The Helena independent., 1893-12-05
Corbl.. Of the ALLEGED Montana Central
Freight Car Thieves, Discharged From
Custody Yesterday.

his motion and TO hle another. The plain
tits counsel in the supreme court con
tended that by the withdrawal Of the mo
tion for new trial BY leave OF eoart. b
withdrew his notice Of intention to move
The decision goes over the entire question
and 10 In favor Of the appellant.
Another decision was that in the case Of
Kate Mccormick ". Mary Gleim. In tn
lower court Nra Mccormick sued to re-
cover possession OF certain real sstate ant
the value OF the rents and profits thereo
during the period Of unlawful detention
Tho lower court decided in favor Of th'
ulaintiff. giving her possession of the premi-
sss and Judgment for $40. The dsfendan
appealed to the supreme court. and IN
decision BY Justioe Harwood. the osherl
eoncurrine, the ruling Of the lower court Il
In the case Of Martin Doyle ". James
Cove ct al. the motion for rehsaHinR was
evsrruled.
The most important decision handed
down was that In the case Of Leonard +.
Colburn respondent. ". the Northern Pa
cinc railroad company. Tho action was TO
recover 1857. 40 with interest. paid BY res
pondsnt to appellant upon certain CON
tract for tho sale Of lands. The opinion
says:
Ihe complaint alleges tno co5potate Ok
istence OF the appellant under the acs OF
congress approved July 2. 1864, the grant of
lands made to the appellant by that act OF
congress: the entering into q contract by
appellant with one Nathan Frost to sell.
convey, and transfer the north half OF the
southeast quarter OF section twenty-three.
township three south. OF range four east.
she subsequent transfer of the contract to
respondent; and the compliance with its
conditions BY respondent and his prsdeoss-
sors in interest. including tho paymens OF
purchase price of said land. the total
amounting to 1857. 40. The complaint also
thereof, as eovenantsd in said contract
and that on the 25th day Of January. 1891,
the secretary Of the interior held
that the said land did not pass
to the railroad company under ita
grant, but remained public Land; ard; and tur.
thor alleges that in the year 1891 patent
for the said land was issued by the United
States to respondents. It then alleges tn,
demand for the return OF the purchase
price OF the land paid under the contract
and the refusal of the defendant to return
the Same.
Ins answer admits the corporate exist
snce Of appellant; and sets up the grant of
lands made to appellant by the sot Of con-
R1ess approved July q 1864. II alleges that
the railroad com pany fixed tbs line OF its
general route through ths territory OF Mon.
tana February q, 1872 and. having located
it, line Of definite location. fixed tho same
by fling plat thereof in the Office OF tho
commissioner of the general land office.
July 6. 1882. It then alleges that the land
In controversy WAS ON and within forty
miles of tho line of the road, 30 definitely
6xsd a. aforesaid. II also alleges the sub
sequent completion Of this road. as required
h. q ho - Toll nd Ia q
anos BY the president of the United States,
such completion and acceptance being prior
TO the contract OF sale mentioned In the
complaint. It admits the existence of .
homestead entry on the land January %.
1871, which entry was ancellsd on o. about
Dec. 8. 1872, having been relinQuishsd By
Anna MoCayty, tho entryman. II also ad-
nits that a declaratory statement was filed
for the land Dec. 20. 1874, by one Nathan
FarnhAm. but sets up that thoreGfts7, and
long prior to July 6. 1882 Farnham had
abandoned the land. if. indeed he ever
settled thereon; that there were no entries
or filings, or application to make entry or
filing upon said lands, Whatsoever, prior to
July 6. 1882. and that the said land was. on
July 6. 1882, public land to which ths
United States had full title, not reserved,
sold. granted or otherwise appropriated,
and free from presumption or other claims
or rights. a. set forth in said answer, and
that said land was, and at all times has
been. non-mins.nl land. 1t admits the
making OF the contract with said Nathan
Frost on Jan. 1886. and sets forth said con-
tract in full 1t admits tho assignment of
said contract to said respondent; and sets
up that on the compliance with the terms
of tho contract by respondents and his pre-
decsgsots in interest, the said appellant
made, executed anG delivered to said ,c-
sroadant its deed, wherein and whereby il
duly conveyed the title to said land to
said Hesponde as in and by said contract
II had agreed to do; and that in and by said
deed said defendant oovenanted and agreed
to and with said rsspondent. his heirs and
assigns. that it shall and will warrant and
defend the said title to said granted prem
ises unto the said plaintiff, his heirs ant
assigns, forever. against the lawful claims
Of all persons whomsosver, excepting Sol
taxes and ASSESSMENTS. 1t then sets up the
application to enter the land by one John
r. Foster. the respondents immediate
Qrantor, under the claim that the land was
excepted from the grant to the Northern
Pacific; the ordering of Eearing on said
application by the commissioner OF the gen.
srnl land office; the decision by tbs register
and receiver OF the United States district
land Office at Bozeman. Mont, made there.
on during the year 1888; tho appeal taken
from said decision to the commissioner OF
the general land Office; the decision OF the
commissioner Of the general land Office,
III IoOIuoIys ACOo, uOlulHR b0lu tAnu
to be excluded from said grant to the
Northern Pacific: the appeal by the COM
pany from that decision to the SEQ
retary Of the interior; aad the de-
oision OF the secretary, adverse to the com
pany made Dec. II. 1880, setting forth sx!t
decision in full. 1t denies. from lack oi
Information and belief. thas any patent ha!
been issued for the land to respondent o.
anyone else. 1t ssts up that the land wal
non-minsrAl public land, to which The
United States had full title, not reserved
sold, granted. or otherwise appropriated
and free from pre-emption or other claiml
or rights. at all times mentioned in tho an
swer. except as particularly set forth in sale
answer. II denies that the respondent ha
been ousted or disturbed in his possession
or that his title has been impaired or as
sailed in any manner whatsoever, or tina
there has been any breach of warranty con
tanned in said contract and deed, and do
nies that there is any amount duo from ap
pellant to respondent, or that responder
has suffered any injury. 1t slao sets up tn
fact that the respondent knew long prior l.
the time Of the assignment of the contrac
to him by said Foster of the said pyetende,
claim that ths land was excepted from til
grant to tho Northern Pacific and was no
the pro 9erty Of tho company.
To this answer respondent denu.re
upon the ground that it did not state IN ct
sufficient to constitute q defense. II,
court below. after hearing. sustained tn
demurrer. Appellant declining to amen,