claim during the period of publication of the notice of such appli-
cation; otherwise he is barred from questioning the validity of
such placer location. Raunheim v. Dahl, 167.
Right to possession of vein within placer. Such placer claim-
ant is entitled to the possession of a quartz lode within the bound-
aries of his claim if he had no knowledge of the existence thereof
at the time he applied for a patent. Ib.
No presumption as to existence of vein. The discovery of a
quartz lode two or three hundred feet outside of the boundaries
of a placer claim raises no presumption that such lode extends
within the placer boundaries, when there is no surface indication
thereof. Ib.
17. Mining claim - Patent - Reservation of rights claimed under Butte
town site patent declared void. No title was acquired under the
United States patent to the town site of Butte, issued September 26,
1877, to any portion of the Smoke-house quartz-lode mining claim,
located in 1875, and to which patent was issued on March 15, 1881;
and the exception to the last-mentioned patent, excepting and ex-
cluding therefrom all town property rights upon the surface, and
all houses, buildings, structures, lots, blocks, streets, alleys, and
other municipal improvemen s on the surface of the said mining
claim not belonging to the grantees therein, and all rights neces-
sary or proper to the occupation, possession and enjoyment of the
same, did not impair the title of the grantees, acquired by their
location, and compliance with the laws, to the absolute ownership
of the lands embraced within the boundaries of their claim; and
the defendants, claiming under the town site patent, have lost
their rights, if any they had, over said claim, by failure to file
their adverse claim before the said patent issued. Butte City
Smoke-house Lode Cases, 397.
Not affected by town site patent, which can confer no title
in mining claim. An exception in a town site patent, excluding
from its operation all mines, mining claims, and possessions held
under existing laws, is an exception required by the law, and is
made by the law itself, and is conclusive upon the question that
the government did not, and did not intend by such town site pat-
ent to, convey any valid mine, mining claim, or possession held
under existing laws; and it is therefore impossible, under a patent
to a town site, to acquire any interest in any valid mine or mining
claim, or in the surface thereof. Ib.
Town site patent- No defense to ejectment under mining
patent. Claimants claiming title, under a town site patent, to the
surface ground of a mining claim over which the town site is
extended, are not relieved by such town site patent from setting
up their adverse claims on notice of application for a patent to
the mining claim, and their failure to assert their claims before
such patent is issued bars them from doing so thereafter. Ib.
Owner of mining claim not affected by town site putent.
The owner of a valid mining claim over which a town site is ex-
tended by United States patent is not required to file an adverse
claim to such patent, as his claim is expressly excepted by law,
and the usual exception inserted in such town site patent from its
operation. Ib.
Mining claim location - Intends a grant — Rights under,
not restricted by terms of patent. A valid location of a quartz-lode
mining claim on the public mineral lands of the United States is
a grant from the government to the locator thereof, and carries
with it the right, by a compliance with the law, of obtaining a
full and complete title to all the lands included within the bound-
aries of the claim, which by the location are withdrawn from sale
or pre-emption; and the patent, when issued, relates back to the
location, and is not a distinct grant, but the consummation of the
grant, which had its inception in the location of the claim; and,
therefore, the land officers have no right to insert in the patent
any exceptions or reservations diminishing or curtailing the rights
acquired by the location. Ib.
Patent to mining claim — Reservation in, void. There is
no law authorizing the United States land office to exclude from
a mining claim patent the right to surface ground; and a reserva-
tion in such a patent, excluding therefrom the right to all lots,
blocks, streets, alleys, houses, and municipal improvements on
the surface of the claim, is necessarily void. Ib.
Conclusive at law as to title. The issuance of a patent to
a quartz-lode mining claim is conclusive, as to the title to the land
within its limits, upon the court in an action at law. Ib.
Silver King mining claim - Not affected by Butte town site
patent. The facts being on all-fours with the facts in Murray v.
Buol, ante, p. 397, both as to the town site patent and the mineral
patent, held, following those cases, that the town site patent to
Butte City does not cover the mineral ground included within
the limits of the Silver King lode, but that the said lode is ex-
pressly reserved from the operation of the same by the terms of
the patent itself, and by the act of congress, and that the excep-
tions made by the mineral patent are unauthorized by law and
void, and that the Silver King patent conveys a perfect title to the
surface ground in controversy, to which the defendants have no
claim whatever. King v. Thomas, 409.
