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Fergus County Democrat. (Lewistown, Mont.) 1904-1919, September 19, 1905, Image 1

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Fergus County
■** V
Vol.II. No. 5.
Price 5 Cents
Register Brassey and Receiver Eld
ridge Decide Moore's Entry
One of the Most Important Land
Cases Ever Held in the West
Appeal to Be Taken.
Register Edward Brassey and Re
ceiver L. W. Eldrldge of the U. S.
land office last Thursday rendered
their decision in the famous land con
test case in which A. O. Robinson con
tested the desert entry of John W.
Moore. The decision goes thoroughly
into the case and orders that the entry
be cancelled because it has not been
reclaimed as required by the desert
land act. This case attracted atten
tion all over the west and was warmly
fought by both sides, Huntoon, Word
en & Smith representing the contest
ant and Hilger & Busenburg and R.
von Tobel, the claimant. The decision
in full is as follows:
The land in contest is situated on
w'hat is locally knov'n as the Rock
creek bench, a level bench of land sit
uated in the Judith Basin between
Rock creek and Trout creek, embrac
ing sections 1, 2, 3, 4, 9, 10, 11, and 12,
in township 13 north, range 16 e, and
all of township 14 north, of range 16 e,
excepting sections 30, 19, 18 and 7, and
the northern tier of sections, being
nearly 22,000 acres.
In order to intelligently consider the
status of the lands, it is necessary to
briefly summarize their history. The
settlement of the Judith Basin by
white people commenced in 1879, and
consisted first of the moving of herds
of cattle from crowded ranges in the
eastern portion of the state. No at
tention was paid to the settlement by
the owners or attaches of the cattle
herds, the cattle roaming over the en
tire basin at will and requiring no at
tention except the rounding up for
branding in the spring and for ship
ment in the fall.
In 1882 parties interested in sheep
commenced moving their flocks into
the Judith Basin; that industry neces
sitated the care of the sheep during
the winter months, calling for hay,
grain and sheds. This required the
ownership of land; the sheep men com
menced taking up land; straggling set
tlers at this time commenced coming
in, increasing yearly until 1889 and 1890
the cattle range was in the same
crowded condition as where they or
iginally came from, and the large
herds were removed from the Judith
The early settlers having in mind
the universal opinion as to the arid
condition of lands in Montana, settled
first upon the creek bottoms where
they could obtain water for irrigation,
and no attempt was made to raise
crops upon pre-emptions or home
steads without first taking out a ditch.
As the creek bottom became appro
priated, the settlers turned their at
tention to the foothills of the surround
ing mountains where snow remained
later in the spring and rain was more
abundant. These lands are now pro
ducing fine crops without irrigation.
No attempt was made to settle upon
what is designated as "bench lands''
until all of the available lands here
tofore mentioned were appropriated,
and settlers had to either experiment
with the bench lands or move on. The
first bench lond filing in this district
was made upon the Rock creek bench,
upon which, as already stated, the
land in the contest is situated, as are
also a number of other desent entries.
Referring to our records we find the
first filing made in the sections men
tioned was homestead entry No 1894,
Helena Series, of James McConnell,
in section 9, township 13 north of range
16 e, in 1882. Eight years afterward
Bernard Logan filed homestead entry
No. 4769, Helena Series, Janies Jones
filed homestead entry No. 589, in this
office, in 1893, and Nathan Platt filed
homestead entry No. 311, in this office,
in 1892. While the foregoing entries
are in sections embraced in the Rock
creek bench, two of them are situated
on the Trout creek bottom, Trout
creek running through them, and oth
ers are watered by springs.
In 1896 John B. Gaston, Abner Stap
leton and William E. Cummings, two
of them witnesses in this case, emi
grated to to the Judith Basin and set
tled on Rock creek bench, bein f the
first entries made upon bench land in
this land district with the expectation
of raising crops thereon without irri
gation; fourteen years had elapsed
from the date of the first settlement.
