The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-08-29
NOTICE FOR A PATENT.
Decision by the Local Land Officers
of Interest to Mining
Men.
What Constitutes a Conspicuous
Place in the Meaning Of the
Statute.
II Must Be Above The Level of tho Coun'
try and Where 1t Can BE Seen
Without Diligont Search.

Tho local land officers have rendered
decision Of interest 10 mining mon IN re-
fard to what constitutes q oonspicuou'
posting Of q notice for patent on a claim
Thc case was that Of Thos. Ferguson ct al
Va, Masnus Hanson. involving claims IL
Silver Bow county.
Nov. 3, 1891. Magnus Hanson OF al. filed
application for patent for the Priscilla,
GeorRiana and Doross lode mining claims.
Jan. Is, 1893, II. j. Haskell and K. l..
Knowles fled a protest. against said appli-
cation, alleging they appeared AS the at
tornsys of Thos. Ferguson ct al. that said
Ferguson ct al. were adverse claimants by
virtue of prior location Of the ground Gov
cred by said application; that they had
been dispossessed by Hanson ct al, who
applied for patent unknown to them. Fer
puson OF al: that the notice of applioatio n
was not published in a paper of general
circulation, and closed by asking protest.
ants be given an opportunity to ME all
davits and record evidence IN support OF
their claims. They we're advised no reason
was advanced why the application should
be delayed. did the applicant apply to
make entry on said AZ plication.
Jan. 20, 1893, Ferguson's ATTORNEYS filed
efhlavits bv Ferguson ct al. wherein was
recited she fact that they were prior 10
Gators. ousted by applicants; thAs the notice
Of application was published in a paper OF
limited circulation in the vicinity OF the
land: thas if notice of application was
posted on the claims they vera not posted
in conspicuous places. averrln2 on informa-
tion and BELIEF that such notices were
yestsd, if nj all, In some covered or quito
she-way placs; that applicants, on Nov. y.
1892, had mado no improvements OF value
on the ground. and had not done work or
labor thereon to exceed one and one-half
days.
They were again advised nothing was
sontained in tho afidavits TO bar entry by
applicants; that the allegation as TO posting
nosice on the land was vague and lacked
positivsnsss, and that none of the other
allegations disclosed a cause OF action.
Fob. 8, 1888, Ferguson et al. filed atli-
davits alleging thston Nov.a 1917. ana SUD,
seuuent dsya they went over every part and
portion of the and covered by their loca-
lions, making close, careful and dlllgent
search thereon for Il notice or Application
for patent and found no such notice. This
WAS followed by q like affidavit Feb. 10.
Georeiana loues contlcted tn onahont their
entire extent with the alleged prior loca-
tious of professionals. The loch. office.
uesmtnQ a cause Of action was thus dis
closed, issued notice ordering a hearing,
testimony TO be submitted before :. W.
shier, notaly public. of Butte.
The opinion says: March rs, 1893. MIR.
Hsskell hled a motion for q change In she
commissioner before whom testimony
would be submitted. making certain charges
of misconduct on the part of Notary Shier
upon former occasion, ana that he was
Objectionable to tine attorneys for protest.
ants. MI. Haskell on handing such motion
to the receiver insisted upon its being i'm
mediately granted without submission to or
consultation with the register. and delivered
himself Of thrsats as TO his futu Q course
on appeal il his demands We're not accsded
to. To say the least this was remarkable
cond not for one protesting to be learned in
the law, and, to speak mildly. scarcely CON
sistent with his petition to change the CON-
missioner upon ths score Of the latter's
rude, unRentlemanly and overbearing man
ne1:' hi. ,a asnsnssS 90 snd iur asm'1 thj.
office with q belief In the cha 90 upon
which the motion vas based. We are of
the opinion the real motive inspiring the
desire for a change of the commissioner
was disclosed by Mr.. Haskell's statement
subsequently made in this office. that
scute the case, and that they had been TO
little expense for reducing testimony TO
writing. having taken to Butte a stenoR-
from his (the Montana attorney
generally office TO do the work. Z,
MIR. Shier had done much suoh work In
the past for this office. and it was uni ,
formly OF the best character. Leaibly {
we'll bound. and perfect in every '
respect. Nc one, heretofore. had made any
coma plant against him, and In view OF all :
his We we're loath to believe he was not =
as we'll as competent, to serve in !
The capacity of commissioner. h
''On,March 2G, 1893, ths ATTORNEYS for both
parties Joined in u request that w. T. Lip
L%incott be appointed in the place of $. W.
shisr, which was granted by order made
March 81, 1881
The local officers dismiss all the alleea-
lions made by the professionals except the
charge taat the notices of application were
not CONSEQUENTLY posted. On this point
the decision says:
There IL now to be considered tho sole
charge, that the applications for I
patent vera not Consplouousiy posted uton
the claims during the period Of publication.
Protestants apparently abandon their :
that notices of application were
not posted upon the locutlons, but hold
they were not conspicaously posted; that
place within the meaning OF section 1926 Il.
s., and aftst careful confederation of the
submitted, we are of the opinion
they must be sustained in this. 1t does
not appear that there are any shaft or Other
houses n on any of the locations, nor any
other e4eetions. not even so much az q
windlass staff or upright. Tbs ground is
b oxen with rocky knolls, with
many boulders thereon; the disRsams and
of application were tackled in boxes
abeut two feet square and from eight to
twGtvs inches deep. These were placed
upon the ground and fixed in place by
focks piled against and around them; they
wore not attached to posts or stakes or In
any manner raised above the general sar-
face of ths ground.
'Concedlng it trna that notices were 40
posted, and the evl1encs establishes this,
We are of the opinion 1t was not a hosting
IN q conspicuous place within the meaning
OF section 2o25, Revised Statutes. The
purpose of the statute 10. that by tnis uost.
ing the fact that The ground Ia being an
pied fc: may become known to those who
III on the ground with 81 reasonable de-
gree OF attention 20 or observation of thinps !
on the surface. They are not expected 4
nor eQuired to make a thorough. exhaust-
I've and dlligent search. for il ia Applicants
duty to 80 post in such a conspicuous place
that II Will attract attention.
10 post Ineans to attach to 4 post or other
usual place of Aiming public ~notiosa, and a
conaplc0ous place is one open TO the view.
obvious 10 the eve, easy to be seen.
Ihsn, to comply with the terms
Of this statute. the notice should be afix ,t
to Il post or other usual place of ~atIixino
such notices, IN q plaos open to the view
and easy to be seen. Now. We do not think
notices placed within open boxes. two (,
feet square, oct on the surface OF ,be
ground. covered by rooks and boulders :
some of them more than tn GO feet hish Z
The boxes themselves fixed in place D,
rocks piled around and on top Of them. not =,
the discovery shafts or other work