An illustrated history of the state of Montana, containing biographical mention of its pioneers and prominent citizens, Part 129

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 129

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In the case of the Northern Pacific Railroad Company vs. Lilly (6 Montana, 65), the court, by Wade, C. J., among other things, held, under the act of Congress granting lands to the company, that whenever the general route of the road had been fixed, the lands granted were reserved from sale and held for the company, whether before or after the same had been surveyed.

In the case of Northern Pacific Railroad Company vs. Shimmell (6 Montana, 161), the court, by Wade, C. J., held that the plaintiff had the right to operate its road through the Territory of Montana; that the road is a mili- tary and post road for the benefit of the Gov- ernment, and made so by its charter, and what- ever is necessary or useful in operating the road belongs to and goes with the franchise, and hence that if an office safe at a depot, in which the agent keeps his daily recei pts, and deposits

of four years, by a still greater majority. His present term will expire in January, 1897. He is a member of the Masonic fraternity, the A. O. U. W., K. of P., Sons of St. George and the Montana Bar Association.

Mr. Bean was married in Boston, in 1880, to Miss Ida F. Parsons. They have had six children, four of whom -- three sons and one daughter are living.

In addition to his official duties Mr. Bean is interested in real estate and mining. He is a prominent Repub- lican and is as popular with his associates here as he was in Boston, where his fellow employés tendered him a banquet on the eve of his departure to visit his old home in England.

JUDGE ALEXANDER FRASER. Few men of Montana have had a more varied and eventful life than has Judge Fraser, and few, if any, save a sturdy Scotchman, could have survived some of the experiences through which he has passed.

Ile was born in northern Scotland in 1842, son of James Fraser, a noted civil engineer and railroad contractor. Yonng Fraser received a liberal education in his native land, and at the age of twenty-three engaged with a com-

his valuable papers, is necessary or useful in operating the road, it could no more be seized on execution than could a section of the rails or road-bed, or a water tank. These things are incident to the franchise and cannot be dis- turbed. They are the means by which the franchise is exercised and are necessary to its use.

As to selection of lands by the Northern Pacific Railroad Company in lien of lands lost, the court, in Elling vs. Thexton (7 Montana, 330), by MeCounell, C. J., held that under the acts of Congress the Northern Pacific Railroad Company does not acquire title to land selected in lien of lands lost until such selections have been approved by the Secretary of the Interior.

In Northern Pacific Railroad Company vs. Patterson, Treasurer (10 Montana, 90), the court, by Blake, C. J., held that in action by the plaintiff to restrain by injunction the col- lection of a tax complained of as erroneous, a complaint that does not aver that the plaintiff sought the redress provided for in the statutes of the State or tendered the amount admitted to be due, is bad, on demurrer.

pany of English contractors who were going to South America to construct a railroad. Upon their arrival in South America they found the country harassed by in- ternal revolution, in consequence of which the contract- ors were diverted from their plans and returned to Eng. land. Mr Fraser, however, desiring to see and learn more of the country and its resources, accepted the posi- tion as bookkeeper for a large sheep-raiser, some distance from Montevideo, with whom he remained three years and a half. At the end of that time he returned to Scot- land for "the girl he left behind." That same year, ac-

companied by his wife and father, he again crossed the Atlantic, this time landing at Nova Scotia. There he was engaged in constructing a railroad between Nova Scotia and Quebec. He continned in business there nntil 1881, when he engaged with H. Clarke & Company, railroad contractors, who were then constructing the Northern Pacific line. In the capacity of assistant paymaster and accountant he remained with them until 1883, when the road was completed. He then went with them to British Columbia, where they were constructing the Canadian Pacific Railroad, and where he remained until the fall of

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In reviewing this case, on writ of error to the Supreme Court of the United States, the writ was dismissed upon the ground that no Federal question was raised giving that court jurisdic- tion. (153 U. S.)

