USA > Washington > Asotin County > Lyman's history of old Walla Walla County, embracing Walla Walla, Columbia, Garfield and Asotin counties, Volume I > Part 35
USA > Washington > Columbia County > Lyman's history of old Walla Walla County, embracing Walla Walla, Columbia, Garfield and Asotin counties, Volume I > Part 35
USA > Washington > Garfield County > Lyman's history of old Walla Walla County, embracing Walla Walla, Columbia, Garfield and Asotin counties, Volume I > Part 35
USA > Washington > Walla Walla County > Lyman's history of old Walla Walla County, embracing Walla Walla, Columbia, Garfield and Asotin counties, Volume I > Part 35
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Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78
Judge Wingard was red headed, a little dyspeptic, somewhat irritable at times and usually wore a shawl around his shoulders, while occupying the bench. He was much given to imposing fines on lawyers, jurors and witnesses who came in late, but generally remitted them after he had cooled off. He was always kind to the young, inexperienced lawyer, giving him good advice, and extending a helping hand when the young fellow was lost in his case and grasping for a straw. He was more exacting with the older lawyer and quickly became impatient when one of them tried to mislead him as to the law. However, he was a good judge, honored and respected by all, and administered the law as it appeared to him, without fear of being recalled.
Andrew J. Cain was probably the pioneer lawyer of Southeastern Wash- ington, and made his first appearance as a clerk in the quartermaster's depart- ment, at the time the treaty was concluded by General Wright with the Indians, at Walla Walla in 1858, and assisted in preparing the terms of this treaty. He practiced in Walla Walla from 1860 until 1873, when he came to Dayton and soon afterwards founded the Dayton News, Dayton's pioneer newspaper. He had full charge in the Legislature of the bills creating the present County of Columbia, is frequently mentioned as the father of that county, and was its first county auditor. He was always considered an able and well equipped lawyer, not particularly eloquent, but very forcible in his speech, and was quite suc- cessful while engaged in the practice. He died in 1879.
Col. Wyatt A. George was born in Indiana in 1819, and after serving in the Mexican war, came to the coast during the gold excitement of 1849. He fol- lowed the mining camps until 1860, when he settled in Walla Walla, practicing there until the District Court was established in Dayton in 1878, when he removed to that town. He practiced in Dayton for ten years and then went to Pomeroy for a short time, then to Colfax, and afterwards returned to Walla Walla, where he died without means, his last wants being administered by the members of the bar, with whom he had practiced for so many years. His knowl- edge of the law was wonderful, and he was often referred to as a walking law library, and by many as "Old Equity." He seldom referred to a law book, yet his knowledge of the principles and reasons of the law, and his familiarity with the technical system of pleadings then in vogue, was such that he seldom entered a case, without interposing a demurrer or motion against the pleading of his adversary, and always demanded and collected terms before allowing them to plead over. He was perhaps the ablest common lawyer in the territory, and was very successful in his practice. The old colonel with his tall, slender form, his white beard, his stove pipe hat and cane, was noticeable in any gathering, and he always believed in maintaining the dignity of his profession in the manner of his dress and his bearing on the street. The colonel wasn't much of a joker, but had a sense of dry humor about him, which sometimes cropped out, and was much appreciated by his associates. There was a drayman in Dayton in those days, known as "Old Jake," who drove a pair of mules to his dray. His mules were attached and he employed Colonel George to claim them as exempt. The previous Legislature in describing the property exempt to a teamster, had unin-
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tentionally omitted the word "mules," and Judge Wingard held against the colonel. After studying the statute for a moment, the colonel remarked to the judge that the members of the late lamented Legislature had evidently overlooked mules, but that it was the first time in the history of the world that a mule had been overlooked by a set of jackasses.
Judge Sturdevant came to Dayton in 1874, and was soon elected prosecuting attorney of the first judicial district. He was the first probate judge of Columbia County and its prosecuting attorney for many years. He was a member of the constitutional convention, and the first judge of this judicial district after we became a state. He practiced law in Columbia County until a few years ago, when he removed to Olympia, but occasionally comes back for the trial of some case and recalls old memories. The judge was of a very genial disposition, always ready to lay aside his work and tell a good story, yet withal he was a splendid lawyer, trying his cases closely and generally with success, and even yet in his old age, he retains his knowledge of the law, his cunning and his ready wit, and bids fair to practice law for many years to come.
