An illustrated history of the state of Montana, containing biographical mention of its pioneers and prominent citizens, Part 78

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 78

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HISTORY OF MONTANA.

occasion required would ship large numbers of books at the rate of twenty-five cents per pound to remote counties, to be used there in the trial of cases.

At the Angust term, 1871, of the Supreme Court, that being its first term after the acces- sion of Wade as Chief Justice and Murphy as Associate Justice, several important cases were tried, among them that of Robertson et al. vs. Smith et al. (1 Montana, 410), which has be- come a leading case upon the question decided, for all the mining regions of the West.

The case had been tried before Wade, J., at the July (1871) term of the Meagher county district court. It was such a case as could not have arisen in the East, and about which an Eastern lawyer, however learned he might have been, would have known nothing at all. Cer- tainly the trial judge having just arrived from Ohio had entered a new legal world. And to

men of business ability. The hotel and all appliances in connection with the house and baths are in the best pos- sible condition, and they are doing a most excellent work for the many invalids who come to the waters for health and strength.

Mr. Beckwith is a member of the A. O. U. W. and af- filiates with the Republican party.

MRS. LAURA JANE SCOTT, one of Montana's bravest pioneers, is the builder and owner of the Scott Honse, an elegantly furnished establishment of Butte City. To the pioneer women, as well as to the men, is due great credit for the part they took in braving the dangers of the frontier and paving the way for more advanced civiliza- tion.

Mrs. Scott was born in Canada, September 25, 1830, daughter of Daniel Tomlinson, a native of Dublin, Ire- land, and a descendant of English ancestors. She re- ceived her early education in Indiana. Her spirit of ad- venture led her to make the journey to Montana in 1864, and she crossed the plains in company with some friends and greatly enjoyed the trip. Upon her arrival in Vir- ginia City, she superintended the building of a log house on the Summit, in which she opened a boarding-house, receiving $14 per week for day board. Lumber being scarce, she had no floor in her house, and on the ground she spread down gunny-sacks for a carpet. After a year spent at this place, she removed to Ophir Gulch, and at Blackfoot City built another log boarding-house, this one being 20 x 24 feet, and costing $500. This cabin could

lawyers to whom mining law was not a sealed book, the case was a pioneer, and its decision has been a living precedent not only as to placer-mining claims, but as to quartz-lode locations.

Justice Knowles, who wrote the opinion for the conrt in affirming the judgment of the dis- trict court, held that under the act of July 26, 1866, where a citizen or a person who had de- clared his intention to become a citizen, takes up, holds and possesses a placer-mining claim in pursuance of the local rules and regulations of the miners of the district in which the claim is situated, the act aforesaid confers upon such person a title equivalent to a patent from the United States, so long as such rules and regula- tions are complied with; and so, that the appel- lants, who were the county commissioners of Meagher county, and a road supervisor, and who were attempting to construct a road over and

boast of a floor, its cost being $75. She remained there two years and did a successful business. In 1865 she was married to Samuel Scott, who arrived in Montana the same year she did. In 1868 they started the Scott House at Deer Lodge, and condneted the same until 1873. Then she kept the McBarney House a year. In 1876 we find her keeping a station in the Black Hills, at a stage station sixty miles west of Deadwood. That was at a time when the "road agents" infested the country, when the stages were held up and a number of persons killed, and when both life and property were in danger. Ex- cepting the presence of her hired help, Mrs. Scott was alone at this time, and her station was twelve miles from any settler. She armed herself with a Winchester rifle and a revolver, and right bravely did she hold her ground, determined not to surrender or be robbed without a fight. Another protection she had was a faithful Shepherd dog. One of the road agents was captured by the detectives and was taken to her barn, where he made a full con- fession of his connection with the gang. He was hung up three times by the neck to gain this information! She continued there until the stage route was changed, when she sold out and removed to Deadwood. There she built a nice house. Within a year from the time it was built it was burned down, and as she had no insurance her loss was a heavy one. Her next move was to Rapid City, where she kept the American llonse uutil 1883, buying a ranch adjoining the town. Then, selling her interests there, she returned to Montana. In 1885 she bonght

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across the placer claims of respondent, as over and across the public domain, which they were authorized to do by said act of Congress, should be perpetually enjoined and restrained from so doing.

