The Weiser signal. [volume] (Weiser, Idaho) 1890-1904, 1894-05-03
IS VERY HOPEFUL
Mineral Land Commissioner Irwin
Home From Washington.
ARGUMENT OF THE CASE
Judge Dixon and Solicitor General Max
well Made IA Strong Presentation
OF the Law and Facts.

BUTTE, April 2s -Next TO the silver
question nothing Is of so much interest
to the people o. Montana as the minera
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. Bsrden, William Muth
James X. 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 I. Carter, the Berine
sea man, and Lawrence Maxwell, ir.,
the solicitor general of the United
States, closed the argument. Mr.. Max.
well Is the court officer of the attorney
generals office. 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 a thor.
ough knowledge OF the subject lie is a
very fine lawyer, able to cope with any
lawyer practicing In the supreme court.
The case was heard and submitted and
Will be decided by May Is The cues.
tons asked by the different judges OF
the attorneys seemed to Indicate to Mr..
irwin that a 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-
ment, edo the mines of Idaho and Mon.
tana belong to the United States or to
the Northern Pacific Railroad COM
panyN He says that this is an action
in ejectment in which the Northern Pa
cine must recover If at all on the
strength of it's own title. 1t must there
fore show title to mineral lands. Bnt
Its grant, instead of being for mineral
lands, is for every alternate section of
land not mineral" etc, with the prom
lse THAT all mineral lands be and the
same are hereby excluded from the
operation OF this act" But the COM
plant contains the further avernment
that the lands were not known to he
mineral until after the filing of the map
OF definite location. The solicitor gen.
eral could not construe the grant az
to road all lands not known
TO be mineral at the time of filing its
map of definite location; first, because
that would interpolate a term not found
In the act and to violate the rule which
foroids the enlargement of public grants
by Implication; second, because the cir
cumstances attending the grant are In
consistent with such a 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 II is said that this construction.
which excludes lands In fact mineral
from the operation of the grant, works
hardship because 1t leaves the title of
he company forever uncertain in all its
ands and liable to be defeated at anv
lime by the discovery of minerals. The
'rlef contends that after the secretary
If the interior has decided that anv
lands are not mineral and ba.
ssued patent therefor, the title is not
liable to be defeated by the subsequent
discovery of minerals. The road pro-
POSES that 1t acquire al lar is not known
o De mineral at the time of filing of
nap of definite location. But that plan
hords no opportunity to the govern
nent to protect itself from being dlyest-
ID OF the mineral lands which congress
Gems to have been so anxious to re.
erve for prior TO the filing Of the map
ne government cannot know where the
DAD Is to be located, and cannot there
ore make any investigation to ascertain
whether the lands which may be taken
re or are not mineral, and after the
ling it is too late, for by the act of NJ.
ng the map the rights of the railroad
re liked, according TO the contention
construction so unreasonable and nm.
air cannot be accepted.
Mr. Maxwell submitted that the
'orthern Pacific Railroad company can
OF claim title to unpatented land which
admits to be mineral In fact, and that
he Judgment of the circuit court should
therefore, be reversed with direction,
sustain the demurrer and dismiss tho
omplaint.
Accidentally Killed.
MIsSouLA, April oS.-A reoort h..