facts
were made known by testimony, Judge
McLeary very promptly decided in favor
of Mr.. Goodwin. Mr.. Smith, the U. S.
Attorney, carried the case to the Supreme
Court, where Mr.. Goodwin was obliged to
defend it at some expense. The ques
ton naturally arises: When does man
know whether or not lie is entitled to
land?
Herewith we give the opinion fudge
Bach IN full on this case which may
answer 10 some extent the query we
have propounded:
IN THE SUPREME COURT OF MONTANA TERRI
TORY, JAN. TERM, 1888.
| The United States.
| Appellant.
ys.
George H. Goodwin,
Respondent.
Opinion of the Court by Bach, Al.
This action is brought under the act of
February 25th, 1885, entitled ian act to
prevent unlawful occupancy of public
lands" to COMPEL the defendant to ie-
move his fences from certain lands said
to be part of the public domain.
The answer admits that the defendant
has fenced 100 acres of land, situated in
Madison County, Montana, and alleges
that 167 acres Of said land belong to the
defendant by virtue of grant from the
Northern Pacific Railroad Company,
although the defendant has been unable
to procure the title of said company
thereto by reason of the failure of the
plaintiffs to cause the township which
contains said lands to be surveyed.
acres 80 admitted to he fenced, 160 acres
are included in a notice of declaration
filed in the Office of the County Recorder
of Madison County, acknowledged by the
defendant, expressing and describing his
right of occupancy ; that the defendant
has been unable to procure the title OF
the United States to said lands through
the failure of plaintiffs to survey and Of
fer the same for sale; and the answer
further alleges that the defendant has
the qualifications of a settler upon the
public domain required by the United
States Statute, and the fact that the de
fendant intends to enter said 100 acres
or SO much of them as belongs to tht
United States, in the proper land otfict
as soon as said office can legally receive
filings thereon.
} Upon the complaint, which is admit
: ed to be in proper form, and upon tn
r answer, the plaintiff moved for judgmen
the motion was denied, and judgmen
9 entered in favor of the defendant. Th
n appeal is taken from the judgment an
e from the order denying the motion 70
f Judgment on the pleadings; but counse
. for the appellant relies upon the latte
: only.
The following is the Statute und'
a which the action Is brought.
n "All enclosures OF the public land
# any state or territory of the Unite
IT States heretofore or to be hereafter mad
n erected or constructed by any perso
a versions, party, association or corporate
n to anv of which land included with
the enclosure, the person, party, assoc
ton or corporation making or constru'
- ing the enclosure had no claim or col
~ of title made or acquired in good fai
or any asserted right thereto, by or
J., der claim made in good faith with VII
!, to enter thereof at the proper land OIL
y under the general laws of the Unit
States a: the time any such inclosure v
or shall be made, are hereby declared
be unlawful, and the maintanance, er
ton, construction, or control of any ST
~ iniosure is hereby forbidden. and
H ~. assertion of a right to the exclusive
~ and occupancy of any part of the pui
lands of the United States in any st
~. or in any of the territories of the Uni
w States without claim, color of title or
serted right, as above specified as TO
- closure, is likewise declared unlav
-. and hereby prohibited
The seeona section provides the re
to he granted in such cases.
M " For the purpose of this appeal,
.n admitted by the parties that all of
.A .n l9O fenced are included in either
grant floM the Northern Pacific rail-
company or in the notice of declara
or, referred to.
As to the portion contained in
grant from the railroad, it is sutficiel
say that this court has frequently d'
ed that the act of congress creating
vs. Northern Pacific railroad company v
W, grant of the odd sections within
o'"' forty-mile limit, with certain excep
!. "p specified in the statute which do
'"o concern us in this case; that the til
"en the railroad company is alegal title
49, not an equitable right.
anu Northern Pacific R. R. Co. vs. Ma
IL u 5th Mont, Ill.
row. Northern Nacific Il. r. Co. vs.
he 9th Mont, 65.
wow United States VS.. Williams, 9th n
nv" 35l.
-. According to these authorities the
!, e n is not public land of the United St
- AZ therefore it docs not come With
~ terms of the statute.
r. See also the opinion of Mr.. J
al "a Hoffman In the case of the Z
- =" States vs.. Brandenstein, in the |
e'.o, States district court of California, n
',A reported.
We are also of the opinion tn
III fencing of the land which is inclut
." -, the declaration referred to does no
"ou" within the terms of the statute.
h'''eo statute refers to the Enclosure of
n'eA lands, to any of which land in
,"'' in the inclosure, the person makil
'ne'e inclosure had no claim or color
made or acquired in good faith,
asserted right thereto by or under
in good faith, with view to th'
thereof at the proper land office, c
week 1t is admitted by the motion t
with Of the allegations in the answer a
-, h.u | rnl thpo tho =. ~ x,ar ara,as - mn a