This decision, giving as it did to the local rules and regulations of miners the full force and effect of law, did much to strengthen and uphold the title to mining claims, and placed that kind of property on a solid founda- tion.

The January term, 1872, of the Supreme Court became important by the decision in the Gallagher-Basey case before mentioned, in which was determined how and in what manner the common law and equity jurisdiction of the district courts must be exercised and carried into effect.

At the August term, 1872, of that court, twenty-six cases were argued, submitted and

property on Granite street in Butte City,-a lot, 42 x 50 feet, with a cheap building on it, this building also being destroyed by fire soon afterward. She then planned and built the Scott House, alluded to at the beginning of this sketch. It has three stories and a basement, is fitted and furnished thronghout in the latest and most approved manner, and comprises twenty large rooms, the first floor being occupied as store rooms, and the upper part being used as a lodging-house, over which she presides as land- lady in a most becoming manner. Previous to the build- ing of this house, and while it was being erected, she rented and ran the Beaver Block House, called at the time the Scott House.

Mrs. Scott's long experience in hotel business and her extended acquaintance throughout Montana render her an excellent hostess. She owns other property in Butte City besides that referred to.

Having no children of her own, she adopted a little girl, Frankie Scott, who is now the wife of John Manning, Sheriff of Deadwood.

JOSEPH SHINEBERGER, One of the prominent and wealthy farmers of Red Rock, Montana, was born in the city of Philadelphia, Pennsylvania, January 5, 1836, son of Nicho- las and Mariane (MeCullish) Shineberger.

The Shinebergers are of German origin, Nicholas Shine- berger having emigrated from Germany to this country when he was a young man. He was a prominent manu- facturer and was successful in his operations.

Joseph received his education in the common schools,

determined, many of them important and con - trolling, in forming, building up and directing the judicial system of the Territory.

In the case of the United States vs. 196 buffalo robes, etc. (1 Montana, 489), at that term, the court. by Knowles, J., determined that Montana is Indian country under the laws of the United States regulating intercourse with the Indian tribes; the case of Donnell et al. vs. Humphreys (1 Montana, 578), by Wade, C. J., that the grant of a water ditch by general words, includes the excavated channel, the rights to the water by which it is supplied and mnade valuable, and another ditch which conveys wa- ter to it; the case of Griswold vs. Boley (1 Montana, 545), by Wade, C. J., defined the rights of married women to their separate prop- erty under the laws of the Territory (see Van- tilburg vs. lIamilton, 2 Montana, 413, by Knowles, J., on the same subject); the case of

and when he was only twelve years old went to work as errand boy in one of the offices of the English Hardware Company, where he remained one year. When he was thirteen he began learning the drug business in his uncle's store, but did not like this occupation and soon secured a position in another store, where he spent two years. After that he served as an apprentice in a shovel factory, re- maining in the factory until he attained his majority. Ile was employed in work at his trade when the Pike's Peak excitement broke out in 1858. In the spring of the following year he went to Colorado, and at Boulder creek inined and made a good living that year. From there he went up Clear creek cañon, where he helped build a diteh above Golden, working at this time by the day. Then came a change. He first went to Tarry-all diggings, and from there to California Gulch, making money during the summer and spending it in the winter. In 1861 a gold discovery in New Mexico, known as the "Baker ex- citement," caused him to go to that point. When he started for New Mexico he had good clothes and a supply of money. When he returned he wore a pair of overalls made of a wagon-sheet and his moccasins were of raw- hide, aud he made the trip on foot and without money. He then worked at Golden and at Gold Dirt diggings for six months; thence went up to Nevada City, Colorado, where he made some money mining. In 1862 he returned home, and remained in the East until the following year.

In the spring of 1863 we again find him en route for the West, his destination this time being Idaho, and the

