The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-12-14
Commissioner Carter Decides the
Case Of Barden Against the
Northern Pacific.
The Land In Question Is Excepted
From the Company's
Grant.
Ownership OF Valuable Property within
Two Miles Of the City OF
Helena in Dispute.

| IAN . "a SAAANS AZ bAS -r~
by Commissioner Carter. the text of which
has been received at the Helena land office.
1t bears upon the all important question of
what are mineral lands as contemplated to
bo exempt from the grant of the Northern
Pacific. The case is already celebrated
under the title OF "Riohard p. Bsrden and
others. mineral claimants. against the
Northern Pacific Railroad company" Bar
den and associates took up five mineral
claims, the Vanderbilt, -Four Jacks,
Chauncey Depew, New York Central and
Hudson River lodes, comprising ninety-six
acres Of very valuable land two miles from
Helena. The register and receiver of the
Helena office decided that the Vanderbilt
lode was mineral, but that the others were
not. The commissioner of the general
land Office decides hat all the claims are
mineral in character. This same land, it
will be remembered, has been in litigation
for a long time. The late
Judge Sawyer, during visit
to Helena shortly before his death, deliv-
cred an opinion on the case in the United
States circuit court in which he held that
as the land was not known to be mineral
at the time the railroad filed its map of
definite location, it was not exempted from
the grant. At the same time he did not
pass Oh the mineral or non-mineral charac-
ter of the land. This the commissioner of
the general land Office does. The case will
have to 60 before the United States SUI
preme court before the final settlement of
the question i'll dispute is reached, and not
until then will it be definitely known what
was the full meaning of the word min
eral'' in the railroad land grant acts.
Commissioner Garter, in his opinion.
says the land in controversy was surveyed
in 1868, and returned as agricultural land
by the surveyor general. The Northern
Pacifc's map OF definite location of the
road opposite these claims was filed in
the general land Office July 6, 1882, and the
tracts were selected Nov. s. 1886, by the
but no patent has been issued.
In 1889 the mineral claimants applied for a
patent, which the Helena office did not
allow. On Dec. 81 of that year Richard
2. Barden made affidavit, alleging that the
land was mineral in character, and there
fore excepted from the operation of the
company's grant. A hearing was ordered,
and the evidence given induced the register
and receiver of the Helena land office to
find that the Vanderbilt lode came within
the meaning of the term mineral lands;"
and that a patent should be issued; and
that the other claims were not mineral.
The testimony was that all the claims con-
tanned gold bearing quartz. Inc commits
sioner says: upon carefully considerin0all
of the evidence before me l am of the opln-
ion that it shows that mineral exists in each
of these mining claims in sufficient
quantity to add to its b and justify
expenditure for the extraction of ore and
its expectation. In my Judgment the evil
dence is sufficient to warrant the finding
that all the land involved in this contro-
rn rc1, Il, min oral land within fha naAnlnO
of that term as used in the act granting
land to the Northern Pacific Railroad"
The selection by the railroad is ordered
cancelled.
In conclusion the commissioner says:
my attention has been called by the COM
panv's counsel to a case between these par
ties involving this same land, which was
heard in tina United States court
for Montana. The case appears to have
been a suit at law brought by the company
to recover possession of the premises and
one hundred dollars, the value of the ore
by the defendants. In the COM
plant the company alleged ownership of
the property under its grant and as 1T was
not known to be mineral land at the
time of the filing of the map of definite 10
of the road. The defendants de-
to the complaint. The presiding
Judge held that the demurrer should be
overruled, and the district judge sitting in
the case rendered a dissenting opinion, !
that the demurrer should be sus-
tanned. 1 am further advised that said
case is now pending in the United States
supreme court. The principal question
considered by the court in the case cited
was fully considered by the honorable sec.
retary in Central Pacific VS.. Valentine, and
the rule adopted in that case is hetein held
TO control the case now being considered in
so far as it is applicable thereto"
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