An illustrated history of the state of Montana, containing biographical mention of its pioneers and prominent citizens, Part 127

Author: Miller, Joaquin, 1837-1913. cn
Publication date: 1894
Publisher: Chicago, The Lewis pub. co.
Number of Pages: 1216

USA > Montana > An illustrated history of the state of Montana, containing biographical mention of its pioneers and prominent citizens > Part 127

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In the case of Russell vs. Chumasero et al., the court, by Wade, C. J., held that what are, or what are not, permanent objects or monu- ments as contemplated by the act of Congress, is properly matter of proof, and cannot be de. termined by the court simply by an inspection of the location notice. (See Liddell, J., in Fla- vin vs. Mattingly, 8 Montana, 242; MeCon- nell, C. J., in Gamer vs. Glenn, & id., 371.)

In Hausworth et al. vs. Butcher et al. (4 Montana, 299) the court, by Wade, C. J., held

nell) Kirby. He is one of a family of seven sons and two daughters, all of whom are living except the youngest. William Kirby, his father, was an active man during life, in both business and political circles, nearly all the time holding an elective office in the county where he resided. He was killed in the prime of life by being thrown from a horse. The Kirbys are descended from the English and the Welsh, and the family are heirs to a vast estate in England. The untimely death of his father left Will- iam F. dependent upon his own resources at the early age of fourteen years.

When the war between the States broke out, the sub- ject of our sketch, having been reared in the South, was fired with the spirit of Southern patriotism, and in June, 1861, at the age of nineteen years, he enlisted in the Sixth Missouri Confederate Volunteer Infantry, under Col. Congrave Jackson, a veteran of the Mexican war. Mr. Kirby served until June, 1864, participating in all the hard-fought battles and privations through which that famous regiment passed.

that before there can be a valid location there must be a discovery; that the right to posses- sion comes only from a valid location, and that if there is no location there can be no posses- sion; that to make the grant effectnal the loca- tion must be distinctly marked on the ground and the record must contain such a description as will identify the claim by reference to some natural object or permanent monument; that a mining claim 2,000 feet in length will not pro- tect claimants against intervening claims of third persons for the 500 feet more than the law allows, and that it is essential that the proper length be marked on the ground as stated in the record, and that the two should correspond. (See MeLeary, J., in Mining Co. vs. Mining Co., 7 Montana, 356; Leggett vs. Stewart, 5 id., 107; Ormund vs. Granite M. M. Co., 11 id., 303.)

In the case of Mckinstry vs. Clark and Cam- eron (+ Montana 370), the court, by Conger, J., held that in a case where defendants claim by virtue of two locations made from a single discovery, when only one could be valid, it was error to instruct the jury that the plaintiff, in an action of ejectment claiming the premises

After the war Mr. Kirby learned the trade of stone mason, which he followed in connection with farming for several years. In 1885 he came west to Montana, and has since been identified with the interests of Living- ston, having taken an active part in building up the town. Many of the most substantial buildings have been constructed by him. ITis handsome brick residence, one of the finest in Livingston, is located on Second street. He contracted for and put in the city water works. While Mr. Kirby has done an extensive and successful business in contracting and building, he seems to be more especial- ly fitted for the position of landlord. He has the largest restaurant patronage in the city, his tables being neat and well filled, and served by lady attendants. He also does a large livery and feed business.

Mr. Kirby affiliates with the Democratic party, but is not active in politics. Ile has served the working men well in the years past as arbitrator in business differences, giving justice and satisfaction to all. He is a member of both the Woodmen of the World and the A. O. U. W.,

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by si tue o a location, should bear the bur- den of proving which one of the two locations was invalid. In Noyes et al. vs. Black et al. (4 Montana, 527), the court, by Wade, C. J., held that by virtue of actual possession alone mining ground could not be held against a valid location.

In the case of Tibbetts vs. Ah Tong, the court, by Wade. J. C., held that the exploration and purchase of the mineral lands are free ouly to citizens or to those who have declared their intention to become citizens; that an alien can neither locate, possess, purchase or acquire title by patent to such mineral lands; that the right of possession cannot be held by one incapable of holding by purchase from the Government, else the government might be deprived of its power to sell forever; and that possession and the right and power to purchase are indispensable. (See Quigley vs. Birdseye, 11 Montana, 439.)