The entry in contest was filed Novem
ber 21, 1901; at this time there were
thirty-five homestead entries and nine
desert filings existing on the Rock
creek bench. At the time of the initi
ation of this contest there were no va
cant lands left, there being 121 home
stead entries and 28 deserts. The land
in contest is surrounded by homestead
filings, except on the west, which is
the desert entry of John C. Stapleton,
No. 7040, made December 2, 1901; it is
situated within three miles of the vil
lage of Moore, a station on the Mon
tana railroad, situated in section 16,
township 14 north, of range 16 east,
where there is erected a grain elevator
with a capacity of 75,000 bushels.
We have gone into the resume of the
situation, deeming it necessary in the
adjudication of this case, and in view
of the fact that other contests have
been initiated against desert entries in
the vicinity of the land in contest, and
of the report of Special Agent Edgar
S. Foley upon the land.in contest, and
the general situation of the lands up
on the bench, and also as a reference
in future proceedings.
We do not concur in the assertion
of counsel that the status of the des
ert entries in the vicinity of the land
in contest, as to their being desert or
non-desert in character, will depend
upon the decision of the case at bar.
So many factors enter into this phase
of the case, such as the character of
the soil, situation of the land and re
gards natural moisture, distance from
market as a factor in connection with
remunerative crops, etc., etc., that
each case can only be ajudicated upon
facts as presented therein. The fact
that some lands in the vicinity of the
land in contest are producing paying
crops without irrigation is not in it
self is not sufficient evidence that the
land in contest is non-desert in charac
ter, unless it is conclusively shown
that the conditions are the same. The
fact that land is shown to be valuable
for mineral or coal is not evidence that
adjacent lands are in the same condi
tion. It can readily be conceived that
a homestead may be filed upon a creek
bottom,, containing sufficient moisture
to raise crops without irrigation, and
a desert entry may legally be filed up
on a higher bench adjoining, the char
acter of the soil in which may be en
tirely different, and upon which noth
ing can be produced without artificial
irrigation. (The department has desig
"Lands bordering upon streams,
lakes or other natural bodies of water,
or through or upon which there is any
river, stream, lake, pond, body of wat
er or living spring, are not subject to
entry under the desert land law until
the clearest proof of their desert char
acter is furnished."
There are no springs upon the land
in contest, the nearest water being
over four miles distant.
"Second. Lands which produce na
tive grasses sufficient in quantity, if
unfed by grazing animals, to make an
ordinary crop of hay in usual season,
are not desert lands."
The register of this office resided
within two miles of Rock creek bench
for a period of ten years, and the re
ceiver within six miles for the same
length of time, and in addition to the
testimony submitted, of their own
knowledge, know that the land in con
test would not so produce.
"Third. Lands containing sufficient
moisture to produce a natural growth
of trees are not to be classed as des
ert lands."
There is not a tree growing in town
ship 14 north, range 16 east, or in any
portion of township 13 north, of range
16 east, until the foothills of the Snowy
mountains are reached.
There have been four timber culture
entries filed upon the Rock creek
bench; three were canceled, and final
proof made upon one; the se 1-4, sec.
17, tp 14 n, r 16 e, by Posy T. Elston;
the final proof in this case showed that
repeated efforts had been made to
raise trees without irrigation, and that
the sprouts either winter killed or
perished from drouth.
"Fourth. Lands which will produce
an agricultural crop of any kind In
amount to make the cultivation reas
onably remunerative, are not desert."
Claimants and witnesses making
desert land entries are required to
"That said land will not, without ar
tificial irrigation, produce an agricul
tural crop of any kind in amount to
make the same reasonably remuner
No resident of the Judith land dist
rict from 1881 to 1890, would hesitate
for a moment to swear that, in his
opinion that all lands upon the Rock
creek bench would not produce paying
crops without irrigation. Thousands
of dollars have been expended by pri
vate individuals and corporations, and
millions are now being expended by
the government, to irrigate hundreds
of thousands of acres of lands in the
state of Montana similar to those up
on Rock creek bench, and in view of
the situation as shown by the evidence
in this case as to the productiveness
of these lands, this latter allegation
can only be an opinion. It is evidence
that no one can tell what land will
produce until it is cultivated.
