An illustrated history of the state of Montana, containing biographical mention of its pioneers and prominent citizens, Part 128

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 128

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Litigation concerning mining claims still went on. The hard-fought cases known as the Smokehouse lode cases-there being thirty- three of them decided in one opinion (6 Mon- tana, 397)-were contentions between lot claim- ants under the Butte townsite patent and claimants under the Smokehouse lode mining claim location, and involved property in the city of Butte of very great value. The court, by Wade, C. J., after reviewing and re-affirming

Chester B., the third of four children, three now living, received his early education in the Akron public schools and at Mount Union College. His medical education was obtained at the Michigan State University at Ann Arbor, and at Jefferson, Pennsylvania, where he gradu- ated in the class of 1874. He began the practice of his profession in Indiana; a short time afterward began work in the hospitals of Philadelphia, and from that city went to Baltimore, where he served as physician of the Balti- more Inebriate Asylum. He afterward came West in the employ of the United States Government, as physician to the Crow Indiaus, arriving at their agency on the last day of 1875, and remained there fifteen months. Mr. Lebcher has the honor of being one of the founders of Miles City, and practiced his profession there until March, 1893, when he accepted his present position at the Boulder Hot Springs. The Keely Institute is devoted to the cure of liquor and all narcotic habits. The Doctor bas made a special study of all these diseases, and, with the honest co-operation of the patient, there is no question as lo the result. This is one of the grandest blessings that could be conceived for the unfortunates who are slaves to these

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HISTORY OF MONTANA.

the doctrines laid down in Silver Bow M. & M. Co. vs. Clark, and Talbott vs. King et al., before mentioned, held further that lot claimants, claiming under a townsite patent which extends over a mining claim, are not relieved, by reason of their title under the townsite patent, from setting up their adverse claims on notice of ap- plication for a patent to the mining claim, and their failure to assert their claims before such patent is issued and before the sixty-day period of publication has expired, forever bars them from so doing, while the owner of a valid min- ing-claim location, over which a townsite is ex- tended by United States patent, is not required to file an adverse claim to the procuring of such townsite patent, as by the law the mining claim is expressly excepted; that the land officers have no right to insert in a patent any exceptions or reservations diminishing or controlling the rights acquired by the valid location of a mining claim; that there is no law anthorizing the United States Land Office to exclude from a mining-claim patent the right to surface ground, and a reservation in such a patent excluding

babits. The institute is located at the Hot Springs, ad- jacent to the commodious hotel.

Dr. Lebcher was married, September 15, 1888, to Miss Mattie Wooster, a native of Indiana, and they reside in a pleasant cottage at the Springs. The Doctor sympa- il izes with the Democratic party, is a member of the Montana Medical Association, and of the Masonic tra- ternity.

WILLIAM BOWE, a Montana pioneer of 1864, and one of the founders of the town of Melrose, was born in Ire- land, March 17, 1844, fourth in the family of five chil- dren of Lawrence and Margaret (Delany) Bowe, both natives of the Emerald Isle. ITis parents emigrated to America in 1848 and settled in Connecticut. In 1859 they removed to New Britain, that State, where the father died in his eightieth year, and where the mother still lives, she having reached the advanced age of eighty.

William Bowe spent several years of his early life at Cromwell, on the Connecticut river. When he was only fourteen he was employed to run an engine in a manu- facturing establishment, and after the family moved to New Britain he worked on a farm for some time. In 1863 he went to Denver, Colorado, spent the winter there, and

therefrom the right to all lots, blocks, streets, alleys, honses and municipal improvements on the surface of the claim, is void, and that the issuance of a patent to a quartz-lode min- ing claim is conclusive, in an action at law, as to the title to the land within its limits.

In King vs. Thomas et al. (6 Montana, 409) and two other cases decided in the same opinion, the court, by MeLeary, J., after re-affirming the decision in the Smokehouse cases, held further that the statute of limitations cannot run against a mining claim until the patent thereto has been issued, any State or Territorial legislation to the contrary notwithstanding.