The question as to what, if any, mineral lands the Northern Pacific Railroad Company might hold under the land grant by the Gov- ernment to the company, became a serious question soon after the advent of the road in Montana,-and finally, in consequence of the quantity of mineral land included within the boundaries of the grant, a question of almost national importance. If the company could hold, and if the grant covered all lands not known to be mineral at the date of the grant, or at the date of the general or definite location of the route of the road, it would give to the company a vast quantity of mineral land, and some of the richest mines in the world. Cases more or less involving this question, arising in Montana, are Northern Pacific Railroad Com- pany vs. Cannon, 46 Fed. Rep., 224; same vs. Amacker et al., id., 233; same vs. Sanders et al., id., 239; same vs. same, 47 Fed. Rep., 604; same vs. same, 49 Fed. Rep., 129.

the following year. After making a short visit to his home in Canada, he was called by the same company to Billings, Montana, to take charge of their large mercan- tile interests, as bookkeeper. In that position he con- tinued until 1887, when he severed his conuectiou with the company in order to engage in the grain, feed and wool commission business for himself. In this business he is still engaged, and has thus far met with signal suc- cess. He was elected Police Magistrate for Billings in 1892, and Justice of the Peace in November of the same year.

Judge Fraser was married in Scotland, in 1869, to Agnes Elizabeth Manson Ogilbie, daughter of Rev. John Ogil- bie, of Scotland. They have five children living, --- Nettie, James, Christine, Jack and Eddie. They lost one child, Willie, who was drowned in the Yellowstone river, aged eleven years. Ile had gone to the river to fish.

Judge Fraser is a member of Ashlar Lodge, No. 29, A. F. & A. M., of Billings, and also of the chapter and commandry, and of Algeria Temple, Helena. He was

But it was not until the case of the Northern Pacific Railroad Company vs. Barden had been determined by the Supreme Court of the United States (154 United States, 288), which took place on the 26th day of May, 1894, that the question was authoritatively and finally set- tled.

The company claimed the land in question as a part of the land granted to it by the act of Congress of July 2, 1864, and Barden, the de- fendant, by virtue of the discovery and location of a quartz-lode mining claim in August, 1888. Not often, even in the Supreme Court of the United States, was a case more ably argued. The magnitude of the interests involved de- manded from counsel and court alike the most thorough, searching and patient consideration of the case, and such it received in the argu- ment and re-argument before the court.

James McNanght and James C. Carter repre- sented the plaintiff, and their names are suffi- cient to show with what consummate skill and learning they labored for the interest of their client in their arguments and briefs. The de- fendant Barden was represented by W. W. Dixon and Warren Toole, employed by the

reared a Presbyterian, but now has his membership with the Congregational Church at Billings. Politically, he is a stanch Republican.

DANIEL TEWEY, one of the enterprising and successful men of Butte City, Montana, and the builder and propri- etor of the Southern Hotel, is a native of New York, born at Jamestown, March 26, 1858.

His father, Timothy Tewey, was born in Ireland, and was there married to Catharine Curren, a native of Eng- land. In 1841 he emigrated to America, and in 1844 he sent for his wife, who joined him in New York, and to- gether they worked and saved until they were able to buy a farm near Jamestown, where they lived and reared their family of nine children, six of whom are still living, and there the father died in the seventy-eighth year of his age. The mother still resides at the old home place, she being now in her eighty-second year.

Their son Daniel, the subject of this sketch, was next to the youngest of the family. He attended the public schools and remained with his parents until he was thir-

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State of Montana, and by W. H. H. Miller, Attorney General of the United States, George II. Shields and Martin F. Morris.

The argument of Mr. Dixon and the written brief and argument of Mr. Toole have not been surpassed. Attorney General Miller incorpor- ated the speech of Senator Wilbur F. Sanders, delivered in the United States Senate, on the same subject, which attracted the attention of the nation, in his brief and argument on be- half of the defendant.

The opinion of the court, by Justice Field, seems clear and unanswerable. It is held that the North Pacific Railroad Company cannot re- cover under the grant to it by the act of Con- gress, any mineral lands from the persons in possession thereof who have made locations, al- though the mineral character of the land was not known until the year 188, no patent hav- ing been issued to said company therefor; that there is no merit in any of the positions ad- vanced by plaintiff in support of its claim to the mineral lands in controversy. The lan- guage of the grant to the plaintiff is free from ambiguity. The exclusion from its operation

teen, when he was employed as bell-boy in a hotel in Sar- atoga, New York. As soon as he was large enough he worked out on farms, at first receiving $4 per month and board, and later commanding $13 per month, the highest price then paid for farm hands. He was not satisfied, however, to remain thus employed, and soon went to the oil regions of Pennsylvania, where he was employed in drilling and shooting wells. Later he held the position of night clerk in the St. James Hotel at Bradford, Pennsyl- vania. While residing at Bradford he was married, Oc- tober 12, 1878, to Miss Eliza Cross, a native of Dunkirk, New York, and daughter of John Cross, of that place. She is of Irish descent.