Hopkins et al. vs. Noyes et al. (4 Montana, 550), was a controversy between placer and quartz lode claimants, and the court, by Wade, C. J., held that the possessory title to a placer claim was real estate and must be conveyed by deed, and that a mere verbal transfer from one

having passed all the chairs in the latter organization. In the fall of 1864, soon after leaving the army, Mr. Kirby married Miss Paulina Parks, a daughter of James Parks. They had three children, one son and two dangh- ters: James Francis, Hattie Bell and Alice Gertrude. Hattie Bell died at the age of six years, and the mother of these children died in 1880. In 1882 Mr. Kirby mar- ried Mrs. Mary A. IIoff, daughter of Andrew Kirkland. She was born in Canada and resided there until she was sixteen years of age. Their only son is named Clyde Earl.

HON. CHARLES S. HARTMAN, Congressman from the State of Montana, has entered upon a career that promises to be one of marked success. His recent brilliant speech in Congress more than met the expectations of his most ardent friends and received compliments from the press all over the land. A typical self-made man, he has made rapid strides along the pathway of honorable fame, as will be disclosed in this brief sketch.

Charles S. Hartman was born in Monticello, White county, Indiana, March 1, 1861, son of Sampson and Mary

to another would not holl as against a valid quartz-claim location.

In Wolverton et al. vs. Nicholas et al. (5 Montana, 89), the court, by Wade, C. J., held that actions to determine the right to the pos- session of mining ground must be according to the forms and practice in the jurisdiction where the snit is brought; and that in Montana the plaintiff. if in possession, brings his action to quiet title; if out of possession his action must be in the nature of ejectment.

Abont this time Justice Conger retired from the bench. He had served with courage and distinction in the Union army in the war of the rebellion, and assisted in the capture of John Wilkes Boothe, the assassin of President Lincoln. When appointed to the Montana Supreme Court he was suffering much from wounds received during the war. The labor and confinement consequent upon continued holding of court proved to be more than he could endure, and he therefore retired from the bench and resumed the practice of his profes- sion in Beaverhead county, Montana. He was succeeded as associate justice by John Coburn, of Indiana, in February, 1884.

Caroline (Hichendorn) Hartman, his mother being left a widow about the time of his birth, his father dying at the age of thirty years. His maternal ancestors were pioneers of Pennsylvania, while his father's people had long been residents of Indiana.

Mr. Hartman was educated in the Monticello high school and at Wabash College, Crawfordsville, Indi- ana, after which he entered upon the study of law in the office of Owens & Uhl in his native town. Before com- pleting his legal studies there, his hopeful ambition led him to seek a new field of action in the far West, and in January, 1882, he landed in Bozeman. Here he applied himself diligently to a thorough preparation for his chosen profession, and in August, 1884, was admitted to the bar. From the very first his career has been attend- ed by success. The same year he was admitted to the bar he was elected Probate Judge of Gallatin county, in 1889 was elected a member of the constitutional conven- tion, and in 1892 he was honored by a seat in Congress. Few members of the present Congress represent as large

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HISTORY OF MONTANA.

Change of judges did not change the char- acter of litigation. The case of Mantle et al. vs. Noyes (5 Montana, 274), was an important case, and, as most of the mining cases did, re- quired the determination of new and untried questions. It was a contest between the own- ers of a patent to placer mining ground and the claimants of a quartz-lode mining claim within the same boundaries. The court, by Wade, C. J., held that a patent to a placer claim issued under the provisions of the act of Congress of May, 1872, passes no title to a previously located quartz vein or lode claim included within its boundaries, and whether or not the placer applicant knew of the existence of such lode or quartz claim was immaterial, and this upon the theory that the valid location of a quartz-lode mining claim carries with it a grant from the Government to the locator for the ground located; that gronnd thus held and claimed cannot be relocated or taken by any other person, for that the Government cannot sell the same ground to different persons, and that a quartz-lode mining claim thus located, held and owned, is " known " to exist within

a district as he, and few have attained in such a brief time so marked a degree of popularity. He is a thorough and energetic worker in whatever he undertakes, and, judging the future by the past, he is destined to accom- plish greater things and occupy a still higher position in life. While he is an emphatic Republican in his political views, his frank and genial manner and his many estim- able traits of character have made warm friends for him among both the Republican and Democratic ranks. In- deed, many of his Democratic opponents supported him for Representative in Congress. Associated with him in his immense law practice is his brother, W. S. Hartman. They have the largest business of any firm in the Galla- tin valley.