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Atchison vs. Peterson, et al. (1 Montana, 561), by Wade, C. J., determined what was an aban- donment of a water ditch and water right; that the first appropriator of water for mining pur- poses is entitled to the same, as against subse- quent appropriators, without material interrup- tion in the flow thereof in quantity and quality, which decision was affirmed by the Supreme Court of the United States in a very instructive opinion by Justice Field ( -- Wall. -- See Bach, J., in McCanley vs. MeKeig, 8 Montana, 389; the case of Woolman et al. vs. Garringer et al. by Murphy, J. (1 Montana, 535), deter- mined that the prior appropriator of water for mining purposes has the right to change the place of diversion or use of the water (see same case, 2 Montana, 405; opinion by Knowles, J.); the case of Lamme vs. Sweeney (1 Montana, 584), by Knowles, J., contains an interesting

journey across the plains being made with mule teams. He and his party had intended going to the Salmon river, but upon their arrival at Snake river they found that Ban- nack was the center of attraction, and accordingly directed their course to this camp. Here they arrived in July, 1863. The same evening of his arrival, Mr. Shineberger went up to Horse prairie and staked out a claim. Just then the famous Alder Gulch was found and he went thither, and was one of the first inhabitants of Alder Gulch. He mined there successfully for two years. Then he began a prosperous freighting business between Salt Lake City and Virginia City. Subsequently he packed flour on mules from Deer Lodge to Elk Creek. At the latter place he engaged in the dairy business, getting his cows from his farm at Horse prairie, and selling milk at $1 per gallon in large quantities, and at $1.50 per gallon for small quantities. In 1865 he came back to his Horse prairie ranch and remained a year. Then he bought his preseut ranch at Red Rock, which now consists of over 3,000 acres and is seven miles long. Mr. Shineberger's mining experience covered a period of seven years. Since then he has devoted his attention to farming and stock- raising, carrying on his operations on an extensive scale and meeting with prosperity. The greatest misfortune with which he has met was in the winter of 1886-7, when a large number of his cattle perished because of the severe winter, his loss amounting to no less than $75,000. For miles in every direction the ground was strewn with dead cattle. In a single year he has shipped as much as 700 tons of timothy hay.

discussion of the law concerning attachment and replevin, which decision was affirmed by the Supreme Court of the United States ( --- Wall, ---- ), and Thorp vs. Freed (1 Montana, 651) contains a discussion npon the subject of water for irrigating purposes. Wormel vs. Reins (1 Montana, 630), opinion by Knowles, J., has long been a precedent upon the subject of amending pleadings, after trial, to make the averments correspond with the proofs. (See also Hartley vs. Preston, 2 Montana, 415; Hershfield vs. Akin, 3 id., 442; Randall vs. Greenhood, 3 id., 506; Southmayd vs. South- mayd, 4 id., 107: Anderson vs. Hulme, 5 id., 298; Lavelle vs. Lowry, 5 id., 500; Palmer vs. McMasters, 6 id., 169; and Ramsey vs. Com- pany, 6 id., 498.)

The other causes at that term, though impor- tant, and involving large amounts of money or

Mr. Shineberger is a man of temperate habits and has not only been uniformly prosperous, but has also always enjoyed good health. Politically, he is a Democrat; fra- ternally, a Mason and a member of Bannack Lodge, No. 16.

WILLIAM JOHNS, a farmer of Little Prickly Pear valley, was born in Germany, October 15, 1835. He received his education in his native land, but after reaching manhood came to the United States, landing in New York in 1856. He afterward began his career as a farmer near Chicago, receiving $7 per month and board, and remained in Illi- nois three years. During the Pike's Peak excitement Mr. Johns crossed the plains with ox teams to that place, where he mined for two and a half years, and received from $1.50 to $2 a day and board. In the fall of 1863 he located in Bannack City, Montana, and three weeks later went to Virginia City, arriving there during the trial and hanging of the road agents. In the spring of 1865 Mr. Johns engaged in freighting between Helena, Fort Ben- ton and the different mining camps, also purchased and hanled salt from Salt Lake City to Helena, for which he paid seven cents a pound and received seventy cents per pound. Five years later he assisted in building the toll road in the Little Prickly Pear valley, managed the same for seven years, and then pre-empted 160 acres of land where ne now resides. In addition to his farming inter- ests Mr. Johns kept the stage station until the railroad was built, and since that time has been engaged in rais- ing cattle and horses on a large free range near his farm. Ile raises a grade of Durham cattle, of which he keeps

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property, contain nothing more than the appli- cation of well known principles of the law to the facts in each case.

The briefs and arguments of counsel at that term, for learning and ability, have never been surpassed in the Territory or State of Montana, and would have added dignity and strength to any bar in the country; and, if the opinions and decisions of the judges were not sound and able, the fault was not with such lawyers as E. W. Toole, W. F. Sanders, Claggett and Dixon, Sharpe and Napton, Chumasero and Chadwick, Joseph K. Toole, Shoper and Lowry, Henry N. Blake, Samuel Word, James G. Spratt, Henry L. Warren, George G. Symes, W. E. Cullen, W. J. Stephens and U. S. District Attorney Cornelius Hedges, who, at that term, attempted to enlighten and educate them.