In the ease of Weibbold vs. Davis (7 Mon- tana, 107), Bach, J., rendered an opinion follow- ing King vs. Thomas, npon the theory that the facts were identical. On appeal to the Supreme Court of the United States the court, by Jus- tice Field, approved of the decisions of the Su- preme Court of Montana in the cases of Silver Bow M. & M. Co., vs. Clark, Talbott vs. King and the Smokehouse cases above mentioned, but held, as applicable to the Weibbold-Davis

in the spring came to Montana, arriving at Virginia City, July 8, 1864, with a capital of $100. The history of his life for the next few years was that of a miner going from camp to camp, sometimes owning an interest in a mine himself and at other times working by the day until he had visited nearly all the mining districts in this section of the Northwest, and on the whole his mining career was an unsuccessful one. Ile then turned his at- tention to freighting, which he continued until the fall of 1873, when he came to his present location at Melrose. In the spring of 1875 he bought out two squatters, giv- ing one of them $100 and the other $150. At that time there were only two other settlers in the valley -- John Stone and Jefferson MeCauley. When the land was sur- veyed Mr. Bowe pre-empted 160 acres of land, to which he subsequently added eighty acres of desert land. In the fall of 1875 he built a smali log house which served for a home until he could get a better one. Finally he purchased a house at Ricker, took it to pieces and moved it to his place, and this house now forms a part of the hotel building. ITe has kept hotel here since 1876, it being the stage station until the railroad was built. With the coming of the railroad he platted the town of

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case that a townsite patent of an earlier date covering the same premises embraced in a junior mining patent carries the title in absence of proof establishing the known existence of the mine at the date of such townsite patent; that the claimant under the townsite patent may offer evidence to prove that the premises were not known to be valuable for mineral at the date thereof, to rebut the presumption contra, indulged without proof, solely for the issuance of the mineral patent.

In the case of Wulf vs. Manuel (9 Montana, 279), defendant, at the time of his purchase of a mining claim and at the time of his applica- tion to the United States for a patent, was an alien, but was made a citizen on the day of the trial. It was held by the court, DeWitt, J., delivering the opinion, that under the law only citizens of the United States, and those who have declared their intention to become such, can apply to purchase the mineral lands of the Government, and that as such lands are not open to exploration, occupation or purchase by aliens, the defendant's acts of naturalization

could not retroact to his purchase or possessory right to a mining claim upon the public lands. This case was reversed on appeal to the Supreme Court of the United States. (See 153 United States.)

In Murray vs. City of Butte (7 Montana, 61), the court, by Bach, J., reaffirined the prin- ciples laid down in the Smoke-house cases.

In Hartman vs. Smith (7 Montana, 19), the court, by Galbraith, J., decided that the loca- tion of a mill-site, like that of a quartz-lode mining claim, operates as a grant by the Gov- ernment of all the surface ground included within its limits.

In Wenner vs. McNulty et al. (7 Montana, 30), the court, by McConnell, C. J., treats of the sufficiency of the affidavit to the declaratory statement; whether in the location of a mining claim the Territorial Legislature can lawfully impose burdens in addition to those prescribed by the laws of the United States; aud of what constitutes a discovery.

In Hope Mining Co. vs. Brown (7 Montana, 550), the court, by Liddell, J., defined the right

Melrose and at once sold off a number of lots. Much of the town, however, he still owns. In 1880 he made further additions to his hotel, which has since enabled him to entertain comfortably all who stop here.

December 25, 1876, Mr. Bowe married Mrs. Lucia Fleser, widow of Adam Fleser and daughter of Elihu Phillips. She was born in Strongsville, Ohio, February 16, 1837. By her first husband she had children as fol- lows: George E., Melrose; Charles A., Melrose; Calista I., wife of James Mackboy, Phillipsburg; and Rose A., wife of Sherman W. Vance. Mr. Vance and his family reside with Mr. Bowe. Mrs. Bowe crossed the plains with her first husband in 1864, and on that journey met with many thrilling experiences and narrow escapes, a detailed account of which would fill a volume of no small proportion and would be more thrilling than many a romance. The company with which they traveled was composed of twenty men, four women and five children, all well armed. At the South Platte river they were de- layed on account of storms and high water. One man was drowned and one man and a child were killed by lightning. Further on in the journey they had trouble with the Indians, and it was with difficulty that they

escaped with their lives. Mrs Bowe is the daughter of a physician, and by her knowledge of curative powers made herself very useful in taking care of the sick and wounded on this journey, as she also has during her long residence in Montana. After their arrival in Virginia City, Mr. Fleser engaged in mining, and later moved to German Gulch, where he kept a station. On account of his dissipated habits she left him and ob- tained a divorce, after which, as above stated, she be- came the wife of Mr. Bowe. During their long resi- dence at Melrose, Mr. and Mrs. Bowe have made a wide acquaintance throughout the State, being noted far and near for their genial hospitality.