December 2, 1884, he married Miss Flora B. Imes, daughter of William Imes, Sr., of Monticello, Iudiana. They have two children, Louise and Flora.

M. KAISER, proprietor of the Kaiser House, the leading hotel of Phillipsburg, is one of the prominent and influ- ential citizens of the town. IIe is also an early pioneer of Montana, and as such we take pleasure in presenting the following sketch of his life in this work.

the meaning of said act, by reason of the record thereof, and the marking on the ground so that the boundaries might be readily traced: and whether the placer claimant, when he makes his application for a patent, which takes in and in- elndes within its boundaries the quartz. lode location, had personal knowledge of the quartz location or record thereof, is immaterial.

The decision and judgment in this case was affirmed on appeal to the Supreme Court of the United States. (127 U. S., 349.)

In the case of McBurney vs. Berry (5 Mont- tana, 300), the court, by Coburn, J., held that the Territorial statute which requires that the declaratory statement or notice of location of a quartz lode elaim in manner prescribed by the laws of the United States must be in writing and on oath, is valid, and that a notice of loca- cation which does not conform to the require- ments of the statute is void, and its admission in evidence error. (See McConnell, C. J., in O'Donnell vs. Glenn, 8 Montana, 248.)

The case of the Silver Bow M. & M. Co. vs. Clarke et al. (5 Montana, 378), involved a large amount of property, and in consideration of

Mr. Kaiser was born in Switzerland, November 21, 1828; was edneated in his native land and there learned the trade of shoemaker. In 1846, when merging into manhood, he sailed for America to make his future home in this land of the free. He landed in New York. The first few years of his life in America he spent success- ively in Albany, Cleveland, St. Louis, New Orleans, and in Jackson, Mississippi, working at his trade in all those places. In 1852 he went to California, via the Nicaragua route, and from there went to Nevada, where he was en- gaged in the butchering business. He also mined, suc- cessfully, for a time. In 1858 he was among the number who made a rush for the gold regions of the Fraser river. On that expedition, however, he made no more than his expenses. In 1865 we again find him in Nevada, where he continued the butcher business until the spring of 1866. While there he made some money, but unfortu- nately invested it in town property, which depreciated in value, aud thus he lost it all.

It was in 1866 that Mr. Kaiser came to Moutana. IIis first stop here was at Virginia City. From there he went to Helena and opened up a restaurant and hotel business,

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HISTORY OF MONTANA.

other like cases was of vast importance. It was a contest between the claimants of a quartz-lode location and parties who claimed the same ground under the Bntte townsite patent. The court, by Wade, C. J., hield that the valid loca- tion of a quartz-lode mining claim gives to the locator the right to the exclusive possession of the surface of the ground located; that such a location is not affected by a subsequent entry of a townsite, although the mining location is situated within the boundaries of the townsite, and consequently that the owners of such min- ing claim are under no duty or obligation to file an adverse claim to the entry of the town- site; that the land department of the United States is only anthorized to issue patents to the probate judge or other officer in trust for town- site purposes for lands which have not been previously granted and sold or reserved from sale; that there cannot be included in snch patent any mine, mining claim or possession, and if there is the patent to that extent is void; that a patent to a mining claim relates back to the location and is the consummation of the pur-

where the Herald office is now located. He built a hotel there. In the fall of 1867 he went to Cable and built another house, and continued in the hotel business at that place until 1870, since which time he has been identified with Phillipsburg. He built the Kaiser IIouse here iu 1880. This is a brick building, 30 x 150 feet, located on the corner of Montgomery and Broadway, and is fitted and furnished in first-class style. Mr. Kaiser has also erected a number of other buildings in the city and is the owner of a large amount of real estate, and, like most of the prosperous citizens in Moutana, he is interested iu mining operations. In 1886 he established the Phillips- burg Water Company, of which he was made president. In 1892 he organized the J. M. Kaiser Water Company. Both these enterprises are now owned and controlled by him and his two sons, Herman and John, Herman now being president of the former, and John superintendent of the latter. They bring the pure mountain water from Stuart Gulch, a distance of five miles, and furnish an am- ple supply for the whole city. Among other interests, Mr. Kaiser has two ranches, amounting to 280 acres, where he raises grain and vegetables and keeps some horses and cattle. Politically he is a Republicau.

chase then made; and that no nnauthorized act of the land office in issuing the townsite patent could defeat such title.