Morgan A. Baker was a young man when he came to Dayton from Albany, Ore., in 1877. He was a good office lawyer and a safe adviser. He was some- what diffident in court, but usually tried his cases well. As a politician and manager of the old democratic party in this county, he was in a class by himself. He practiced here for thirteen years and was very successful in his profession and in a financial way. He removed from here to Seattle and afterwards returned to his first home at McMinville, Ore., where he died a few years ago.
The other local lawyers who were present at the first term of court, did not remain here long. M. W. Mitchell is still living at Weiser, Idaho. Tom Crawford located at Union, Ore., and attained considerable political prominence in that state.
In 1879, David Higgins and James Knox Rutherford came to Dayton. Hig- gins was an elderly man, and somewhat hard of hearing; he never had to amend his pleadings, because no one could read his writing ; he had a very good knowl- edge of the law, and is principally remembered as the man who broke the first city charter. He afterwards located at Sprague where he died many years ago.
Rutherford was prosecuting attorney for several years and assisted John B. Allen in the prosecution of Owenby, McPherson and Snodderly, the most cele- brated murder trials of this part of the state. Rutherford went from here to Whatcom, and when last heard from was working at his old trade as a paper maker at Lowell, Wash.
In 1880, Melvin M. Godman and John Y. Ostrander located in Dayton. Judge Godman was then a young lawyer, from Santa Clara, Cal., but was very successful from the start, and soon attained prominence in his profession. He was acknowledged by all, as one of the greatest trial lawyers in Eastern Washington. He was an eloquent advocate, with a good knowledge of the law, forcibly presenting the strong points of his own case, and quick to discover the weak points in his opponent's case, and turn them to his own advantage. He was twice a member of the Legislature, a member of the constitutional con- vention, the second superior judge of this district, an unsuccessful candidate for supreme judge, congressman and governor of the state, and at the time of his death was chairman of the Public Service Commission. He was one of the
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great men of the state. John Y. Ostrander was the son of Dr. Ostrander, and born in Cowlitz County, but came to Dayton from Olympia. He was a good lawyer for a young man; was red headed and a natural fighter, and even when he lost his case, he gave his opponent good reason to remember that he had been in a lawsuit.
In 1881. Elmon Scott was admitted to practice in the courts of this district, at Dayton, and located at Pomeroy, where he became prominent in his profes- sion, and when we became a state, he was elected to the Supreme Court, doing honorable service for twelve years. Ile then retired from practice and is now living quietly at Bellingham, enjoying a well earned competency. In 1883, Mack F. Gose took his examination at Dayton and also located at Pomeroy, where he developed into one of the most successful lawyers in Eastern Washington. He served for six years on our supreme bench, where he justly earned the reputation of being one of the greatest judges our state has yet produced. Judge Gose delved deeply into the law and his thorough knowledge of its fundamental prin- ciples was responsible for his great success upon the bench. The judge is admired by his acquaintances and worshiped by his friends in Garfield County, where he spends his summers on his ranch at Mayview.
In 1884, Samuel G. Cosgrove located at Dayton and was admitted to practice in the courts of the territory, but soon removed to Pomeroy. He was a veteran of the Civil war, an orator and an excellent trial lawyer. His predominant characteristics were ambition and perseverance, never losing sight of his goal until by persistent efforts he had reached it. He was a member of the constitu- tional convention and finally achieved his life long ambition to be governor of Washington. It is to be regretted that he did not live to enjoy the fruits of his life long work.
Much might be said of these three men, but their history is a part of the history of the state; they put Pomeroy on the map, and gave it the reputation of having produced more prominent men than any small town in our state.
During the year 1886, Charles R. Dorr and James Ewen Edmiston, both of whom had read law in Dayton, took the examination and were admitted to prac- tice. Charlie Dorr was an orator and a student and quickly took his place among the leading lawyers, and it was often said that he was the most brilliant young lawyer in this part of the state. With him ambition reigned supreme, and this coupled with natural industry and backed by that drive power which causes men to do things worth while, would have made him a power in this state, had he lived a few years longer. He was prosecuting attorney for two years, and took his place among the campaign orators of the state. His death in 1892, after six years of practice, was the cause of much regret.