EDDA LEE LOWREY, County Superintendent of Schools of Jefferson county, is a native daughter of Montana, born in Meagher county, near Townsend, May 16, 1867, a daugh- ter of B. F. Lowrey, a Montana pioneer of 1864, and now a miner and stock-raiser in St. Louis. He was boru in Mis- souri, in 1833, and in 1859 married Miss Jennie Thestle, a native of Maryland. One son, Charles N., was born in that State. In 1864 Mr. Lowry left his family and braved the dau- gers of crossing the plains to search for gold in Montana, in which he met with fair success, and accordingly sent for

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of a tunnel claimant to vein or lodes discovered in his tunnel. (See same, 11 Montana, 370.)

In Mattingly et al. vs. Lewissohn et al. (8 Montana, 259), the court, by De Wolfe, J., held that the rights of an adverse claimant are for- feited if he fails within the prescribed time either to file his adverse claim in the Land Office where the application for a patent is pending, or to bring a suit in the proper court to decide the same. (See as to action upon ad- verse claims, Hoffman vs. Beecher, 12 Mon- tana, 489.)

In Flick vs. Gold Hill & L. M. Co. (8 Mon- tana, 298), the court, by De Wolfe, J., held that an instruction to the jury, which declared that the recorded notice of location of a quartz-lode mining claim prima facie established the facts and matters therein stated, and required a pre- ponderance of evidence to overthrow them, was erroneous as shifting, improperly, the burden of proof.

The foregoing are the principal cases that found their way to the Supreme Court during the Territorial period, arising under the rules and regulations of the miners in the mining

his family. The mother and her little son made the long journey up the Missouri river, and they located on a farm in Meagher county. While there they had four children, of whom onr subject is the only survivor. Her parents and the eldest brother are still living.

Edda L. Lowrey was raised in Jefferson county, Montana, where she attended the public schools, also the St. Vin- cent's Academy at IIelena. When only seventeen years of age she began her life-work as a teacher in St. Louis, where she met with so good success that she taught for five terms in succession. She followed that occupation until 1890, and in that year was appointed County Super- intendent of Schools, to fill a vacancy, serving in that capacity eighteen months. She was then elected to the office, on the Democratic ticket, and received the flatter- ing majority of 600 votes, running far ahead of her ticket. She entered on the duties of the office in a sensible and practical way, is enthusiastic in her work, and is putting forth her best endeavors for the advancement of the thirty schools of her county. In addition to the stated visits to the schools of the county, Miss Lowrey also attends the teachers' conventions, and takes a deep interest in all that

districts and under the acts of Congress. They have been mentioned because they are of public importance in showing the foundation and the growth of the system of mining law in Mon- tana. After the admission of the Territory as a State, the litigation concerning mines and mining clainis was mostly transferred to the United States courts and thereby the State dis- trict courts and the Supreme Court were re- lieved of inch labor.

There are other branches of the law of public interest and importance whose foundations were laid during the Territorial period, and one of them is the law growing ont of the land grant to the Northern Pacific Railroad Company, and other questions arising under the charter of that company. Since the admission of the Ter- ritory as a State this class of litigation has also been transferred to the United States courts.

The Territory of Montana and the North- ern Pacific Railroad Company came into exist- ence at about the same period (1864), but it was not until the year 1883 that the company's railroad reached and was completed through Montana.

pertains to the educational afiairs of the county. She is a member of the Baptist Church, of the Young People's Christian Endeavor and of the Eastern Star. She has made a number of good investments, and is adding her mite to the building up and improvement of Boulder. Onr subject is widely known in her own and other counties of her State, and has hosts of trne friends.

WILLIAM O. MALLAHAN, foreman in the Northern Pa- ific Railroad shops at Livingston, Montana, and City Alderman from the Third ward, dates his birth in Han cock county, Ohio, near Findlay, December 10, 1846.