This was the case of the Pawnbroker lode mining claim located on the 16th day of No- vember, 1875, and for which a patent was is- sued on the 15th day of January, 1880, con- taining this clause: "Excepting and excluding from said patent all townsite property rights upon the surface, and all houses, buildings, lote, blocks, streets, alleys or other municipal im- provements on the surface of said Pawnbroker Mining Claim"; and the claimants of such streets, lots and alleys under the Butte town- site patent, issued on the 26th day of Septemn- ber, 1877, which contains this provision: " No title shall be hereby acquired to any mine of gold, silver, cinnabar or copper, or to any valid mining claim or possession held under existing laws of Congress."

Upton vs. Larkin (5 Montana, 600), was a case presenting another new question, which was whether the location of a quartz-lode min- ing claim before a discovery had been made was

He was married in St. Louis, Missouri, in 1850, to Miss Louisa Wagner, a native of Prussia, who landed in Amer- ica the same year he did. She has been in the true seuse of the word a faithful helpmate. She has accompanied him iu all his travels, with the exception of his trip to Fraser river, and by her aid and encouragement has helped to bring about their present prosperity. They have had six children, of whom only two, John and Her- man, are now living. Two of their children died of diph- theria while they were at Marysville, California, and the other two died in infancy.

H. BINDEWALD, agent for the Northern Pacific Express Company, Bozeman, Montana, was born in Prussia in 1851, son of Frederick Bindewald, a prominent manufact- urer of boots and shoes.

Mr. Bindewald received excellent educational advan- tages in his native land, studying French, English, chem- istry, drawing, bookkeeping, etc., fully preparing him- self to fill any position, his education costing him the small sum of $2 a year; and with a view of coming to America he gave special attention to the English lan- guage. It was in 1869 that he crossed the ocean and landed in New York city. There he was at once em-

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enred by a subsequent discovery. The court answered the question by Wade, C. J., and held that a location to be effectual must be good at the time it is made (see Belk vs. Meagher, be- fore mentioned), and that a location void at the time it is made, because of no discovery, or be- canse the discovery was made on a claim al. ready located and patented, continnes and re- mains void and is not cured or made effectual by a subsequent discovery on the claim located. (See Bach, J., in Upton vs. Larkin, 7 Mon- tana, 449.)

In Alder Gulch Con. Mining Co. vs. IIayes (6 Montana, 31), the court held, in re- lation to placer mining, by Galbraith, J., that in a mining gulch, when water appropriated by a ditch for the purpose of being used upon a mining claim has served its purpose upon such claim, it must be discharged therefrom for use by the owners for claims below. The min- ing claimant below is entitled to the water of the stream flowing down the gulch, subject to the prior appropriation of the water by the owner of claims above him for use upon such

ployed by a firm engaged in the manufacture of surgical instruments, having served an apprenticeship to that trade in his native country He continued thus employed in New York until 1873, when he came west as far as Dakota, and that year enlisted in the regular army, as a private in the Seventh United States Cavalry, General Custer's famous regiment. He served through his term of enlistment, a period of five years, and was honorably discharged, being First Sergeant at the time of his dis- charge. He then spent six years as master mechanic in the Government gun shops at Fort Abraham Lincoln, North Dakota.

In the fall of 1881 Mr. Bindewald entered the employ of the Northern Pacific Express Company as messenger; was agent for the company at Jamestown, North Dakota, for a year and a half; and since May, 1890, has served as the company's agent at Bozeman, Montana.

Mr. Bindewald was married in 1883 to Miss Elizabeth A. Stack, daughter of William Stack, of Binghamton, New York. Mrs. Bindewald is a Catholic, while Mr. Bindewald is a member of the Lutheran Church. He is also a member of the Masonic fraternity, Jamestown Lodge, No. 6, A. F. & A. M., Jamestown, North Dakota.

claims, and subject only to the reasonable dimi- nution and deterioration by such nse.

In Saunders et al. vs. Mackey (5 Montana, 523), the court, by Wade, C. J., held that a ten- ant in common of a mining claim, who enters into an agreement with his co-tenant whereby the latter promises to do the annual work nec- essary to hold the claim, forfeits bis interest in the claim if such representation work be not done. The claim thereupon becomes open to re- location and a valid location thereof may be made by the tenant who made default. In such case the remedy of the other co-tenant is by an action for breach of contract, or to establish and enforce a trust in the claim located.