James E. Edmiston in private life was a quiet unassuming gentleman, loved and respected by everyone. As a lawyer he was successful from the start, and soon built up a large practice. His knowledge of men and his ability to judge them as they are, gained from his experience as a teacher, a minister and a business man, prior to his taking up the law, made him a dangerous opponent in the trial of cases in court. He was well founded in the principles of the law, was a convincing speaker and had great weight with a jury. He filled the office of prosecuting attorney for two years, with credit to himself. His death in 1900, while yet in the prime of life and the midst of his usefulness, was a great
WINTER NELLIS PEARS, CLARKSTON
APPLES GROWN IN CLARKSTON
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loss to the community. It can be truly said, that a better, kinderhearted man than J. E. Edmiston, never lived.
The history of this state cannot be written without referring many times to the lawyers mentioned in this paper. A senator, a congressman, a governor, many judges of the Supreme and Superior courts, and all have made good in the positions to which they were called. Southeastern Washington has been the training ground for many great men.
The present bar of Columbia, Garfield and Asotin counties are mostly home products, but they are good lawyers, upholding the honor of their profession, and full of promise, and will undoubtedly follow in the footsteps of their predecessors. and help write the future history of our great state.
The representative of bench and bar in old Walla Walla County who has attained the most distinguished rank in office, having been a member of the State Supreme Court of Washington, as well as possessing high rank in the regard of multitudes of his fellow-citizens, is Judge Mack F. Gose of Pomeroy. He also, like the other contributors, belongs to a prominent pioneer family, and also a family of lawyers. He too is on our advisory board.
We have the pleasure of presenting here a special sketch by Judge Gose, including a narration by him of a case of peculiar interest and importance, the case of old Timothy, the Nez Perce hero of the Alpowa :
TIMOTHY OF ALPOWA AND HIS LAND CASE
On a broad fertile plain on the Snake River near the mouth of the Alpowa Creek, about 1800, there were born two Nez Perce children. of the full blood, a boy and a girl, named Timothy and Tima, who, upon attaining the age of manhood and womanhood, became husband and wife and remained such until the death of the wife which occurred in 1889. Timothy, the subject of this sketch, passed on about a year later. He was a chief of the Nez Perce tribe and. from the time of his birth until his decease, dwelt at the place where he was born.
He was converted to Christianity by the Reverend Spalding, and became a licensed preacher. There was born to Timothy and Tima as issue of their marriage four children, three sons and a daughter: He-yune-ilp-ilp, or Edward Timothy, Jane Ti-moochin, Estip-ee-nin-tse-lot, or Young Timothy, and Amos Timothy who died during childhood. Edward was twice married. There was born to his first wife a daughter Pah-pah-tin, who married Wat-tse-tse-kowwen. To them was born a daughter Pitts-teen. The issue of his second marriage was a daughter Nancy Tse-wit-too-e, who was married to Rev. George Waters, an Indian of the Yakima tribe. The issue of this marriage was two daughters, Ellen and Nora. Jane Timoochin was twice married. To her was born a son, William, the issue of her first marriage. To William was born a daughter named Cora. To Young Timothy was born a daughter Amelia, who had a son named Abraham. The living issue of Timothy and Tima at the time of the death of the latter was Jane Timoochin, Pitts-teen, Ellen, Nora, Cora and Abraham. The second husband of Jane Timoochin was John Silcott, a prominent and much respected citizen of the State of Idaho, with whom she lived until her death in 1895. In 1877 Timothy filed his declaration of intention to become a citizen of
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the United States A year Later he filed a home toal entry on the tract of land on which est Inal he continued to reside In 1853 he made final prout as a natural zed cituen of the United States, and a year later received his letters patent No record evidence of his naturalization has been found, but Here is abundant evidence that he voted at least once and that he was a taxpayer
A reference to the dates given will show that Timothy was a lad four or tive, perhaps six years of age when the Lewis and Clark party ma le ite memor- able voyage down the Snake River m 1805 and stopped at the Indian village where he resided The writer has heard it stated by a friend of Timothy that he claimed to remendar seeing these white men There can be but little doubt that he was old enough to have an occurrence so strange to him indelibly stamped upon his memory From carly manhood until his death Immothy was a good man, whether measured by the white skin or the red skin standard. Hle early adopted the habits of sithzed life and was a friend of the white race History records that he was instrumental in saving the lives of General Steptoe and his com wpand. Gen. Hazard Stevens in the hfe of his father, the eminent Gen. Isaac 1 Stevens, relates that Timothy attended the great Indian council held at Walla Walls between Governor Stevens and many Indian tribes in 1853, at which time and place a treaty was concluded, and that "the morning after the council, being Sunday, he ( Timothy ) preached a sermon for the times and held up to sisdigna tion of the tribe and the retribution of the Almighty those who would coalesce with the Cayuses and break the faith of the Nez Perces." Like Lawyer. the head chief of the Nez Perce tribe at the time this council was held and the treaty was made, Timothy loved to dwell in peace. They alone among all the chiefs there assembled saw the folly of fighting the white man.
