The Caldwell tribune. [volume] (Caldwell, Idaho Territory [Idaho]) 1883-1928, 1894-05-02
is VERY HOPEFUL
Mineral Land Commissioner Irwin
Home From Washington.
ARGUMENT OF THE CASE
Judge Dixon and Solicitor General Max
we'll Made q Strong Presents
of the Law and Facts.

BUTTE, April 20 Next to the silver
question nothing is of so much interes,
to the people o. Montana as the mineral
land question. Mineral Land Commits
sioner George w. Irwin has just returned
from Washington and reports favorable
prospects IN the long standing test case
of Richard p. Barden, William Muth
James r. Boyce and Ada F.. Boyce
against the Northern Pacific Railroad
company. The argument in this case
took place on April IL. Judge w. w.
Dixon opened the argument. He was
followed by James 7. Carter, the Bering
sea man, and Lawrence Maxwell, IT,,
the solicitor general of the United
States. closed the argument. Mr. Max.
we'll 10 the court officer of the attorney
generals ONCE. Mr.. Dixon and Mr.
Irwin feared that Mr.. Maxwell might
not be up in the land question, so they
went to him a number of times until he
became thoroughly posted on the sub.
ject. In his speech he showed thor
ough knowledge of the subject. He is a
very fine lawyer, able to cope with any
lawyer practicing in the supreme court.
| The case was heard ana submitted and
| will be decided by May Is The ques-
tons asked by the different judges of
the attorneys seemed to indicate to Mr..
Irwin that majority of the court
leaned our way. There are nine briefs
in the case. All are printed and are
very exhaustive, but the last one is a
very short epitome of what we contend
for. On its back, after the title of the
case. he has the endorsement "Brief of
the solicitor generals argument" and
following that is the further indorse-
meut, "Do the mines of Idaho and Mon.
tana belong to the United States or to
the Northern Pacific Railroad com.
pany?" He says that this is an action
In ejectment in which the Northern Pa
ciic must recover if at all on the
strength of it, own title. 1t must there
fore show title to mineral lands. But
its grant, instead of being for mineral
lands, is for every alternate section of
land not mineral" ETC., with the prom
Use "that all mineral lands be and the
same are hereby excluded from the
operation of this act" But the CON-
plant contains the further avernment
that the lands were not known to be
mineral until after the fling of the map
of definite location. The solicitor gen.
erai could not construe the grant as
conveying to road all lands not known
to be mineral at the time of fling its
map of definite location; first, because
that would interpolate term not found
in the act and to violate the rule which
forbids the enlargement of public grants
by implication; second, because the cir.
cumstances attending the grant are in
consistent with such construction, At
the time of the grant little was known
of the country through which the road
was to pass. Congress could not there.
fore have meant to reserve simply lands
not known to be mineral at the time of
the act, for practically nothing was
known and such a reservation would
have been of no avail.
But it Is said that this construction,
which excludes lands in fact mineral
from the operation of the grant, works
a hardship because it leaves the title of
the company forever uncertain in all Its
lands and liable to be defeated at any
time by the discovery of minerals. The
brief contends that after the secretary
of the interior has decided that any
particular lands are not mineral and has
issued patent therefor, the title is not
liable to be defeated by the subsequent
discovery of minerals. The road pro-
poses that acquire all lands not known
to be mineral at tie lime of ii ing of
map of definite location. But that plan
affords no opportunity to the govern.
ment to protect itself from being dlvest.
ed of the mineral lands which congress
seems to have been so anxious to re-
serve; for prior TO the filing of the map
the government cannot know where the
road is to be located, and cannot there
fore make any Investigation to ascertain |
whether the lands which may be taken |
are or are not mineral, and after the |
fling 1t Is too late, for by the act of fl |
ing the map the rights of the railroad
are fixed, according to the contention.
A construction 50 unreasonable and un-
fair cannot be accepted.
Mr.. Maxwell submitted that the
Pacific Railroad company can
not claim title to unpatented land which
It admits to be mineral in fact, and that
the judgment of the circuit court should
therefore be reversed with directions
70 sustain the demurrer and dismiss the
Accidentally Killed.
MIssouLA, April 2s.-A report has
Just reached here Of the accidental
'hooting of David Brown, six miles
rom Helmville, on stage going to
Avon. There were three passengers in
he stage beside the driver and Brown
vas sitting on the front seat, with
life leaning on his knees with the
nuzzle against his breast. 1t Is sup
IosA6 that inlf If The a 4 0A diarha ru>N