Ile is a son of Rolly and Drucilla (Reese) Mallahan, the former being a descendant of Irish ancestors, and the latter of German, both families having settled in America at an early day. Grandfather Mallahan was a soldier in the war of 1812. Rolly Mallahan removed with his fam- ily to Iowa in 1854. He was a schoolteacher, and also did various kinds of contract work. While inspect- ing a well it caved in upon him, killing him instantly. This occurred near Cedar Rapids, Iowa, in 1870.

When the Civil war came on William O. Mallahan was only a boy in his 'teens and was attending the public

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HISTORY OF MONTANA.

The land grant to this company in Montana was equivalent to a tract of land forty miles wide by eight hundred miles long, being every alternate section of the public lands, not min- eral, designated by odd numbers, to the extent of forty miles on either side of said company's road.

When did this land grant take effect? Was it at the date of the passage of the act of Con- gress incorporating the company, or when the line of the road had been definitely located? or when the road had been completed? Did the exemption of mineral lands from the operation of the grant apply to lands known to be min- eral at the date of the act incoporating the company or that were known to be mineral at the date of the definite location of the road, or did the exemption apply to all mineral lands whenever discovered or found to be mineral? What belonged to the right of way, so as to exempt it from taxation under the charter of the company ?

It was not long after the arrival of the road in the Territory before the courts were called upon to consider these and other questions.

schools of his native State, but, boy as he was, his patriotic spirit asserted itself, and in 1862, at the age of sixteen years, he enlisted in Company A, Eighteenth Iowa Volun- teer Infantry, at Cedar Rapids. His service was in the Seventh Army Corps, in Missouri, and among the numer- ous engagements in which he participated were those of Newtonia, in December, 1862, and the battle near Spring- field, in January of the following year. Ile was honor- ably discharged at Davenport, Iowa, at the close of the war.

Soon after the war Mr. Mallahan went to Salt Lake City and was employed in staging across the plains by the Ben. Holliday Stage Company until 1869, when the completion of the Union Pacific Railroad dispensed with stage travel. He then secured a position as fireman on a locomotive on the Union Pacific, and later served his time with that company as a machinist, remaining in their employ until 1871. That year he returned to Iowa, and until 1887 was in the employ of the Burlington, Cedar Rapids & Northern Railroad Company. In the fall of 1887 he accepted a position with the Northern Pacific Railroad Company at Brainerd, Minnesota, and the following year was trans-

In the case of the Northern Pacific Railroad Company vs. Majors (5 Montana, 111). the court, by Galbraith, J., after reviewing the de- cisions of the Supreme Court concerning land grants to other railroads, and the decisions of other courts, held that the title of the plaintiff to the lands included within its grant took ef- fect at the date of the approval of the act of Congress incorporating the company; that the location of the route and the survey of the lands gave precision to that title and caused it to attach to the particular section, as of the date of the approval of the act. as fully as if such particular section had been designated in the act; that the character of the title is that of a grant upon condition subsequent; and that the office of the patent is to confirm the title, as certain designated portions of the road are com- pleted and reported upon by the commission- ers, and render it absolute and unconditional; that this grant, being an act of Congress, is the highest evidence of title, importing, in the case presented, possession and livery of seizin, and is sufficient, in connection with the other allegations of the complaint, to sustain the ejectment.

ferred to the company's shops at Livingston, Montana, where he has since been general foreman, filling the position to the entire satisfaction of his employers. During his whole railroad career, extending from 1869 up to the present time, September, 1893, he has never missed but two months' work, a record equaled by few railroad men.

Mr. Mallahan was married in 1872, in Cedar Rapids, Iowa, to Miss Artemissa Loyd, daughter of George W. and Lucinda (Skinner) Loyd. Her father was a resident of Missouri at the beginning of the war, and soon after the opening of hostilities removed with his family to Iowa, from which State he entered the Federal army and served in the Union ranks until the war closed. Mr. and Mrs Mallahan have two sons and one daughter. Their daughter, Mary, is the wife of Robert L. McManus, of Livingston. The sons are Rob Roy and William. The former is now learning the trade of machinist in the rail- road shops. Mrs. Mallahan is a member of the Baptist Church.