The remains of Timothy rest in an unmarked grave on the banks of Snake River-the spot of his birth, his life and his death. Efforts have been made to secure Congressional recognition of his worth to the white man when he was struggling to make a settlement in the Northwest in the heart of a country peopled by thousands of Indians, many of whom were hostile to our race So far the effort has been unavailing. It is said that there were but two pictures in Timothy's simple cabin home-one of George Washington, the other of himself This may excite the decision of those who know nothing of the simple, honest, "Tristian, loyal character of Timothy ; but to those who know his history it seems not an improper linking of two names: one great and loyal to all that was right and just ; the other, obscure as measured by white skin standards, but also loyal to right and justice as he understood the Christian teaching
With this sketch of Timothy and a proper understanding of the prominent 1 ort that he played in several of the momentous events of history in this section. the reader will see the interest which gathers around a noted law case connected with the land upon which he filed near the junction of Alpowa Creek with Snake River
A summary of the case is as follows .
The patent through which Timothy acquired the legal title to his homestead recites that the land shall not be sold or incumbered for a period of twenty years. Despite this limitation, Timothy and Tima, in June. 1884, about two months after the patent had been issued, executed an unacknowledged lease of the land to Ichn M Schott for a term of ninety-nine years The expressed consideration
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for the lease was a nominal sum, payable yearly. In April, 1890, Silcott assigned an undivided one-half interest in the lease to L. A. Porter. In March, 1892, he assigned the remainder of the lease to Richard Ireland. In March, 1902, Silcott conveyed his interest in the land to Ireland by a deed of quitclaim. In October, 1903, Ireland and wife conveyed their interest in both the land and lease to William A. White and Edward A. White. In March, 1904, Porter assigned his interest in the lease to W. J. Houser and Ross R. Brattain, and at the same time conveyed to them certain fee interests in the land which he had purchased from certain of the heirs of Timothy and Tima.
In May, 1904, Houser and Brattain entered into a contract with White Brothers, above mentioned, whereby they agreed to convey to them the Porter interests, both fee and leasehold.
About 1903 or 1904 Charles L. McDonald, a lawyer residing and practicing his profession at Lewiston, in the State of Idaho, purchased the inheritances of Cora, the granddaughter of Jane, and Abraham, the grandson of young Timothy, and of Noah, the father of Abraham. The other interests were claimed by White Brothers. They also claimed the one-sixth interest inherited by Cora.
As an outgrowth of the facts stated, intricate and prolonged litigation fol- lowed. Mr. McDonald commenced a suit against White Brothers, alleging that the lease was invalid on two grounds: First, because the lease was unacknowl- edged, and second, because the patent to Timothy should have contained a five- year non-alienation clause in accordance with the act of Congress of March 3, 1875. He also asserted title to the entire fee in the land acquired as he claimed through conveyances from all the heirs of Timothy and Tima. He did not claim to have acquired the inheritances of Silcott or of the heirs of Edward, but his con- tention was that Silcott and Jane had not been legally married and that Edward had not married.
At the trial it was established that in early times living together in the manner usual between husband and wife constituted a legal marriage, according to the Nez Perce tribal custom. It was also established that, according to the same custom, either spouse was at liberty to separate from the other and at once take a new mate; thus giving legality to both the divorce and second marriage. From the evidence offered the court found that Edward was twice married; that there was living issue of both marriages, and that Silcott and Jane were legally mar- ried. It was shown that Rev. James Hines, an Indian preacher, licensed but not ordained, performed the marriage ceremony between Silcott and Jane about the year 1882, at some place on the Alpowai Creek, in the then Territory of Wash- ington. Mr. McDonald's contention that only ordained ministers could perform the marriage ceremony and that a ceremonial marriage without proof that a mar- riage license had been procured was invalid, was held to be without merit.