We are, therefore, of the opinion
that at the date of the entry the land
in contest fulfilled all of the require
ments of the desert land act. and that
the only question to be determined as
to the desert or non-desert charactei.
of the land is: Is the character of th<,
soil the same and are the conitions
the same as that of land in the vicini
ty that are producing paying crops
without irrigation? Has the land been
cultivated, and if so, have reasonably
remunerative crops been raised with
out irrigation?
As to the character of the land, the
(Continued on page six.)
Engineer Estimates That the Latest
Kendall Discovery Shows Close
to Twenty Million Dollars.
North Plum Creek Mininq & Develop*
ment Gompany Incorporated by
Kendall Mining Men.
Although no effort is being made to
boom the camp, Kendall is gradually
but persistently forcing itself on the
mining men of the west as one of the
greatest mining districts ever opened
up in the Rocky mountain region.
Every week something develops to
strengthen this opinion of competent
mining men who have had their eye
on the district for the last year or two.
New companies are being formed ev
ery week or two and many thousands
of dollars worth of development work
is now outlined for the next twelve
months. There will necessarily be a
little lull in this work during the cold
winter months, but that time will be
used in getting things in yet better
shape for extensive work in the early
Much speculation has arisen as to
whether or not the Kendall people
found everything as reported in their
recent explorations made on the Bul
lard property of which they secured a
majority of stock as soon as the dis
coveries by the Queen Mining com
pany were announced. It can now be
stated as authoritive that the first re
ports concerning this property were
absolutely correct. The Kendall com
pany have sunk a number of diamond
drill holes and in every one they have
passed through an enormous body of
high grade cyanide ore. In fact, It
has been stated by a mining engineer
who is thoroughly acquainted with the
entire situation, that the company has,
between the extreme holes, not less
than $17,000,000 of ore, concerning the
existence of which there is no possi
bility of error. It is there and it is
believed that further development
work on the grounds will open up un
told millions in addition to this vast
Having satisfied themselves as to the
genuine value of the ground, the com
pany will next start the actual devel
opment of the ground by sinking a
shaft. Work on this shaft will not be
permitted to lag and there Is no room
to doubt but that within another year,
there will be at least one more big cy
anide mill in the Kendall district.
A meeting of the stockholders of the
Fergus Gold Mining company was
held in the office of R. von Tobel last
Saturday morning and the following
officers were elected: Henry M. Rea,
president; A. S. Wright, vice presi
dent; David Hilger, secretary, and
George J. Bach, treasurer. The com
pany was recently formed with a capi
tal stock of $3,000,000. It has some four
thousand acres of ground which joins
the Bullard property and extends in a
northeasterly direction for 12 miles.
Thirty thousand dollars will be spent
in diamond dril explorations on the
property ner the Bullard place. Their
first hole will be but a few hundred
yards from one o the holes which re
veales a vast body of ore on the Bul
lard ground, and as there is no break
in the formation, so far as determined,
it is very reasonably believed that the
ore body extends out over a very large
portion of the ground owned by the
new company. If it proves as a num
ber of competent mining engineers
think, that the formation is similar
to that of the amous Rand district in
South Africa, this company has one of
the best things in the west. Inasmuch
as the men behind the company are all
local people, it is to be hoped that they
strike it and in large bunches.
A new company known as the North
Plum Creek Mining & Milling com
pany was recently incorporated under
the laws of South Dakota, with a cap
ital stock of $250,000, the shares being
$1.00 each. Dr. McCoy, A. J. Smith,
Harry Armold, Tom Miracle and other
Kendall men are interested in the com
pany. J. E. Wasson, than whom there
are not many better mining attorneys
in the west, is the company's attorney.