A little later came the case of Barkley vs. Tieleke (2 Montana, 59), in which the Supreme

Court, by Servis, J., decided that a water right is property in the nature of real estate, and must be conveyed by deed, and that a defective conveyance of a water right is equivalent to an abandonment thereof.

This has been a leading case and lias exer- cised a controlling infinence. It is doubtful if that influence has always been in furtherance of justice. In the early days, when water rights, especially for the purpose of irrigation, had their inception, possessory rights to land and improvements were sold and transferred with- ont much ceremony, a bill of sale and a delivery of possession answering the purpose; and it is not very clear why a water right for use in enl- tivating such land might not have been con- veyed with equal informality, or why, as aban- donment is a question of intention, an honest purpose to convey a water right for a consider- ation paid, should be defeated by a technical

about 600 head, and also has both work and road horses. In 1891 he built a good frame residence on his place and has piped good spring water through his house, milk honse and barns.

Mr. Johns was married October 11, 1866, to Miss Mar- garet Hoffelt, a native of this country but of German descent. To this union was born four children,-Annie L., David F., William J. and Florence. The wife and mother died in 1879, and March 16, 1880, our subject was united in marriage with Miss Elizabeth Wallendorf. So- cially, Mr. Johns is a member of the I. O. O. F. and the A. O. U. W., and, politically, he supports the Republican party. Ile takes a deep interest in the welfare of Mon- tana, of which he is a worthy citizen and an honored pioneer.

W. A. ALLEN, a dentist of Billings, and one of the found- ers of the city, was born in Noble county, Ohio, in 1848, a son of Robert T., and Rachel (Guiler) Allen. The father was a cousin of Ethan Allen, of Ticonderoga fame. Our subject first applied himself to the trade of gunsmith, afterward to the blacksmith's trade, and finally, in 1877, turned his attention to denistry. He completed his deutal education under the instructions of the American Dental Association in Chicago.

Mr. Allen crossed the plains to the Black Hills for mining purposes, arriving in July, 1877. At Spearfish he joined a party of 250 persons. They had a battle with Indians, in which seven men and one woman was killed. The party was diminished to 154 people and fifty wagons,

after which Dr. Allen was chosen captain, and they pro- ceeded to Bozeman. They had encounters with Indians at Redwater, Hay creek and on Belle Fourche river; at the latter place they killed eight Indians, and the Captain was four times wounded by red-skins while conducting the party to Bozeman. During the journey he found the body of Harry J. Morris, of Iowa, who had been killed by Frank Roberts. Captain Allen rode 1,400 miles, at an expense of $90 to himself, as a witness, and his evidence convicted Roberts, who was executed. At Virginia City, Montana, our subject was on the ground where General Custer fought and fell in 1876. He has killed many buffalo and antelope where Billings now stands, and has had many encounters with Indians while traveling on the stage between Bozeman aud Miles City, during which time he lost a number of horses.

Mr. Allen finally began the practice of dentistry at the old town of Colson, but since the starting of Billings. in 1882, he has followed his profession in this city. He built the first shingle-roof house in the valley. In company with John L. Guiler, Mr. Allen owns 700 acres of land on Clark's fork, where they have founded the town of Allen- dale, on a strictly prohibition plan. They have completed a fine flouring-mill at that place, with roller process and water power, at a cost of $15,000. The Doctor is largely interested in stock-raising.

IIe was first married in 1874, in Ohio, to Josephine IIous- ton, a daughter of John Houston, who died from disease contracted while a soldier in the late war. Two children

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defect in the deed of conveyance, ignorantly inade, whereby the water and water right so intended to be conveyed, is held to be abandoned by the vendor, the purchaser receiving nothing, while the water is given to the subsequent ap- propriator. Prior to the statute of 1885, re- quiring a record of appropriations of water and water rights, the date and priorities of such appropriations existed only in memory, and mneh litigation has resulted in the adjudication of these rights. In such cases it would seem to be a dictate of justice to hold that to be the elder and prior appropriator, where in point of time the water was first taken from the stream, and to where it has, year after year, been con- tinnously used for cultivating the land, even though there may have been informalities in conveying or in delivering possession of the land or water right from time to time, as the

were born to that union,-William O. and Robert T. The wife and mother departed this life in 1882.