25. Statute of limitations — Mining claim — Issue of patent. The stat-
ute of limitations cannot run against a mining claim until the
patent thereto has been issued, any state or territorial legislation
to the contrary notwithstanding. Ib.
26. Mining claim — Ejectment — Pleading - Failure to do necessary
work. In an action of ejectment to recover a mining claim it is
sufficient for the claimant to show a valid location. He need not
also set out that he has done the work necessary to represent the
claim; the failure to do such work should be shown by the other
party. The grant evidenced by a valid location continues oper-
ative and in full force, so as to protect the ground from a subse-
quent location, until the title thereby acquired has become
forfeited by a failure to do the necessary work or otherwise; and
such matters of forfeiture, by which the claim is to be defeated,
must be set forth in the complaint or answer. Renshaw v. Swit-
See EMINENT DOMAIN, 275; WATER DITCH, 31.
See MINES AND MINERAL LANDS.
See PARENT AND CHILD, 243.
See MUNICIPAL CORPORATIONS, 502
Acknowledgment by attorney in fact. An acknowledgment of a mort-
gage by an attorney in fact, as follows: "TERRITORY OF MON-
TANA, County of Gallatin —ss.: Be it remembered that on this
23d day of April, 1878, personally appeared before me, the under-
signed, notary public in and for said county and territory, L. M.
Black, by Z. H. Daniels, one of his attorneys in fact, and who is
personally known to me to be the person described in and who
executed the foregoing mortgage, and who acknowledged to me
that he had executed the same freely and voluntarily, for the
uses and purposes therein set forth; in witness," etc., is a suf-
ficient acknowledgment to entitle the deed to be recorded, under
Code Montana. McAdow v. Black, 601.
See EJECTMENT, 65, 597; PUBLIC LANDS, 442.
1. City ordinance attempting to create a monopoly. The grant by a
city council of the exclusive right of selling to the city all the
water required by it for sewerage and fire purposes for the period
of twenty years, at a minimum rate fixed in the contract, is a
monopoly, and this though the grant does not prevent other peo-
ple from selling water to private citizens. Davenport v. Klein-
schmidt, 502.
2. City cannot create a monopoly. A city council has no authority
to grant to any person a monopoly, even where no express prohi-
bition is found in the charter or other acts of the legislature. Ib.
3. City taxation - Right of tax payers. Any tax payer, on behalf
of himself and others, has the right to institute proceedings in
a court of equity to prevent the misapplication of public funds
by municipal officers, on the ground that the threatened illegal
corporate act will increase the burden of taxation and thus bur-
den the plaintiffs. Ib.
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4. Fiscal management - City charter Helena, Montana. Montana act
of 1883, amending the charter of the city of Helena, limits the
power of the city council to incur any indebtedness on behalf
of said city for any purpose whatever to exceed the sum of
$20,000." Held, that a contract which binds the city to take water
from the contractor at an annual rent of $15,000, where the bonded
indebtedness of the city is $19,500 and the floating indebtedness
over $15,000, is in violation of the charter, as such a contract cre-
ates indebtedness within the meaning of such amending act. Ib.
5. Ordinance unreasonable. In proceedings for an injunction to re-
strain a city council from carrying out a contract, it appeared the
city had a population of ten thousand and an assessment valua-
tion of $5,000,000; that it was chartered five years previously;
that its bonded indebtedness was $19,500; that its floating debt was
$15.000; that four per cent. of its taxable property would amount
to $200,000; that the taxing power, if exerted to the limit al-
lowed by the charter, would be $15,000 per annum. Held, that
an ordinance confirming a contract by which the city bound itself
for the period of twenty years to take all the water it required
for fire and sewerage purposes from the contractor at a rent of
$15,000 a year for the first one hundred and fifty hydrants, with
obligations to erect more hydrants as the mains were extended,
was unreasonable and ultra vires. Ib.
6. Public act No. 159, forty-ninth congress. first session, limiting in
debtedness in territories. A contract by which a city whose
assessment valuation is $5,000,000 agrees to pay $15,000 a year
for twenty years cannot be considered as falling within public
act No. 159, forty-ninth congress, first session, prohibiting munici-
pal corporations in the territories becoming indebted to an amount
exceeding four per cent. of the valuation. Ib.
7. City ordinance-Violation of city charter of Helena, Montana.
An ordinance or contract by the city council of Helena, agree-
ing to take water from the contractor for twenty years, which is
made without previously advertising for bids, is void as being in
contravention of the city charter, which requires that all con-
tracts over $100 shall be advertised for bids. Tb.