This company owns fifteen claims on
the north fork of Plum creek, just
across the hill from the Kendall and
Barnes-Klng properties. Armold and
others have spent about $6,000 in the
development of a portion of this prop
erty and have some fine showings of
gold, silver and copper. They also
have opened up a good body of cyan
ide ore and development work will be
pushed with all possible haste.
These are not all of the active opera
tions going on in this busy district by
any means. Scores of prospectors are
working all over the hills and John R.
Cook and others are pushing develop
ment work or are preparing to do so,
on an extensive scale. The very na
ture of the ores o the district precludes
a big rush. It takes money to develop
made to pay, and for this reason the
average prospector with no capital
but his pick and shovel is not attract
ed as to the Nevada and Colorado
fields. But the fact remains that from
present indications, the camp will be
known within the next twelve months
as one of the greatest gold producing
regions in the United States.
Library Board Holds Meeting and
Lets Contract For the Carnegie
Building to Lowest Bidder. i*
A meeting of the library trusteed
was held Saturday afternoon ^in the,
office of Chairman Frank E. S
and the sealed bids for the construc
tion of the new library, ill accordance
with the plans and specifications sub
mitted and accepted at a previous
meeting, were opened. Those ^present
were Chairman Frank E. Smith, JMrs.
A. W. Warr, Miss Ada Meyerslck,
David Hilger, H. C. Brown and George
M. Stone.
Three bids were submitted and up
on being opened it was found that the
bid of Tubb Bros., for $9,950, was the
lowest. George Wells bid $11,000 and
Henry Lorenz $10,650. The bid of Tubb
Bros, was accepted and this enterpris
ing firm have already begun work on
the structure.
The building, as shown by the plans
submitted two weeks ago and now on
exhibition in the window of H. C.
Brown, will be a beautiful structure,
built of stone and constructed accord
ing to the most approved methods for
such structures. Architectural beauty
will be specially aimed at by the
builders and when complete, it will be
a credit to the city and another excel
lent monument to the generosity of
the famous Scotehm anwho contributed
the means for its erection. The con
tractors expect to have the building
finished or well along toward comple
tion before snow flies.
Tull Arrangements For the Opening
Day of the Fergus County Fair—
The Democrat was informed by Sec
retary O. W. Belden this morning that
everything is ready for the opening of
the fair tomorrow. The grounds have
been cleaned up, all of the buildings
put in shape to receive the numerous
displays and the track is in as fine
condition as it ever was, which is say
ing much, as there / are few better
tracks In the state than the one here.
The firms in the city who are going
to have special exhibits on the grounds
are arranging their displays today
and many of the agricultural, stock
and vegetable exhibits are arriving on
the grounds.
"There will be good racing every
day, the cowboy race will be a supreme
attraction, the Lewistown hand will
play every afternoon and a numbre
of special attractions will make this
fair worth coming miles to see,'' said
Mr. Belden just before we go to press.
Get your business all transacted to
day and go to the fair for the next
three days.
If you want all the local news read
the Democrat.
. A good second hand organ for sale
at W. S. Smith's piano store.
Order to Show Cause Why Order of
Sale of Real Estate Should Not
Be Made.
In the District Court of rhe Tenth Ju
dicial District of the State of Mon
tana, in and for the County of Fer
In the matter of the Estate of Wal
ter B. Miner, Deceased.
It appearing to this court by the pe
tition, this day presented and filed by
George J. Bach, the Administrator of
the Estate of Walter B. Miner, deceas
ed, that it is necessary to sell the
whole of the real estate of said de
cedent to pay the debts of said deced
ent and the expenses and charges of
It is therefore ordered by this Court
that all persons interested in the es
tate of said decedent appear before
the said District Court on Wednesday,
the 25th day of October, A. 1). 1905, at
the hour of 10 o'clock A. M. of said
day at the Court Room of said Court,
at the Court House, in the City of
Lewistown, Fergus County, Montana,
to show cause why an order should
lot be granted to said Administrator
to sell so much of the said real estatil,
to-wit: the north-easterly one-half
of lot eight and all of lot nine in block
Eleven of the Stafford Addition to the
Original Site of Lewistown situ
ated in Fergus County, Montana, with
the buildings and other improvements
thereon as shall be necessary, and that
a copy of this order be published four
successive weeks in the Fergus Coun
ty Democrat, a newspaper published
and printed in said county.