The evidence showed that the actual consideration for the lease was that Silcott should support Timothy and Tima during their natural lives; that he did so, and that he gave them a decent burial was amply proven. Under the laws of Washington an unacknowledged lease of real property for more than a year is not valid. The Whites relied upon permanent and valuable improvements and the long continued possession of their predecessors under the lease as constituting both laches and estoppel against the right to assert the invalidity of the lease. Touching this aspect of the case it was shown that the land was unfenced and Vol. 1-18
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covered with sage brush, except about one acre which had been used as an Indian garden when the lease was made; that the land then had a value of five dollars per acre ; that in the fall of 1890 Silcott and Porter plowed, cleared and leveled about sixty acres and planted it to fruit trees; that the next spring they planted about twenty acres to alfalfa; that in the fall of 1903 White Brothers planted about twenty acres additional to orchard; that water had been carried to the land for irrigation by those claiming under the lease, and that at the time of the trial (about 1906) the orchard was in good condition and the land of the value of $20,000.
Both the trial court and the supreme court took the view that the heirs were guilty of laches, which precluded setting aside the lease, they having permitted those claiming under it to have the undisturbed possession of the land for more than twenty years. It was also held that, in view of the valuable improvements placed on the land by those who in good faith believed the lease to be valid, it would be doing violence to the plainest rules of equity to permit those who have remained passive when it was their duty to speak, to be rewarded for their inat- tention to their legal rights. Upon these principles the lease was sustained. Mr. McDonald was adjudged to be the owner of the one-sixth interest inherited by Cora and the one-third interest inherited by Abraham and his father, Noah, mak- ing an undivided one-half of the fee simple title. White Brothers were adjudged to be the owners of the remaining fee interest composed of the inheritances through Edward and of John Silcott, all, however, subject to the ninety-nine-year lease. The marriages and heirships were proven by the testimony of Indian wit- nesses.
The case was tried at Asotin. One old Indian testified that he was born there and that he owned the town and adjoining land. In testifying to the first marriage of Edward, he caused some merriment by saying that he was busy as usual when it happened and gave little attention to an incident so trivial in his busy life. Edward Reboin, whose father was a Frenchman and whose mother was a Nez Perce Indian, was used as an interpreter. He testified to the customs of marriage and divorce among the Nez Perce Indians. He said in early times two marriage customs were recognized and followed. The simplest one has been stated. The other was to have a wedding feast, attended by the relatives and friends of the young couple; following which the happy pair betook themselves to the tepee of the husband and they twain became husband and wife.
The trial of the case consumed several days. The court permitted wide lati- tude in the presentation of the evidence. Several white men and many Indians gave testimony on the various phases of the case. Among others, Mr. R. P. Reynolds, now a resident of the City of Walla Walla, made oath that he was well acquainted with Timothy; that he explained the lease to him before he signed ; that the actual consideration for the lease was that Silcott should support Timothy and Tima during the natural life of each thereof; that he did so and that he gave each of them a decent burial. The examination of an Indian witness through an interpreter is an interesting experience. The Indian carries his traditional stoicism to the witness stand. There he is as impassive as a piece of marble. Neither by sign nor act does he give any indication of the working of his mind to the examiner. His answer to one question rarely suggests another question. The examiner works his way in the dark as best he may. This expe-
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rience is particularly true of cross-examination. It has been said that cross- examination is an art. Some artist may have seen the light in cross-examining an Indian, but to the writer the Indian has been a man of mystery.
THE PHYSICIANS
From the bench and bar we turn to the medical profession. It is hard to ex- press the debt of gratitude which these pioneer communities owe to their phy- sicians. Among those who have completed their work and passed on, the minds of all people of old Walla Walla would turn with profound respect and veneration to Dr. N. G. Blalock as justly entitled to be called the foremost citizen of this section, and among the foremost of the State of Washington. Conspicuous among the great physicians who have passed away, Dr. John E. Bingham would be called up by all the old-timers as a man of extraordinary ability, great attain- ments in general knowledge, and a skillful and successful practitioner. Many others, gone and still living, have made noble contributions to the upbuilding of the region covered by our story, but limits of space forbid special mention.
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