In 1887, in Fountain City, Wisconsin, the Doctor was united in marriage with Mollie, a daughter of Hon. A. Finkelnburg, of that State. He represented his eounty in both branches of the Legislature. Mr. and Mrs. Allen have one child, Lelah.

Our subject is one of the noted hunters of the Rockies, and may well be termed a mighty hunter or Nimrod of the West. His trophies are numerous, and his hair- breadth escapes many. He has killed thirty-nine bears, many of them grizzlies, and one weighed 1,300 pounds. He ean relate thrilling seenes by the hour. One of his daring feats was made in a eanoe. IIe sailed down the Big Horn river into the Yellowstone, and down that river to the Missouri, the Sioux Indians frequently shooting at him, but he returned them shot in return. The Doctor and wife are members of the Methodist Church, and the former affiliates with the Prohibition party. His brother, R. T. Allen, came to this eity in 1882, where he is now engaged in the practice of law.

THOMAS B. GARDENER, a prominent rancher of Silver Bow county, is a Montana pioneer of 1862 and is also what is popularly termed a Forty-niner of California. IIe is familiar with every mode of travel and every phase of life in the West from the time of the first settlements here on up to the present, and his reminiseences of pion- eer days are most interesting. A detailed account of his life and travels would fill a volume. Lack of space, how- ever, prevents us from publishing more than a brief bio-

same passed into the hands of different owners, the continued uninterrupted use of the water on the land ought to fix the appropriation as from the date of the beginning of such unin- terrupted use.

Another case, belonging to the same period, of interest and importance, is that of the Ter- ritory vs. Lee (2 Montana, 124), in which an act of the Legislative Assembly entitled "An . act to provide for the forfeiture to the Territory of placer mines held by aliens," was declared void. The defendant, Fan Lee, was a China- man, and a subject of the Chinese Empire, and had purchased and was in possession of three thousand feet of placer mining ground, which, by the decision of the district court had been forfeited to the Territory. On appeal to the Supreme Court, in reversing the judgment be- low, Wade, C. J., discussed the general powers

graphy of him in this work; but the following, although somewhat abridged, will serve to show him as he is-a brave old pioneer.

Thomas B. Gardener was born at Warehouse Point, Hartford county, Connecticut, October 24, 1824. ITis grandfather, David Gardener, was one of the early set- tlers of the State of New York and it is believed that he was of Seoteh origin. His son Daniel, the father of Thomas B., was born in one of the Eastern States about the year 1789, and when he grew up was united in mar- riage to Miss Prudenee Whiple, a native of New Haven, Connectient. They removed to Johnstown, Licking county, Ohio, in 1834, and he died there in 1844, in the fifty-first year of his age; her death occurred in 1850. Both were members of the Episcopal Church and were people of the highest respectability. Their family con- sisted of three sons and two daughters, and of this num- ber Thomas B. is the only one in Montana.

Thomas B. Gardener spent his boyhood days in Ohio, and for some time worked at the cooper's trade with his father. When news of the gold discovery in California spread like wild-fire all over the country, he bade adieu to home and friends and started for the new El Dorado of the West, leaving Sandusky, Ohio, Jannary 3, 1849, and going from there to Cincinnati and thenee to Inde- pendence. At Independence he joined one of the first companies of gold-seekers that crossed the plains to California. The train with which he traveled was eom- posed of thirty wagons drawn by horses and mules, and there were about tour men to each wagon, all well armed.

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and limitations of a Territorial Legislature, and held that alienage is a disability that can only be taken advantage of by the sovereign power; that a Territory, under the limitations of the organic act does not possess such power, the acts of its legislature being subject to Congres- sional supervision; that its courts have no final jurisdiction; and especially that a Territory . could not by forfeiting to itself the possessory title of an alien to a placer mining claim, be- come the owner of such title for the reason that such ownership by the Territory would inter- fere with the primary disposal of the soil, which, under the organic act is retained by the general Government,-in other words, that the Territory by its legislature could not forfeit the property of an alien and thereby become the

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An illustrated history of the state of Montana, containing biographical mention of its pioneers and prominent citizens, Part 78

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