Dated this 19th day of ntember.
E. K. CHEADLE, District Judge.
First publication September 19-41
Special Correspondent For the Dem
ocrat Tells of the Weekly Hap
penings in Big Camp.
Assessment Work Is Being Done on
Various Claims-Lewistown Lid
Extended to Kendall.
Robert Wedlock, who recently pur
chased the!, butchering business of
Robinson lk-os.,wns arrested last week
for a violation of the stock law. John
Mllsap,. who claimed to be a stock In
spector, swore out the warrant but
could not be induced to state In what
way the law had been violated. A few
days ago Wedlock dressed a calf and
Mllsap was watching him but did not
see him take the hide into the shed.
Mllsap said: "I've been watching you
for a long time and now I've caught
you," and lmediately swore out a war
rant for Wedlock's arrest. Mr. Wed
lock has done very little of his own
butchering, always buying his beef af
ter it was butchered, and everyone
feels that there Is probably no grounds
for his arrest. Mr. Wedlock has not
received his license yet, although It
was paid for some time since. Judge
Kelly put him under bonds.
The case of David Richards came up
for trial last week. Richards is the
diminutive Welshman who Is doing
time at the county Jail for beating his
wife. Attorney F. E. Smith of Lewis
town was counsel for Richards. Judges
Kelly will withhold his findings until
Judge Cheadle returns to Lewistown,
when Richards will be tried for insan
ity. For the present Richards is un
der bonds.
Rambling 1s closed down and the.
"lid is on tight." Deputy Sheriff Jas.
Fisher was notified by County Attor
ney Roy Ayers to stop all gambling In
Kendall. Every saloon owner In town
was notified and for almost a week the
town has been much quieter in the
evenings than formerly. When gambl
ing closed in Lewistown there was an
exodus of boosters and tinhorns, etc.,
to Kendall, and it is hoped by these*
measures to rid the town of this un
deslrablee element.
From all accounts the mining prop
erties in Iron Gulch are looking up.
S. S. Hobson, A. S. Wright and F. B.
Wright are interested In properties in
that district and are doing assessment
work. William Gerllck is also doing
assessment work on hts claims. Geo.
Crawford has a lease on the Draper &
Waldorf property and It Is the Inten
tion of Mr. Crawford and his partner
to prospect thoroughly with a dia
mond drill.
A social dance was gotten up on Fri
day night by several young men i'u
Kendall, and a fine* crowd was In at
tendance. The music—guitar and man
dolin—was furnished by Rogers and
Ward from Lewistown. During the
evening several popular songs were
sung, which added greatly to the ev
ening's pleasure.
Mrs. Newell anil her daughter Win
ifred came out from Lewistown Tues
day and spent the rest of the week at
the home of J. M. Barren;. They were
joined by Miss Newell and Master
Edson on Friday and returned to Lew
istown Sunday afternoon.
Mr. and Mrs. Frank Willie and Mr.
and Mrs. Hugh Martin and little
daughter left Tuesday for the Belt
mauntalns where they will spend two
or three weel%i fishing and hunting
on the Lost Fork. They expect to get
lots of game and their friends are an
ticipating a treat when they return.
Mrs. Thomas Riser and Miss Fasel
entertained a small company of friends
Thursday night for Mrs. Newell and
Miss Winifred Newell.
On Saturday evening Mrs. Newell
and the Misses Newell were at home to
their friends at the home of J. M. Bar
rent. A most enjoyable evening was
spent with music and conversation.
Mr. and Mrs. Raul Smith and son
Luton drove to Lewistown Saturday,
and Mrs. Smith will spend the winter
there, after a few weeks' stay at the
Chico hot springs.
