The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1894-03-27
The Lower Courts Sustained
in All but one OF
Thorn.
Matters IN the District court Divorce oh
tainsd -Keiioge Pleads 90 Com
piaint-Dofauit Judgments

anu TOT Nhe rouha huu damages Tor hho
wrongful Withholding OF the same. The
company got judgment smetlsnd asked
for a new trial, which wss refused. An APP
peal was taken. In the trial Of the case tue
court permitted the plaintiff TO prove title
to the land In dispute b. Offering and usiug
IA evidence ths records aud certified copies
OF the pat mt ON the government. and all
the oonveyAnces OF its immediate and re-
mote grantors. without any sho ing OF the
loss or inability on IT. part 90 produce the
original OF such patent and deeds This
was done over ths objection Of abe de-
PENDANT. This action of the court is the
principal error assigned IN this ap-
peal. Tho company contended that this
action % the court was justified on the au-
thOritY Of Mckinstry versus Clark, Fourth
Montana, and Garfield Mining company
versus Hammer Sixth Montana. The su-
prene oourt opinion says these cases, in
80 far as they hold that the record OF coa-
veyaness, or certified co. les the Sof, are
admissible in evidence, without fifst show
ing the 10 OF the originals, or that they
are not within the power Of the party wish
ing 10 u.e them In evidence are In direct
conflict with the Law Of the state, not sup
poTtel by the elementary principles 81 law
or the great mass of adiudioations and
should therefore be In that respect modi-
fed Judgment u lower court reversed
and cause demanded for new trial. Opinion
by Chief Justioe PembeTton.
Isaas Ma,sr 90 al, respondents. versus
CornsliA CArothsrs. ct Hl., appellants; Ap-
peal from Meaeher countT ID WAS an
action in the nature of an eisctm Mt, In
which plaintiffs recovered Judgment A
action for a new tri / was overTuled and
an appeal taken. The tro. ertJ lnvolvel
we're five lots ia kelhait, which are pr
tion OF the keegan mining claim. On the
trial the defen iAnts offered 10 prove facts
tending to show adverse possession of the
premises in cont oversy for period sutfi-
GENTLY long TO bar the action, but pOf-
ton OF such . riod was necessarily prloi to
July q. 1887. tue date OF tue issuance OF
the United States patent for the ksegan
mining claim. The district court held that
such testimony showing adverse possession
prior 80 the issuance OF latent was not
competent. for the reason that tho statute
/ of limitations dill not commence TO run
against mining claim until the issu-
anee of United 81 les patents therefor.
This ruling 10 assigned as error. he dis
trict court in this respect followed exactly
tue decision IN King VS.. Thomas, Sixth
Montana, In which case precisely the same
| ONT was decided, Hnd In the same mannef
as In the case at bar. Ia fact on this az
peal il WAS necessary, as TO this point to
affirm the district ourt or directly over ule
the d0ct inc Of King versus Thomas.
But to reconsider King versus : homas,"
tho supreme court say. would be to dis
turb role of decisions and a principle as
10 titles Of cal property which are now Of
seven ,ears' standing. he case OF King
versus Ihomhs was decided in the year
1887. Ii is matter of history IN this state
aud IN this court that 40 shat time very
menv oases we're : led ana pending IN
which the plaintiffs we're q autees in United
States patents FOR mining claims. and the
defendants we're occupying PORTIONS Of the
surface of such claims for town
site imposes. The was great
contention az that time in such cases
aa to how the statute of limitations should
/ lie applied as against lands held 80 mining
elaine: that IL, whether tho statute should
begin 90 run at the date Of the location OF
the claim, o. ~ tho date Of toe Issuance Of
the final receipt from the land Office. Or a.
/ tho date Of the issuance Of she patent.
/ x M versus Thomas settled this contention,
/ and pnuouced the rule that has now been
4 undistur ed for seven years. IL must be
THAT many contentious have baen 3 tiled
/ under thus doctrine, and that man titles
20 real estate have been governed thereby.
W1eu " regard the histo % conflicts be-
I tween mining claimants IN this state. the
doctrine Of stare decsis' in regard 70 such
/ titles a penis 60 the court with very great
Z force. We feel at this hmo that We must
dsoiiue 20 reconsi Ter the case OF KING YER
sns lhomas."
hnotnet. oint usged by appellants was
+ that thry had offered testimony which WAS
/ nn equitable defense. This testimony Was
rs 10 meeting on the site of the pres NJ
town o. Me-. a .. a. which tho surface
I ground was Ind off 70 townsite purposes.
/ aud the OTIS taken ~. In support Of tals
was quoted the case Of Ia. DOT Yersua King,
4 where tie mine owRors petitioned tle Ero-
I bate Judge 30 enter 40 townait the 50 =
/ face, ground OF their mining claims at
/ Butte. The cup enc court hnds that the
4 result % the action Of she eitiz1ns Of Net
/ hart, including she mine owners, was not
TO obtain any United tatss title 10 a town
] site. but simply TO safe fecording office.
/ in which PERSONS could as 10 WAS said,
'tako NJ town lots" The order downing
a new trial md the iudgm M, are ailrmod.
I Opinion by Justice Dewitt he other
Z Judges concuf m the result without being
understood as questioning the docir ne %
King versus Ihomaf."
Patrick Crowley. a pellant, We sus county
! commissioners OF Gallattls and ". &.
Sloan, road supervisor. Crowley invoked
the p0wef OF tie court to nJoiu the open
ing Of c Dad through his mud. temper
nay niunction was granted. ubsrqueutly "A
I douu ~ was filed to the Compla Iut. on the
ground that 10 did not SKATE facts sulnc cut
, 60 constitute cause OF action. The de-
MUIR was sustained, mi tie tempurHrF
! Injunction dissolved. & oWly declined 90
mend his complaint. ana the case was dis
I missed az his cost. An appeal was taken
! 90 Inquire as TO the 6uihcIgncs of the com
/ rlaiut 10 sustain an injunction forbidding
I tho opening Of the road. The iecoi 4
I showed tLnt tie demurrer was sustatue !
&. cause tire complaint IA the opinion Of
the court. showed that the county commits
aiouers had proceeded regularly aud ac-
cordiug 90 tie PROVISIONS OF tine statute.
tie tupreme court examines the aims ou
/ which Cfuwlv based has churso that the
/ proceedings were VOID. tna OF these
I grounds WAS that twa 81 the cad viewers
were bruthers-iu-lnw aud ono of them n
peutlone. for th- opening the rost. The
court hnds this tie only objection 10 ihe
case which a YenTa 20 be % any iorct. and
says on tins point.
IA J. of paramount i'm urtance ns q safe
guard OF justice. thHt tHusr upgu. ute4 nn
/ ompoWsred 60 decide O On the lgnta OF
artiea involved 90 controve should ts
disiuttrcsted aud unbl. 500; ana itsobah >
even In the opening ui a public highway ths
better rule WoulI eKcialu from the viewers
those who petition Tor. 40 well - hose who
I oppose he eniug - the same. Sat mas
much Ha the statute Il violated IN appoint
lna n petitioner. and inasmuch as the action
/ OF the viewers ~ neithaf HAL nor control
ling. and thsir Recommendation 90 most Il
advisory 90 tho county commissioners. sub
Jet Go be objected TO, contra lieted ant
disregarded by the board ia its hnal Goa.
sideration, We think she point Of obi ctior
that the atitioneT was also risWe - m.
sufficient 90 avoid abe proceedings. lh'