After his marriage, Mr. Tewey removed to Leadville, Colorado, where for some time he mined and prospected, meeting with varied success. After this he was in busi- ness in Denver for three months. He then returned to Leadville and ran a boarding house for the American Mining & Smelting Company, remained there three years and made considerable money. Then he made a trip to Texas, returned to Chicago, and from there went to the Coeur d' Alene country and prospected for some time,

of all mineral lands is entirely clear, and whether the mineral character of the lands was known at the date of the grant or afterward was of no importance.

This case settled a question of vast importance to the people of Montana, and it is somewhat re- markable that the railroad company should have so persistently claimed the mineral lands in- cluded within the boundaries of its grant, when by the positive and unequivocal terms of that grant all mineral lands were excluded.

The fourth term of Wade as chief justice ex- pired in the spring of 1887, and he was suc- ceeded by N. W. McConnell, of Tennessee, as chief justice, on the 2d day of May, of that year.

The second terin of Galbraith as associate justice expired in January, 1888, he having served eight and one half years. Galbraith was succeeded by Stephen De Wolfe, of Montana.

McLeary resigned as associate justice April 2, 1888, and was succeeded by Moses J. Liddell, of Lonisana. McConnell resigned as chief justice in March, 1889, and was succeeded by Henry M. Blake, of Montana, formerly associate justice.

and on the 15th of April, 1884, he landed in Butte City, Montana. Here for two years he worked with pick and shovel in the mines. He then rented the old United States House, improved it considerably and gave it the name of the Southern Hotel. Almost from the first he had a good business. After he had been in the old build- ing three years he found it necessary to enlarge bis facil- ities, and accordingly in 1889 he bought the ground on which the building stood and erected a new and more . commodious house. This is a brick building, 52 x 100 feet, has three stories and a basement, and is furnished with steam heat and electric light. Such has been the prosperity which Mr. Tewey has attained that he has not only filled to its utmost capacity this commodious house but he has also had to rent other rooms for the accommo- dation of his guests. He now uses two stories of the two buildings immediately south of the hotel. Mr. Tewey himself is obliging and generous to a fault, and he has surrounded himself with an efficient force of clerks, cooks and waiters, so that everything necessary for the convenience and comfort of guests is provided. That his efforts are appreciated is shown by his large patronage.

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The long and useful service of Justice Gal- braith contributed much to the steadiness and character of the courts and judicial progress of the Territory. Of Scotch parentage, aggressively honest, learned in law, having a high sense of the dignity and decorum that should pertain to courts and the administration of justice, he looked upon the office of judge as second to no other in responsibility, and was alive to the labor and study the office demanded and im- posed. He had been a brave soldier and officer in the Union army during the war for the pres- ervation of the life of the nation, and when he retired from the bench he carried with him an umblemished record. He resumed the prac- tice of his profession in the Territory of Wash- ington.

His successor, Stephen DeWolfe, an old practitioner before the courts of Montana, brought to the bench a wide knowledge of the law and perfect familiarity with the statutes and decisions of the courts of the Territory. Courtly and polished in manner, a finent and elegant speaker and writer, his opinions are without fault or blemish. Upon the admission of the Territory as a State he retired to the practice of his profession in the city of Butte.

Indeed, he is doing by far the largest hotel business of any man in the city.

Having spent his youthful days on the farm, Mr. Tewey still retains his love for farming and domestic animals and since he has become able to indulge himself in it he has purchased a valuable ranch of 500 acres in the Deer Lodge valley. This property is located thirty miles from Butte City. On it he is making improvements to his fancy and is indulging himself in raising fine horses and cattle and St. Bernard dogs. Mrs. Tewey joins her hus- band in these rural pastimes and they spend much of their time in their country home. They have one son, Daniel.

Mr. Tewey is a member of the Masonic fraternity, and in politics is a Democrat. His warm genial manner and his great generosity together with his many other esti- mable traits of character have won for him hosts of friends and have contributed largely toward his success in life.

The services of Justice McLeary, though short in point of time, were brilliant in qual- ity. Before taking his seat upon the Supreme Bench of Montana he had been a lawyer of ex- tensive practice in the State of Texas, and those qualities which made him successful at the bar contributed to his popularity as judge, and when he resigned in order to resume his prac- tice in Texas he cut short a career in Montana full of promise.

