The Butte inter mountain., 1903-12-29
TRACT SITUATED ON THE RIGHT
BANK OF THE MlSSOULA RIVER
NEAR FLATHEAD CREEK.
INTEREST TO MINING MEN
Action Has Aroused Wide Comment, in
View OF the Character Of the ln-
terests Involved in It.
SPECIAL TO THE INTER MouNrA1v.

S1oner oil the gecilral land Office IN the Dig
Day placer mine case, involving land sit
uated on the right bank of the Missoula
river at the mouth Of Flat creek, near the
town of Superior. The commissioner af-
firms the local land Office in holding that
"A. =. Johnson is entitled 10 the land
The case is Of more or less interest TO
mining men and the story of the various
features of the litigation is not unintef-
csting to the general public.
On June 1o, 1901, James S. Harman
made final homestead entry for Lot 2, Sec
ton ~, Township ~ north, Range so
west, on an application filed November
e6, 1900. February a. 1901. Mike Riley
offered for filing a homestead application
for a lot OF the same section. which was
rejected by reason of a supposed conflict
with the entry of the placer claim, nine
years previous. Riley appealed from the
decision to the general land Office.
A. p. Johnston, on February 81, 1901
one OF the placer patentees--sent a filing
direct TO the Washington land Office. as
protest against the applied for homestead
entry, alleging in substance, that the entry
to Lot q Section ~, conflicied with the
limits of the Big Day placer claims; also,
that the latter is within the limits OF the
town of Superior, and that its location,
In Township I6 north, Range IS west, in
stead Of in Township ~ north, Range 26
west, was made in error. He asked TO be
heard on the matter. After considering
Johnston's protested affidavit, the general
commissioner, under date Of March "a.
1901, called upon the surveyor general OF
Montana for certificate showing the
actual position OF the placer claim with
reference to the section.> township and
range. The reply was that the records
were not specific enough TO determine. but
that the Montana records did not show
that Lots ! and OF Section ~ were SO
embraced. He further stated that the lots
lay north OF the bank of >the Missoula
river. while the placer actually crossed the
stream, lying on both banks. its greatest
area lying OH the southern side: and that.
through error an amended survey would
DE necessary TO adjust the claims, as they
did conflict ON the present plats.
The survcyor-general, on April II, 1901,
was directed TO suggest TO the patentees
Of the Big Day placer the advisibility of
surrcndering their patent, with the added
request that il be Cancelled, so that a new
and correct survey could be made 4
basis for proceedings for second patent,
after which there should be reconvey-
ance TO the United states OF the land pur
porting to be covered by the old patent
This was formally complied with, Johnston
applying for an amended survey of his
claim, but at the same time surrendering
his right TO the claim and agreeing to
convey to the government all land covered
by the original deed.
James s. Harman, under date OF Sep
tembcr 81, 1901, entered a protest against
Johnston's application for correction,
and seven days later the Missoula land Of
flee applied to Washington for further in
sructions The capital authorities an
swered November e3, 1901, directing Mis-
soua to notify the parties that they would
be allowed 80 days to apply for new
hearing to determine the quality Of the
land at the date of final entry, from which
decision Johnson appealed. The matter
then hung fire" until June a, 1902, when
the secretary of the interior, after per-
sonally considering the appeal held that
in view of this showing, an inquiry
should be made as to whether said lots
and were, at the time when applied for
by said Honesycads, within the limits of
an incorporated town, and if so, whether
reserved for homestead entry under the
act Of March 3, 1877, and similar to prior
ruling in the contested case Of Barber VS..
Wilson. The scope of the Missoula office
is accordingly enlarged to embrace this
additional inquiry"
1t appears that May II, 1900. Thomas
NJ Burke filed forest lieu selection, in
tending to embrace land in Section a7,
Township ~ North, Range 26 West, in
conflict with the Big Day placer claim as
located, but this lieu the description re-
ferred to as the southwest quarter of the
southwest quarter, Section 27, Township I6
North, Range IS West. July IS, 1902, in
accordance with the secretary's letter, all
parties were cited to appear before the
local register, and on the day named Har-
man and Riley submitted testimony, but
there being no appearance by or on behalf
OF Burke. On January 27, 1903, dccis-
ion was rendered on the testimony ad-
duccd holding that the burden OF proof
was OH the homestead claimants; that Su-
peror was not an incorporated town that
at least a portion Of the Big Day placer
claim was laid out in blocks lots, streets
and alleys and that plat thereof had been
filed in the Missoua recorders office in
September, 1890; that some of these lots
had been sold by Johnston that Harman
and Riley were we'll aware OF the fact that
the town of Superior, in existence for more
than 20 years, even il not incorporated
embraced part of lots and : conclud
ing with the recommendation that entry
be cancelled on lot 2.
Harman and Riley, however, appealed
from this recommendation February a6
last basing their appeal on the ground oi
error. The records of the local Office show
that the portion of Township II North
Range 26 West, which includes the south
west qaurter of Section 81, was, with Other
parts of the township, surveyed October
"a, 1898, the survey being approved b,
the surveyor general March 20, 1895, tina
Lots and were returned as non-minera
and that the town of Superior is Located
in the southwest quarter of the southeas
quarter of Section a7. In contradiction
of the fergoing, the southwest quarter o.
this section, containing the disputed lots
was classified by the land commissioners
under act of February a6, 1905, as min
eral in character, the same being approved
February II, 1896. The lots lie ON low
land adjacent to the Missoula river, bed
rock being reached at depth of 90 feet
n.thich ;c ~ had of