Carter v. Thompson
| Decision Date | 19 November 1894 |
| Citation | 65 F. 329 |
| Parties | CARTER v. THOMPSON et al. |
| Court | U.S. District Court — District of Montana |
J. A Carter, for complainant.
Toole & Wallace, Sanders & Sanders, McConnell, Clayberg & Gunn Massena Bullard, H. G. McIntire, and George B. Foote, for defendants.
In this case complainant commenced an action to quiet title. He sets forth that he located the premises in his complaint described as a placer mining claim. The manner of making, and the steps taken in making, this location are set forth particularly. There is no doubt therefore, but the only title he has to said premises is derived from this location. The title of the defendants is also set forth in these words: 'For the only claim or interest they or either of them have, in privity with the government of the United States, is asserted by them, and each of them, under and by virtue of a pretended entry of and patent to the Helena town site in said Lewis and Clarke county, a copy of which said patent is hereunto attached, and marked 'Exhibit B,' and made a part hereof. ' The patent shows a grant of the premises in dispute, with other lands, to one Miers F. Truett, probate judge of Lewis and Clarke county, Mont. T., in trust for the several use and benefit of the occupants of the town site of Helena, according to their respective interests, etc. In the bill there is an allegation that the premises in dispute are mineral land, and known to be such at the time of and prior to the application to enter said land under the town-site law. The location of the claim under which complainant asserts title was made on the 7th day of September, 1893. The town-site patent was issued June 15, 1872. The claim seems to be made that this patent was issued before the land was offered for sale at public auction. Complainant has not noticed the difference between the statutes which provide for the pre-emption of public lands, and the one providing for the sale of such lands for town-site purposes, and the statute for the private sale of land. In the case of Railway Co. v. Dunmeyer, 113 U.S. 629, 5 Sup.Ct. 566, the supreme court points out 'that sale, pre-emption, and homestead are three different modes of acquiring an interest in public lands. ' There may be added to this list the acquiring an interest in public lands by the proper officers in trust for town-site purposes. Public lands could be pre-empted or obtained as a homestead or for town-site purposes without the land having been offered for sale at public auction. Public lands could not be acquired at private sale until such an offer was made. So that the authorities cited upon that point have no bearing. It seems to be claimed that, as the lands were known to be mineral before the application or issuing of the patent, therefore it is void. The question as to whether the land was mineral or not was one upon which the land department passed in issuing the patent to Miers F. Truett, the probate judge. In speaking of the functions of the land department in the case of Steel v. Refining Co., 106 U.S. 447, 1 Sup.Ct. 389, the supreme court said: 'Necessarily, therefore, it must consider and pass upon the qualifications of the applicant, the acts he has performed to secure the title, the...
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