The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-12-19
STATE SUPREME COURT
An Opinion Rendered in the
Maud S. Case.
LOWER COURT REVERSED
II Erred in Allowing the Intervention
Suit Plaintiffs Rights forfeited
and Claim Was Subject to
Relocation.
Special Dispatch to the Standard.


Special Dispatch to the Standard.
Helena, Dec. 1s.-The supreme court
to-day decided complicated mining
case appealed from the district court
or Silver Bow, involving mining
claim that appears to have been To-
Gated by three different sets of loca-
tors as the Maud S, the Ramsdell and
the Adverse. The title to the case is
as long as the litigation is complex.
James A. Murray and Joseph Rams
dell. plaintiffs and appellants, against
Jane Polglaze, Kate Lynch, l.. Price,
2. Shaw defendants and appellants, and
waiter A. Adams, Henry Muntzer
William Burton and others, interven-
ors and respondents. The defendants,
Polglaze and others, filed application
IN the United States land office Septem-
Der IT, 1892, for patent to Ramsdell
claim.
The plaintiffs, Murray and ,Ramsdell,
nled an adverse claim and commenced
suit, basing their claim upon a prior
location Of the property as the Maud
3. The defendants set up they were
In possession of the property long prior
to the plaintiff and il plaintiff had
ever made any location they had for
feited such right because of failure to
40 representation work in 1887 and
1883. Plaintiffs admitted they had not
done the representation work those
years, but alleged they made final entry
on the land in 1897 and obtained re-
ceiver's receipt showing they We're en-
titled to patent. The defendants had
made their location in January, 1883,
while the Maud S location was made
by one of the plaintiffs in May, 1881.
On the trial in Butte, plaintiffs Sc
cured judgment and upon appeal it
was reversed, because of error of trial
court in excluding decisions of local
land office, the commissioners of the
general land office and the secretary
of the interior setting aside the receipt
because of fraudulent statements as
to the representation work. Before the
second trial of the case in the district
court Walter Adams, Henry Muntzer
and others applied to the court FOR
permission to intervene, alleging that
they were entitled to the ground in
controversy as against both plaintiffs
and defendants under a location made
In January, 1894, as the Adverse lode
claim. The 1ntervenors alleged plain
tiffs had lost their right to claim be-
cause of failure to do representation
work from 1888 to 1898, or to resume
work before January 81, 1894, the date
of completion of adverse location as
alleged that they had lost their rights
plaintiffs receivers receipt of January
1. 1888, operated to withdraw the land
from the public domain and it was
open for exploration. The trial of the
second case resulted in judgment IN
favor of intervenors, both plaintiffs
and defendants appealed.
The supreme court in an opinion by
the chief justice that exhaustively re-
views the various contentious raised
on the arguments, reverses the lower
court, holding in effect that the lower
court erred in allowing the interven-
ton suit and that plaintiffs rights
We're forfeited by reason of failure to
do the necessary representation work.
Plaintiffs rights were forfeited
says the court, land the Maud s claim
the Ramsdell claim was located. 10
hold otherwise would be to lend assist
ance to the fraud attempted by plain
tiffs, and which would have been sue
cessful but for exposure made by de-
PENDANTS and their predecessors. 1t
would permit them to profit by their
own misconduct in violation of the
principles expressed in the wholesome
maxim: Memo memo allegans suam
turpitudinem est audiendus.' We are
not to be understood as holding that
the plaintiffs have no rights in any
event; we speak upon the facts in the
records before US. The trial court re-
fused to permit defendants to intro
duce the notice of location, and the
facts upon which it was based, upon
the ground that there had been no for
fixture of the Maud S claim. This was
error. If. upon another trial, however, |
1t should appear that the acts done
by the defendants on January, 1898, did |
not amount to valid location, they |
would be in position to take adVan- |
tage of plaintiffs forfeiture, and plain |
tiff would be entitled to judgment |
against them"
The court, in an opinion by Associate
Justice Hunt, affirmed the district |
SQUIRT of Yellowstone county in the case
of NoyeS Bros. and Cutler of st. Paul |
against A. e. Ross & Co. of Billings |
and l.. H. Fencke, involving the ques- |
ton of whether there had been any |
by Ross & Co. to Fencke which result |
ed In the foreclosure and sale of prop
erty to the detriment of plaintiff.
It appears that Ross & Co. borrowed |
s4,5O0 from Fencke. giving him a chat
tel mortgage upon their entire stock
of goods. A clause in the mortgage |
provided that the mortgagors, Ross &
CO., should draw s100 per month for
living expenses. Later Fenske took
possession, allowing Ross to continue
the management under his direction,
the receipts of the business to be de-
posted in the Yellowstone National
bank, of which Fencke Is a director
The business ran along in this way
from June until November in 1895
when Fencke foreclosed and applied |
the proceeds derived from the sale of
the goods at auction upon the amount
owed him by the concern. The pro-
reeds paid all but $3.50 of the indebted
ness. After the foreclosure Noyes
lrnS p lns. f-N,, l.,