The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-06-13

sound, within the exterior bounds OF the
railroad grant, whether on tho odd or eyon
sections, would nov whether he has u title
TO land purchased either from the govern
ment or the railroad company until a mine
either has been, or shall : DO hereafter, ut
some time in the future more Or less dis
tant, be discovered on II, when he will know
for the frst time, that he has no title.
Every patent issued for mineral lands TO n
preempteT, homesteader or other purchaser,
within the meaning of the execution ia ut
terly void and passes no title. at least upon
a direct and not collateral attack. Mineral
lands have always been, and they are now,
excepted and reserved from presumption,
homestead entry, and.~Rll other ordinary
modes Of disposition except congressional,
IN substantially the Same language as That
in the railroad grant.
"They all stand upon tho same footing
with the railroad company and it's grantees,
except, that, tho latter can do without Il
patent, IA the title passes irrevoohbiy by
the congressional grant, and the perform
ance of the conditions subsequent. The
patent adds nothing as n title. 1t Ia only a
convenient instrument Of evidence, in the
language Of the statute confirming mot
transferring to said company the right
and title to said lands, it does not seem
possible that congress- deliberately intended
to leave the titles to all lands in the new
states in q state of such lamentable uncer-
%tainty."
The demurrer was to q complaint in an
action to recover possession of section u,
township 10 north of range 4 west. The
railroad company alleged it's corporation
under the act of congress of July 9, 1864,
for the purpose Of building the Northern
Pacific RAILROAD; that by that act there was
granted to it every alternate section Of
public land not mineral, designated by odd
numbers to the amount of twenty sections
per mile. on each side of such railroad line
az said company might adopt through the
territories of the United States. whenever,
full title, not reserved, sold or granted, or
otherwise appropriated. and free from pre-
emption, or other claims or rights, at the
time when the line of the road should be
definitely fixed, and a plat thereof filed
in the Office of the commissioner of
of the general land office; also
other provisions of the act; that
plaintiff duly accepted the terms and con
ditions of said act in the mode prescribed
by law, within two years after the passage
of the act, on December "a, 1864, that the
general route of said road extending through
February 81, 1872; that the lands in ques-
tion in section u are within forty miles of
the linz of the road as 30 fixed, and were
on February q, 1872, public lands to which
the United States had full title, not re-
served, sold. granted, or otherwise appro-
| pEluLou, huu lTt6 1TOm pICcIHpblOll L IL
claims or rights. that at the date of said
act, July 2, 1864, and the date of fixing the
line of general route. on February q, 1872,
no part of the land in question was known
as mineral land, but was more valuable fol-
grazing than for mining purposes, and that
no part of the land was within any excep.
tions from the grant; that afterwards on
July 6, 1882. plaintiff definitely fixed the
line of the railroad extending opposite tc
and past the land, and filed a plat thereof,
in the Office of the commissioner of the
general land office; and that the land is
within forty miles of the line OF railroads as sc
definitely fixed; that thereafter the plaintiff
duly constructed the said portion of the
rond and telegraph line over and along the
line of definite location so tlxed, and upon
reports of commissioners, as required by
said act, the president of the United Slater
duly accepted said railroad and telegraph
line 80 constructed and completed; that a,
the date of SO definitely locating said llnt
of RAILROAD and filing the plat thereof in thu
office of the commissioner of the genera
land Office, on July 6, 1852, the said lane
was not known as mineral land, and wa
more valuable for grazing than mining
purposes, and that the land was on sait
date public land to which the United State
had full title; that the lands were surveye,
in 1868 and township plat filed in the prop
CT land Office on Sept. 8. 1868; chat tn
character of the land was ascertained am
ana reported ana SHOWN upol
said plat to be agricultural and not min
eral land, and that the determination
report and showing have continually re
manned and they still remain of ful
force and effect: that after the completio
of the road the plaintiff listed the land
with other lands on q portion of the grant
and in November. 1886, filed the list in thu
district land Office at Helena, which wa
accepted and allowed, and that it is now o
record in the general land office; that a
the time of the acceptance no part of the
B land was known mineral land, or was o
greater value for mining than for grazing
or agricultural or TOWNSHIP purposes, or ha'
any value for mining purposes whatever
that during 1888 certain. veins or lode
bearing gold, silver and other preciou
metals we're discovered in the land, and 10
cations were made by Barden and others
The United States has refused to issue
patent to the railroad company. The valu
of the disputed premises is alleged to b
$4,000, and of the ore extracted 500. TIL
3 railroad asks Judgment for possession of tn
premises and the value of the ore ex
t tracted.