The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-06-13
Judge Sawyer Rules in Favor OF the
Northern Pacific Railroad
Company.
Test Case of the Mineral Land Con-
troversy and a Dissent
ing Opinion.
Suggestion From Judge Sawyer That the
Case Be Taken to the Supreme
Court.

tho miners of tho state. Judge Lorenzo
Sawyer, has decided that to exclude the
lands from this operation of the grant they
must be known to be mineral at the date
when the line Of the road becomes definitely
fixed and a plat thereof filed in the general
land offioe-in this case on July 9, 1882.
The decision is given in the case of the
railroad against II. p. Barden and others,
who located some mineral claims on an odd
section a few miles west of Helena in 1888.
The case is considered a test one. Judge
Knowles, who sat in the case with Judge
Sawyer, dissents from the opinion of h ia
associate, but the views of Judge Sawyer
control until the question is finally deter
mined by a higher tribunal. Junge Sawyer's
opinion is In line with his decision in the
Central Pacific railway case involving the
same points. The opinion in part says:
"Under the various decisions of the gu
pfeme court, and others cited by that tri-
bunal, | am satisfied that to exclude tho
lands from the operation of the grant, they
must be known to be mineral at the date
when the line of the road becomes definitely
fixed, and a plat thereof filed in the general
lar office. and that the demurrer TO the
dissents in a very able opinion. In which he
very forcibly, and lucidly presents. as it
seems to me, all that can be said in oppo-
sition to the views herein expressed. My
" conclusions, however, / have reached
after repeated and thorough examination,
and l cannot see the case in any other
light. The points Of difference between us,
therefore must be left to the supreme court
to, authoritatively, determine. This, l be-
lieve, is a representative case several others
depending upon it's decision. l suppose
the facts in the complaint are alleged as
they must turn out in the proofs. If that
be 30. then a default might be safely suf-
fered, and a judgment entered before the
first OF July, and an appeal taken to the
United States supreme court. Otherwise,
the appeal will go to the circuit court of
appeals. 1t is desirable that a question af-
fectine interests 80 vast, should be deter
mined by the highest court in the land.
"Taking all the facts rs alleged, | think
there can be no doubt that the title to the
land in controversy is in the plaintiff. IN
in 1888 is sufficient to show that the Lam
containing them is mineral within the
meaning of the term as used in the act of
congress-; and that the lands are, therefore,
within the exception from the grant to
plaintiff of mineral land. This being the
case it becomes necessary to determine def
nitely what congress meant by the words
mot mineral in the first part of section 3.
and the words mineral lands in the clause
that all mineral lands be, and the same are,
hereby excluded from the operation of this
act, in the third provlso of the same sec
tion. And the meaning of these terms is
the great question. so deliberately and ably
discussed by counsel, upon which the de-
cision of the demurrer, it is conceded, must
turn. For the purposes of this decision, |
shall assume that the complaint shows q dis
covery of valuable mines i'll 1888, when the
several claims were located, such as would
have taken them out of the grant had they
been known, at the time the line of the
road was definitely fixed. This question ia
not new to tho circuit court of the northern
district of California, or to the state courts
of California and Nevada. The circuit
court had occasion to consider the precise
point, fully, and directly decided it in
Francoeur va. Newhouse IA Saw 35l, arising
under the legislative grant to the Central
Pacific Railroad company of July l, 1862.
The words of exception in that act are
that all mineral lands shall be excepted
from the operation of this act After ma
ture consideration in that case, it was held,
the circuit and district judges concurring,
that the meaning of the term mineral
lands as used in the exception, is, lands
that were not only mineral in fact, at the
time the grant attached and took effect, but
that they must be lands that were known
to be mineral. or at least, such as were APP
p%arently mineral, and generally recognized
ns such. The court then said: The next
question is. did the land in question pass,
by the Grant?
"These words mineral lands as used in
the act, must be construed in a practical
sense-as practical men would use them in
contracting about them-must be construed
with reference to their present known, or
Mt least, obviously apparent condition.
The supreme court of the United States,
although the precise question had not been
necessarily presented, had by implication,
held the same way in the several cases re-
ferred to in the decision of Francnur vs.
Nnuhlpcn VIpnn fnrfhnr nnrui1orottnv T
am still satisfied, upon principle, with the
ruling in those cases, and think that to
hold otherwise, would be disastrous to the
great interests of all the states having
mines of the precious metals, and to none
more SO than the state of Montana. The
defendants counsel assail the decision in the
Francoeur va. Newhouse case and insist that
the title to no land which, in fact, contained
valuable mines secreted in its lower depths
at the time the grant attached to the specific
lands and became perfect, passed to the
company under the railroad grant, though
the existence of the mineral was unknown
and unsupported at the time, and tn, re was
nothing to indicate that any mine WAS there
even though the existence of the mine could
not by reasonable diligence have been as
certained. And one of the senators from
Montana, in an elaborate speech in the
senate during n session of the last congress
criticising the opinion in Francoeur VS..
Newhouse with great ability supported the
same view. Said he, in the course of his
speech: ''If one thousand years hence a
mine is discovered in an odd section of
land. which it will pay to work. thereby it
will be demonstrated that on the I'd dry of
July. 1864, congress had that particular
land in Wow, when it is said, we except
that mineral land out of tho grant, and
that it not only then becomes, but it il
thereby demonstrated that it has always
been, during the Thousand years, the prop
elty of the United States And a senator
from California. II most skilful mining ex-
pert and II large owner of mines in Mon
tanu, interrupted the senator's speech with
the observation: In Il thousand years from
now l nave no doubt mines will be found in
many of those lands. Either the doctrine
of Francoeur ys. Newhouse, or that stated
by the senator from Montana. ns quoted,
must be the true doctrine. There is no
middle line can be drawn, and statutes of
limitations do not run against tho United
States.
But the construction urged by the sena-
tor and counsel in this case wonlu be I'M
reasonable in the extreme and utterly i'm
practicable and absurd in its consequences.
A construction, MS ii appears to me, that no
sensible, practicable Man could over delib-
erately contemplate. 1t would he ALSO
lutely destructive and subversive of NIL
titles To land in the state of Montana. and
nil new states wherein arc similar grants;
or at least destructive and subversive of
all confidence in and security of titles. A
severer blow could not we'll bo struck Mt
the interest and prosperity of the state at