The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-07-15
MORAN LOSES THE LOT.
The Ground on Which Mcguire In
tended to Build an Opera
House.
An Important Ruling to Holders of
Deeds From Probate
Judges.
A Sentence of Fourteen Years in the Peni-
Tertiary Affirmed by the Supreme
Court.

An opinion was rendered by Judge Buck
yesterday in the district court which is of
considerable interest to people holding pro-
bate Judge deeds to lots in the original
townsite of Helena since the approval of the
Mcintyre survey. The decision 10 to the
effect that all such deeds are mere waste
paper so far as they effect. or may have
affected, the rights of actua! occupants of
the lots at the date of the approval of the
survey. Th case is that of Joseph Horsky
against Patrick Moran. Judge Buck in
part says: THE plaintiff, Horsky, brings
this action to quiet title to a fractional
piece Of ground located on Main street in
the original TOWNSHIP of Helena. The facte
admitted by the pleadings are substantially
as.follows:Whe the probate Judge of Lewis
and Clarke county as trustee for its occu-
occupants made entry of the TOWNSHIP of
of Helena on March 2, 1869, the defendent.
Moran, resided upon and was in possession
of this fractional piece of land. The trus-
tee caused the townsite to be plated
by one Il. G. Wheaton, and the Wheaton
plat of survey was the plat with reference
to which he issued deeds to original claim
ants of town lots. In 1885, under author
ity Of an act of the legislature, a new plat
OF the original Helena townsite was pre-
pared. On the latter plat appears this
fraction, designated az lot 81, block 81,
The Mcintyre plat shows the contiguous
lots to be Nos. 10 and 20. The fraction
does not appear On the Wheaton plat under
any specific designation, or as a separate
parcel of land. If 1t is shown at all, it is
included in lots 10 and 20, of block 81,
thereof. The defendant never received or
applied for q deed to this fraction, except
as hereinafter appears. He allowed posses
sion of it to pass to the plaintiff and his
predecessors in interest, who received deeds
to lots 10 and 20. block 81, in accordance
with the Wheaton plat in 1874. Ever
since 1874 the plaintiff has
been in the exclusive and actual possession
of this fraction and certain lands which he
claims were numbered on the Wheaton
plat as lots II, 10, 10 and 20, contiguous to
the same. In 1883, the defendant applied
for and obtained a deed to the land in con-
t%roversy in accordance with the Mcintyre
plat, which, as stated, designated the tract
"a lot 81, in block 81. The defendant con-
tends that he was one of the beneiciaries
for whom the townsite of Helena was
ASSAS bAtho GAA1 was AOVoA 0AOWu
upon any plat until 1885; that, consequent
ly, he never was in a position to obtain a
deed for it until after said year, and that
the deed received by him in 1888 relates
back to, and evidences and confirms his
beneficiary title of 1863.
Fl denies in his answer that lots II, lS,
IS and 20. block 81, referred to in plaintiffs
complaint, occupy the same position on the
earth's surface as the lots so numbered
which had been originally plutted by
Wheaton. He AYERS. also, by his mega
tons, that the Wheaton plat did not at the
time plaintiffs deeds were executed correct
ly show the geographical location of Main
and jackson streets, which are referred to
In said deeds as boundaries. The language
OF defendants denials in this respect is
somewhat vague and ambiguous. But it is
Incidentally his intention to assert that
neither this land in dispute nor the con-
tiguous parcels of which plaintiff is in oc-
cupation, claiming the same by virtue of
deeds, were ever held by virtue of any valid
deeds, 70 put it more clearly, defendant
admits that plaintiff has been an occupant
of said lands for the time alleged, but de-
MES that the deeds to him and his prede-
cessors were for identical parcels of lands"
The defendant further contends that
until the Mcintyre survey was made and
the deed of this fraction executed to him,
the title thereto remained virtually in the
government of the United States. and that
consequently the statute of limitations
cannot be invoked in plaintiffs behalf to
establish a right to same by adverse possess
SION. 1t Is a correct proposition, established
by many decisions, that the probate Judge
entered the townsite of Helena and received
a patent thereto as a trustee for the occu-
pants OF the land so entered and patented.'
'When the probate Judge received a
patent to the townsite of Helena all the oc-
cupants therein had acquired a vested
right each to the tract of land actually oc-
cupled by himself This darandopt oyo,