In the case of Garfield M. & M. Co. vs. Ham- mer (6 Montana, 53), the court, by Galbraith, J., held that in the absence of evidence to the contrary, the locators of a mining claim will be presumed to be citizens of the United States, or to have declared their intention to become citi- zens.

Talbott et al. vs. King et al. (6 Montana, 76), was a conflict between the owners of a

Politically, he is a Republican. A man of excellent busi- ness qualifications, courteous and obliging to all with whom he has any dealings, he is universally popular.

JOHN B. HERFORD, a resident of Billings, Montana, and Prosecuting Attorney for Yellowstone county, is a native of Sheffield, England. Ile was born in 1857, son of Rev. Brooke and Hannah (Hankinson) Herford, his father being now a noted Unitarian minister in Boston, Massa- chusetts. The Herford family came to the United States in 1875. The subject of our sketch had received a classi - cal education before leaving England, and although still a boy in his 'teens was qualified to engage in any line of business he might choose.

Locating in New Mexico, and believing that the stock industry offered larger and quicker returns than could be assured in mining ventures, he accordingly turned his attention to the stock business, in which he has been in- terested ever since 1876, and which he has followed with success, the most of his time acting as manager for large cattle companies. In the meantime he studied law and was admitted to the bar in Billings, Montana, in May, 1891. He soon gained a large acquaintance here and so popular did he become that iu 1892, when he ran on the

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quartz-lode mining-claim location and a large number of lot owners, claiming under the Butte Townsite patent, and in addition to the questions determined in the case of Silver Bow M. & M. Co. vs. Clark, above mentioned, the court, by Wade, C. J., held that a patent to the mining claim is conclusive proof of a discovery and location according to law, and that a town- site patent cannot operate to cut off the right of a prior locator of a mining claim, the patent to which relates back to the date of location.

In the case of Remington vs. Bandet (6 Mon- tana, 138), the court, by Wade, C. J., held that the annual representation work to be performed in order to protect a mining claim must be done either within the boundaries of the claim, or, if off' of it, as a necessary means of extracting the ore therefrom, and that the erection of a board- ing house without the boundaries of the claim for the convenience of the miners, cannot be considered as a part of such representation work. (See Coleman vs. Curtis, 12 Montana, 301.)

In the autumn of 1885, Charles R. Pollard, of Indiana, was appointed associate justice to

Democratic ticket for County Attorney, he was elected, notwithstanding the fact that the Democratic party was in the minority in Yellowstone county. He is a man of general information and broad and progressive views, has won many friends regardless of party lines, and thus far has made an excellent record as Prosecuting At- torney.

Mr. Herford was married in 1886 to Miss Susan Whit- ney, daughter of Lucius Whitney, who was for several years Treasurer of Yellowstone county and who is now filling a position in the State Treasurer's office at Helena. Mr. and Mrs. Herford have two children: Helen B. and Whitney B. Mrs. Herford is a member of the Congrega- tional Church.

DR. CHESTER B. LEBCHER, managing physician of the Keely Institute at the Boulder Hot Springs, was born in Pennsylvania, February 22, 1850. His ancestors on the paternal side came from Sweden in an early day, and on the maternal side they were of German origin. His par- ents, David and Lucinda (Snyder) Lebcher, were re- spected citizens of Akron, Ohio, and devout members of the Methodist Church.

succeed Justice Coburn, who returned to In- dianapolis and resumed the practice of his pro- fession. Coburn held high command in the Union army during the Civil war, and for a long time has been one of the leading lawyers of his State. He was learned and able as a judge and added strength to the Supreme Court while he remained in Montana.

Pollard failed to be confirmed by the Senate, and on August 6, 1886, James H. McLeary, of Texas, was appointed associate justice; and on the same day, under an act of Congress giving an additional judge to Montana, Thomas C. Bach, of Butte City, Montana, was appointed associate justice.

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An illustrated history of the state of Montana, containing biographical mention of its pioneers and prominent citizens, Part 127

Author: Miller, Joaquin, 1837-1913. cn Publication date: 1894 Publisher: Chicago, The Lewis pub. co. Number of Pages: 1216

Author: Miller, Joaquin, 1837-1913. cn
Publication date: 1894
Publisher: Chicago, The Lewis pub. co.
Number of Pages: 1216