The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-11-15
BELONGS TO THE ROAD.
Judge Knowles Decides That the
Northern Pacific Owns
Mclean Park.
Decision Against the Company
for Lands in the Bitter
Root.
Ths Defendants in tho Maria Amncker
CRse Relied on q United States
Patent.

Tive decisions involving the contribution
OF the land grant Of the Northern Pacific
Railroad company were delivered yesterday
in the United States circuit court by Judge
Knowles. The frst decision is In the
Amacker case. wherein he decides that the
railroad company is entitled to the posses
sion OF the Mclean park addition to Hell
ena. to which the defendants claimed title
by virtue Of q United States patent. The
other ease involves title to land in the Bit
ter Root valley and ia decided against the
railroad company.
In ths Amaeker case the railroad oom-
pany brought an action in the nature of
ejactmens to recover possession Of the 9 "a
of the NV "A Of section u, township 10,
north OF range 3 west, known as Mclean
Park addition to the city Of Helena. In
his decision Judge Knowles says the evil
dencs fully established as = fact that tbs
railroad received from the United States In
1864 Q grant of odd sections, not IMMORAL,
to the amount of twenty sections per mile
on each side of the road. In October, 1868.
William M. Scott filed in the Helena
land Office q declaratory statement to the
eject that it was his intention to claim the
land as a presumption right under the pro-
visions Of the act Of congress Of September,
1S4l. In 1869 he built q cabin on the land
and lived there until the fall of that year,
when he left and moved to Helena. where
he lived until 1878 and then removed to
Butte. He never returned to the land,
which Ia within three miles Of Helena. In
May, 1872, William Mclean filed an appli-
cation in the Helena land office for tho land
az part of a homestead. 1t does not appear
whether he lived on the lane or not, or
made any improvements. IN Dec. !, 1874,
the commissioner of the general land Office
wrote to the Helena land officers informing
them that this homestead entry of Nc
Leans, with others, was held for cancella-
tion on the ground that it was made subse-
quent to the time the railroad right at
taohed, and directing the officers to serve
notice ON Mclean TO show cause why 1t
should not be cancelled. Whether notice was
served does not appear, but the entries
were cancelled. The efn route of sthe
railroad was fixed on July 2, 1852. and in
August, 1882, Mclean died, and March Is.
1883, Maria Amacker. his widow. made APP
plication to enter the homestead entry
made by her husband. The railroad con-
tested the application. The commission
ers of the general land office on Feb. 20,
1856, sustained her and the railroad APP
pealed to the secretary of the interior, who
affirmed the decision ON March %, 1887. and
a patent was awarded to her. The court
quotes the provisions of the United States
statute considered in deciding this ques-
ton, and says section three refers to en-
tries made subsequent to the expiration of
q land grant. and has no reference to any
such question as Is presented in this case.
The grant to the railroad was one in praes-
enti and conveyed to il legal title to all Soc
tions of public land, not mineral, OIL
each side of the line Of its road an
twenty miles in Montana, it then being a
territory, or in all forty sections per mile
wherever the United states should have
full title thereto, and then were not re-
served, said, granted or otherwise appro-
Irlatsd and free from presumption or other
claim or right at the time the route Of its
road should be definitely fixed and a plat
thereof filed in the office of the commits
sioner of the general lane office. Until the
road was definitely fixed the grant was i'll
the nature of a float, then it received re-
cision and became the certain and specitia
land as of the date of the grant. Neither
Mclean nor his widow exercised the privi-
lege, if any Was granted, by the act of 1880.
The rights granted to Mclean by the stat
ute of 1876 were lost by his failure to COM
ply with the provisions of the statute re-
quirinR final proofs to be made in a certain
time and the canoellation of his entry in
1879. Judge Knowles says the railroad
company is the owner Of the land and en-
titled to its possession, and that the de-
PENDANTS are in POSSESSION Of the same
without its consent, and w%rongfully.
The second case is that of the Northern
Pacific railroad W. James r. Hinohman ct
al, also an action in the nature of an eject
mont brought by the railroad to recover
certain lands in the Bitter Root valley,
being section II, township II, north Of
range 20 west. Hinchman settled ON 160
acres on Oct. 3. 1884. claiming it as a home-
stead. and on Dec. &. 1887, made final
proofs and p~re-empted the land. and on
Nov. 6. 1883. received q patent. 1t appears
that a treaty was made with the Flathead
Indians in 1866. A careful survey was made
of lands in the Bitter Root valley above the
Lo Lo fork before 1871, among which are
the lands in dispute. The president of the
United States decided that the lands were
better adapted to ths use Of the Indians
han as y general reservation, and issued an
order to that effect on Nov. IA, 1871. In
that order il was provided that any Indians
residing in the Bitter Root valley who de-
sired to become citizens, and residing ON
the lands, which they then occupied. net
exceeding in quantity what Ia sllowsdu under
the homestead and presumption laws to all
citizens. suoh persons should be permit
ted to remain in the valley upon making
the same known TO, the superintendent OF
Indian affairs. The agreed statement of
facts in the case shows that the
Indians continued in possession
of the lands, and were there
in August. 1879, and one of their chiefs, Chat
lot. ia yet there with several hundred In
dams under him. Since June, 1872. fifty
four patents for 3. 24O acres within the odd
sections were issued to the Indians who rei
fused to accept them fearing their tribal
relations would be severed. Chariot has
lived on one of the sections since 1856. 1t
was agreed that the tracts were not claimed
by the Indians at the date of the fling of
the map of definite location. Judge
Knwles holds that until the general route
was established the lands were subject to
disl osal by the United States. and were ap-
propriated by congress to other purposes
than for building a railroad; that congress
had the right to do this and violated no
contract with the railroad, and that this
Hpprop iation existed when the definite To-