Liddell, trained in the practice and proceed- ings of the civil law as administered in Loni- siana, was not slow in adapting himself to the principles of the common law, to code pleading and practice and to the mining law, as known in Montana. He had a broad and comprehen- sive mind, clear judgment, and great sincerity of purpose. Upon the admission of the Terri- tory as a State he resumed the practice at Boze- man, in Montana, with the brightest prospects, bnt died there on the 4th day of October, 1891.

The Supreme Court lost an able judge in the retirement of Chief Justice McConnell. Ex- perienced as a judge before leaving Tennessee, active and energetic, capable of great labor, ex- perienced and trained as a lawyer, he added

ALEXANDER MILTON WALKER, who now owus and occu- pies a fine ranch in the vicinity of Anaconda, has long been identified with various interests in Montana. IIe is a son of David Walker and a brother of D. D. Walker, mention of whom, together with the family ancestry and traditional pioneer characteristics, appears elsewhere in this work.

Alexander M. Walker was born in Lee county, Iowa, January 14, 1839 Ile left his native State in the spring of 1863, in company with his older brother, Joseph C. Walker, and Dr. Allen Hardinbrook, their intention being to go to California. When they arrived at Denver, how- ever, the news had spread there of the rich gold discov- ery at Bannack, Montana, and instead of going on to California they directed their course toward Bannack, where they arrived in June, without having encountered any serious difficulty on the way. Their journey from Denver here was made with mnle teams and in company with forty other men. Upon their arrival at Bannack,

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strength and character to the decisions of the court. But he preferred the bar, and retired to resume the practice at Helena.

Bach reached the Supreme Bench while yet a young man, and before he had much experi- ence at the bar, and his career illustrates the fact that long practice is not necessary to suc- cess on the bench. His more than three years as associate justice next preceding the adinission of the Territory as a State, added lustre and learning to Territorial jurisprudence.

During the long period of service of Wade as Chief Justice,-from March, 1871, to May, 1887-he had seen the Territory grow up from a few scattered settlements to a strong and rich commonwealth, having all the conveniences and comforts of modern civilized life: he had seen the log cabin give way to homes of comfort, culture and luxury, and mining camps become thriving cities with electric railways and lights, with free public libraries, schools and churches; the ancient pastures of the buffalo and antelope become covered with domestic cattle, sheep and

rumors were coming in with fabulous stories of a rich discovery of gold yet further on at Alder Gulch. One of their number, Captain Brookey, advised them to wait until he made a trip on horseback and reported, which they did, and a few days later they received word from him to come on. After their arrival at the gulch, however, there was no lumber with which to work, and after a fruit- less delay of three weeks they returned to Bannack. At Bannack they purchased a claim, worked it for a few days, and as they only took ont $16 they called it a bad investment and gave it up. Again they tried Alder Gulch, where they prospected for a time, and where they pur- chased another claim, paying for it $600. The first six hours they worked in this claim they took out $125, and during the next two months it netted them $1,200. Feel- ing, however, that mining was an uncertain business, and having an opportunity to sell out, they disposed of their claim for $1,200. With the money thus made they pur- chased an interest in a sawmill, deeming this the best investment they could make as lumber was in great demand. This mill was propelled by horses, twelve on a shift, the other twelve being turned out to grass, which was their only food. The capacity of the mill by this process was about 1,200 feet of lumber per day. The fol- lowing spring they changed to water power and soon

horses; the Indian trail and wigwam vanish away as public roads and comfortable homes ap- peared; he had seen the overland freight wagons and emigrant trains disappear from the plains and mountain passes before the all-conquering iron rail and locomotive, whose thundering roar and shrill whistle awoke the slumbers of the desert and the silence of the rugged range; he had seen the ancient trail of the adventurous captains, Lewis and Clarke, through unexplored regions occupied by hostile Indian tribes and wild beasts, and blocked by majestic and un- known rivers and mountains, become the high- way of commerce from ocean to ocean, through a land richer in gold and precious stones than Ophir or India; he had seen the log courthouses supplanted by imposing temples of justice; he had seen how commonwealths grow, how a great State spends its youth, how laws and institu- tions are planted and take root, and how the American spirit and civilization builds, and with what fibres holds together, a nation. Dur- ing his teri as Chief Justice many young law-

thereafter sold out. That fall they purchased an interest in a mill and machinery, for which they agreed to pay $2,000, with interest at ten per cent per month until the debt was paid. The amount was paid in full within two months, and soon afterward they sold out at a good profit.