8. Injunction restraining city council from incurring indebtedness.
Where a city has already reached the limit of indebtedness per-
mitted by its charter, and its council has passed an ordinance con-
firming a contract which may render it liable at any time to the
payment of an additional annual sum equal to three-fourths of
the limit of its indebtedness as fixed by its charter, and directing
that warrants shall be issued to pay such sum monthly when the
terms of the contract are fulfilled, an injunction restraining the
city council from carrying out the contract cannot be considered
as improvidently or prematurely issued. Ib.
1. Cumulative evidence. A new trial will not be granted on the
ground of newly-discovered evidence, if the same be merely
cumulative. Garfield M. & M. Co. v. Hammer, 53.
2. Newly-discovered evidence. When the newly-discovered evidence
is such as would not modify the finding or judgment, a new trial
will be denied. Francisco v. Benepe, 243.
3. Surprise. When the plaintiff has simply proved the allegations of
his pleadings, the defendant cannot complain of surprise. Ib.
4. On appeal - Conflict of testimony. The appellate court, on an ap-
peal from an order denying a motion for new trial alone, on the
ground that the evidence did not support the verdict, will not
reverse such order, where there has been a conflict of testimony in
the court below. Beck v. Beck, 285.
What is open-Allegation in answer not refuted - No objec-
tion below. A defendant cannot rely on an appeal from an order
denying a motion for a new trial upon a failure of the plaintiff
to reply to an allegation in the answer, which the appellant claims
was new matter, when the point was not raised in the court be-
low, either on the trial or on the motion for a new trial, and
where the appellant treated it as denied, and produced no evidence
in support of it. Ib.
6. Claim and delivery. Where, in an action of claim and delivery,
the plaintiff asserts a conditional sale, and defendant maintains a
sale absolute, and the evidence shows an absolute sale, the trial
judge ought promptly to set aside a general verdict in plaintiff's
favor, and graut a new trial. Silver Bow M. & M. Co. v. Lowry,
288.
7. Appeal-Order denying new trial- Decree presumed in accord with
evidence. On an appeal from an order denying a motion for a new
trial, there being no evidence before the appellate court, the judg-
ment and decree below will be presumed to be supported by the
evidence until the contrary appears. Beck v. Beck, 318.
Insufficient evidence - Want of particularity - Code Civil
Procedure Montana, section 287, subdivision 3. When the ground
upon which a motion for new trial in a civil action is based is the
insufficiency of the evidence to justify the judgment of the trial
court, and the statement does not specify the particulars in which
the evidence is alleged to be insufficient, that question will not be
considered on appeal. Bass v. Buker, 442.
9. When granted - Moral certainty. Where there is no direct testi-
mony that the accused, who was indicted for the murder of his
child by beating, did the killing, and the circumstances do not
point to him more than to any other of the persons capable of
commiting the crime (of whom there were several about the
premises at the time it was done) as its perpetrator, the evidence
is not sufficient to satisfy the mind of the guilt of the accused to
a moral certainty, and a new trial should be granted. Territory v.
Rehberg, 468.
10. Service of notice Waiver. Where, in a criminal action, it ap
pears that the notice of motion for a new trial was filed, and
that counsel on both sides appeared and argued the motion, that
is equivalent to waiver of service of the notice. Ib.
See MUNICIPAL CORPORATIONS, 502.
Emancipation of minor - Purchase and control of property Rights
of father. A father may emancipate his minor child, and, when
this has been done, the property purchased by the child with his
own means is not subject to the control or disposal of the father.
Francisco v. Benepe, 243.
1. County printing - Contract for - Mandamus to compel.
persons, whose bids for county printing have been rejected by the
board of commissioners, cannot join in a proceeding for a writ
of mandate, to compel the contract for such printing to be
awarded to them. Nor, in such proceeding, can the validity of a
contract therefor be determined without joining the person to
whom the contract has been awarded. Wright v. Commissioners
of Gallatin County, 29.
2. Claim and delivery - Defendants having separate liens cannot join.
In an action of claim and delivery, defendants having separate
and distinct liens on the property sought to be recovered, arising
out of separate contracts, cannot join in setting up such liens to
defeat the plaintiff's right to the possession. Underwood v. Bird-
3. Probate judge- Trustee of express trust - Town sites - Code Civil
Procedure Montana, section 6. The probate judge in Montana
territory, in relation to town sites, is the trustee of an express
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