The Helena independent., 1894-11-20
DON'TOWN THE TOWN
HE CLAIMED PART OF THE TOWNSHIP
The Court Holds, However, That He Has No
Ground on Which 10 Base
His Suit.

portHnt case OF J, A. Carter versus ].
ID. Thompson and others, II involves
a large slice of The tnwnsite Of Helena,
which Carter laid claim TO on the
ground that the land was mineral ana
known TO be such at the time patent
was issued 10 the probate Judge, The
land has been sold and rcsold and is
mostly covered by valuable business
property now, The case came before
Judge Knowles on dcmurrcrs to the
complaint. Judge Knowles sustains the
demurrers ana dlsmisses the complaint
at Carter's costs. The decision says:
y, A. Carter IN this case commenced
an action 10 quiet title. lie sets forth
that he located the premises as a placer
mining claim There is no doubt that
the only title he has To the premises Is
derived from this location. The only
claim or interest the respondents have
In privity with the United States Ia
asserted by them under a pretended
entry and patent to the Helena towusite
OF Lewis and Clarke. The patent
shows a grant OF the premises in dis
pute, with other lands. to NJ. +. Truett,
probate judge OF Lewis and Clarke
county, in trust for the use and benefit
of the occupants of the townsite OF Hell
ena according TO their respective inter-
ests. In the bill Is an allegation that
the premises In dispute are mineral
land and known to bc such at the time
of and prior to the application to enter
the land under the townsite law. The
location of the claim under which Car
ter asserts title was made Sept. Z, 1898.
The townsite patent was issued June
10, 1872. The claim seems TO be that
ha M N..s.f h.. l,t. "a
was offered for sale at public auction.
Complainant has not noticed the diff
ference between the statutes which pro-
vide for the pre-emption OF public lands
and the one providing for the sale of
such lands for townsite purposes. and
the statute for the private sale OF lands.
in the case of Kansas Pacific Rail-
way versus Dunmeyer the supreme
court points out that sale. pre-emption
and homestead are three different
modes of acquiring an interest in pub
lie lands There may be added to this
list the acquiring an interest In public
lands by the proper officials In trust for
townsite purposes. Public lands could
be pre-empted or obtained as home
stead or for townsite purposes without
the land having been offered for sale at
public auction. Public lands would not
be acquired at private sale until such
an offer was made. So that the author
tiles cited upon that point have no
bearing.
at seems to be claimed that as the
lands were known to be mineral before
application or the issuing Of the patent,
that therefore II is void. The question
as TO whether the land was mineral or
not was one upon which the land de-
partment passed I'm issuing the patent
n NJ 1pnAft the nrOhqta fn1lrg In
speaking Of the functions of the land
department in the case of Steel VS..
Smelling company. the supreme court
said: Necessarily therefore II must con-
slider and pass upon the qualifications
OF the applicant, the acts he has per-
formed To secure the title, the nature Of
the land and whether IL Is Of the class
which is open TO sale. Its judgment
upon these matters Is that of a special
tribunal and is unassailable except by
direct proceedings for Its annulment
and Imitation
"Tn the case of Davis VS.. administra-
tor OF Wiebold the supreme caurt, in
speaking Of the effect of an exception
in grant OF mineral lands. said as to the
effect of a patent, The grant or patent
when issued would thus be held to carry
with il the determination of the proper
authorities that the land patented was
not subject TO the exception stated In
the case of Barden VS.. Northern Pacific,
the supreme court held that il was
within the province OF the land depart
ment 20 inquire into the character OF
lands when issuing a patent therefor,
as to whether It was mineral or not.
And n land were determined 10 be non
mineral this determination would be
conclusive in the absence OF fraud. Inn
position or mistake The court says
upon this point: Their judgment in
such cases is like that of other special
tribunals upon matters within their eN-
elusive Jurisdiction, unassailable except
by direct proceeding for its correction
or annulment'
"The conclusion Is that the land
granted to NJ. T. Truett In trust for the
Helena townsite must be classed as non
mineral IL WAS 50 determined by the
land department. This determination
cannot be attacked In collateral pro-
cecdlng. This was so held In the case
Of Bardcn VS. Northern Pacific. II any
fraud was practced or any mistake Of
law or fact occurred In issuing the pat
ent % Truett, complainant cannot take
advantage Of this, He had no rights az
that time To be effected by either the
fraud or mistake. His rights, If any,
accrued, according TO his own showing,
t,yenty-onp wears after issuing of the
patrnt. The supreme court has fully
decided this matter In the cases OF
Vance VS. Burbank and Bohall vs. Dtlln.
The only way this patent can be set
aside or annullcd is by "A direct proceed
ing instituted by the United states Tor
some fraud prncticed on II on account
of some mlsl8ka ~ fact or law occur
ring when the patent was issued. Com
Mini ionut therefore By his pwu showing
presents facts tp the court which show
that he is not entitled TO recover In this
case
"Thcre Is another point which ! have
not discussed In this case. The COM
pmlnant has only placer mining right
This may be- only a license tp work the
ground located or II may amount To an
easement whatever the right Is II can
only be- acquired In public land. not In
land that rs already patented. But ad-
nit that complainant has this license or
oascment. with only such a tile can he
Institute proceedings Ia annul patent
IL thc United States tp this ground; !
think not; do not think he has suill-
ciont interest IN the land 10 Justify him
lu maintaining such an action AZ this.
IIc has only a very limited Interest In
the land. n any, Rnd only tp the extent
mis- Interest IS intorfered with can he
maintain suit 20 remove "a cloud
Ithrrefrom, or 60 quiet title thereto. III
/ only a license us sDmc authorities mHtu-
Itnin he would have no such interests,
| for be would have no title 10 be quicted.
"The drmurrrrs In this case are BUS
Italppd and the bill dismissed az COM
Ipninnnt's costs"
| Judge Knowles also overruled the de-
Imurrer 60 the complaint In The case of
In. A. Pcurose versus the Pacific Mutual