In December of the same year in which they sold their mill, the Walker brothers and Dr. Hardinbrook returned East, going by stage from Virginia City to Atchison, Kan- sas, their stage fare being $600 apiece. And while on this return trip they paid $2 for each of their meals. In the spring of 1865 they outfitted with wagons and teams, and, taking such commodities as were in demand in the mining regions, they again started West. After four months of travel they reached the present site of Deer Lodge, where they remained during the winter. In the spring they packed their goods on horses to Elk creek, a new mining camp just opened, where they disposed of their provisions at the following prices: bacon, 90 cents a pound; nails, 75 cents a pound; beans, 75 cents a pound; coffee, $1.40 a pound; sugar, $1.25 a pound; flour, 35 cents a pound.

After disposing of their goods they went to Helena, then a lively placer camp, where they again invested in a portable steam mill, and proceeded to cut lumber to fill the growing demand. They sold their product for

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yers commenced their careers in the Territory and became eminent in their profession.

Massena Bullard, one of the leading lawyers of the State, having a large and important prac- tice; Joseph K. Toole, who was prosecuting attorney, delegate in Congress and governor of the State; John J. Donnelly, the pioneer law- yer and member of the legislative assembly, of Choteau county; Jolin W. Tattan, clerk of the court and prosecuting attorney of the same county ; J. C. Robinson, of Deer Lodge, mem- ber of the legislative assembly and constitu- tional convention; William HI. Hunt, who was prosecuting attorney, attorney general of the Territory and is now judge of the First Judicial district of the State; Horace R. Buck, who was a member of the Territorial legislative council and is now judge of the First Judicial District of the State; W. E. Cullen, who was a member of the legislative assembly, attorney general of the Territory, and is now attorney for the Northern Pacific Railroad Company in Mon- tana; W. H. Claggett, the "silver-tongued orator," who was delegate in Congress; W. II. De Witt, who was prosecuting attorney and is now associate justice of the Supreme Court of

from $40 to $50 per thousand feet, and notwithstanding they sold immense quantities of it the lumber accum- ulated from year to year in their yard until in 1869 they had nearly 500,000 feet of lumber. Then came a fire which swept away nearly all the new town and created a market for all the lumber they had, and for their daily output, which was then about 8,000 feet. This increased demand caused an advance in prices and they sold their product for from $50 to $60 per thonsand feet. In the fall of 1872 they disposed of this mill and all their lumber interests. Dr. Hardinbrook had not been in the firm after the Deer Lodge transaction, the milling business being conducted by the brothers, J. C. and A. M. Walker. While engaged in lumbering they also carried on a freighting business with teams, which they continued until 1873. A Mr. Brown was connected with this branch of the business. Their train consisted of sixteen teams, with a capacity of 100,000 pounds. The Walker brothers also ran a train of eighty mules and twenty wagons, freighting in Nevada. In 1872, after a year and a half

the State; E. N. Harwood, now associate justice of the Supreme Court of the State; Thomas J. Lowry and John HI. Shober, both of whom were prosecuting attorneys for the Third Judicial Dis- trict of the Territory, and for a long time part- ners, having an extensive praetiee; the lamented Thomas L. Napton and L. J. Sharpe, leading practitioners; R. P. Vivion, late prosecuting at- torney and member of the legislative assembly for Gallatin county; Thomas C. Bach, late asso- ciate justice of the Territorial Supreme Court; Henri J. Haskell, attorney general of the State; Elbert D. Weed, late United States attorney for Montana: Robert B. Smith, late United States attorney for Montana; I. D. Mccutcheon, late secretary of Montana Territory; Frank H. Woody, judge of the Fourth Judicial District Court; Thomas C. Marshall, late member of the legislative assembly and leading lawyer of Missoula; John F. Forbis, late member of the legislative assembly and leading lawyer of Butte; N. B. Smithi, late prosecuting attorney of Meagher county ; Frank K. Armstrong, judge of the Ninth Judicial District court, late prosecuting attorney and member of the legis- lative assembly; John J. MeHatton and J. M.

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An illustrated history of the state of Montana, containing biographical mention of its pioneers and prominent citizens, Part 129

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