Politically, Mr. Mallahan affiliates with the Democratic party, and on the Democratic ticket he was elected Alder- man in the spring of 1892.

John Beam

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HISTORY OF MONTANA.

In the case of the Northern Pacific Railroad Company vs. Carland, treasurer (5 Montana, 146), the court, by Wade, C. J., held that the Territorial district courts, sitting to hear and determine canses arising under the constitu- tion and laws of the United States have the same jurisdiction as the circuit and district courts of the United States; that a suit com- menced by or against a corporation chartered by Congress is properly brought in the United States side of the Territorial district court; that the plaintiff's right of way is an easement, and that personal property attached to the soil and annexed to the easement, like a fixture, becomes a part of the land and is therefore exempt from taxation; that the act of Congress incorporating plaintiff's is a contract between the Government and the incorporators, and that a Territorial legislature has no authority to impair the ob- ligations of this contract; that it is within the Constitutional power of Congress to exempt the property which it grants from taxation; that it was competent for Congress to charter the Northern Pacific Railroad Company; to grant

JOHN BEAN, Clerk of the District Court, Helena, came to Montana in 1883, and has since been identified with its interests. Ile was born in York, England, June 1, 1860, in which city he was reared and educated, first attending the common schools and afterward the Lord Mayor's Col- lege, of which institution he is a graduate. At the age of thirteen he began the study of stenography, studying under the best teachers and becoming proficient therein. Ile also learned telegraphy, and as an operator was for four years in the employ of the Northeastern Railway Company, of England. At the age of nineteen he came to America, and is to-day the only member of his family outside of Great Britain. He is one of six children and the remaining brother and sisters reside at the old home- stead in York, where the father, who was a successful merchant for many years, is now retired from active busi- ness, being a learned scholar and an accomplished lin- guist, and having amassed a fortune. Mr. Bean's mother is also living. She is a sister of James Carter, of Carter, Redfern & Company, the noted Liverpool merchants and importers.

When he reached America Mr. Bean at once entered the employ of D. W. King & Company, wholesale glue

to it public lands and to exempt its right of way through such lands from taxation; that county assessors, in order to have jurisdiction to assess property, must follow the law; that an assessment that values real and personal property in a mass is void; that a tax will not be restrained upon the ground that it is irreg- ular and erroneous; that to entitle a party to relief against an illegal tax he must bring him- self under some acknowledged head of equity jurisdiction; that courts of equity will enjoin the casting of a cloud upon a title in a case wherein a cloud itself, when cast, would be re- moved; and that any encroachment upon the quiet enjoyment of an easement, whether created by grant or prescription, will be prevented by injunction.

In the case of Wilkinson vs. Northern Pacific Railroad Company (5 Montana, 535), the court, by Coburn, J., held that the exception of min- eral lands in the grant of land to the company did not apply to. the grant of the right of way, and that if at the time the right of way attaches such mineral lands are unoccupied, a

manufacturers, at Boston, Massachusetts, with which firm he remained three years. Growing weary of mercantile pursuits he began reporting the lectures delivered at Tremont Temple, Boston, for publication in book form. Leaving the East he came as far west as Chicago and was with George M. Pullman, at Michigan avenue and Adams street, for six months, at the expiration of which time he came to Helena. Here he became private see- retary of General Agent Stokes, of the Northern Pacific Railway. At the end of a few months he received the appointment of Court Reporter for the First Judicial District of Montana, under Chief Justice Wade, and when the latter retired from office Mr. Bean resigned his posi- tion and went into the law office of Carter & Clayberg and continued the study of law which he had hitherto begun. Ile was admitted to the bar from their office and at once entered upon the practice of his profession. Sub- sequently he formed a law partnership with C. B. Nolan, which lasted until 1889, when Mr. Bean was elected Clerk of the District Court of the First Judicial District, being elected by a handsome majority. The term of office was for three years. In 1892 he was again nom- inated for the same office and was re-elected for a term

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subsequent location thereof followed by a patent to the locators, is inferior to the right of way, and must yield to the superior legal title, withont a resort to a court of equity to set the patent aside.

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An illustrated history of the state of Montana, containing biographical mention of its pioneers and prominent citizens, Part 128

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