H. I. Shaw has about completed tin
addition of a large room and porch to
his house. The house has been paint
ed and presents a handsome appear
A great deal of building is going on.
George Crawford is putting a house
on his property near the school house.
James Stretch is excavating and will
build a four room house on Acorn st.,
and William Martin is excavating for
a house. J. S. Kelly has about com
pleted a new three room house and the
Backsliaw brothers are putting up a
four room house. "Doc" Hendricks is
also building. The plans are being
draughted for a store building which
the Power Mercantile Co. will erect,
^nd will have completed by December
1. It is the intention of the company
to have a stock of goods in time for
the Christmas trade.
Miss Henry has returned from Hel
ena where she has been attending
business college.
Bete Munson was over from Maiden
last week.
Ilenry Barrent made a business trip
to Lewistown Saturday.
Seymour Howell was all smiles
Thursday and the boys at the Barnes
Klng smoked cigars with him over
the arrival of a baby boy at his home.
E. E. Doty, M. D., of Nelhart is in
town. He arrived Saturday.'
William Able and John Hogl were
out from Lewistown Wednesday.
Dr. and Mrs. M. M. Hedges and Mr.
and Mrs. E. O. Busenburg and son
drove to Kendall Sunday and returned
that evening.
Arthur Kelly returned Wednesday
from the Shaw ranch on Cottonwood,
where he spent several days.
J. M. Parrent left late in the week
for Big Timber, where he will fish and
hunt for a few days. He will visit
Butte and Helena before returning.
A. S. Wright, H. M. Rea and A. M.
Plumb were In town on mining busi
ness last week.
The Judith Transportation Co. will
run a (6) six horse coach from Kendall
to Lewistown Thursday, Friday and
Saturday, Sept. 21, 22, 23, leaving Ken
dall at 8 a. m. Fare round trip, $2.00.
A1 Barden and wife of Beaver Creek,
who have been at Jackman's ranch
this summer, passed through town last
Friday on their way home.
William Sampson, who was injured
In the Barnes-Klng mine at Kendall,
has been in Gilt Edge for several days.
George Beilis of Collar Gulch has
been in the hospital about one week
where he underwent an operation for
appendicitis. He Is some better but
not yet out of danger. Dr. Attlx of
Lewistown was called In consultation.
R. 1). Young has purchased the Culd
well residence and will In the future,
make this Ills permanent home. This
is the fourth time he has moved this
summer and he says he has had
enough of It.
Bay day on the 15th passpil off quiet
ly save a few 111 tie differences where
the settlement of which was visible
about the face of the dlfferers.
N. J. Littlejohn of Lewistown was
In Gilt Edge for a few days last week.
11. C. McEvony was down from Ills
mountain resort last Saturday.
Fred Qulhcll injured his hand In the
butcher shop last week and was out
several days.
M. J.Callahan has moved back from
Malden and will soon, go to work at
the mill.
Ernest Kies of Magi unis was in town
Sunday and Informed us that he will
be here twice a week In the future
with his meat wagon.
It Is rumored that J, H. Heckler,
who has been with T. R. Cunningham
for the last year acting In the capacity
of pharmacist, will soon start a drug
store here.
It. M. Dougherty and wife and Ro
ert Sharpe and wife returned Satur
day from a three weeks' trip to the
National park.
Frank Wilson, who Is connected with
the mines at Malden has gone back
to his old home in Minot, N. D., for a
two weeks' visit.
W. C. Cox of McDonald creek was in
town Saturday.
A colored gentleman from Lewis
town was the butt of a huge Joke
while In a somnlloscent state last Sat
urday night. When aroused he
(bought he was In the midst of a No
vember shower with two cigar stubs,
four white poker chips and a large
slice of water mellon In front of him
and two artists with kodaks, ready to
get a snap shot "of him. "The sfla'P'
shots will be on exhibition at the
county fair this week, provided the
management can find an appropriate
place for them.
Rufus Warner has taken Dick
Young's horse to drive for a week.
The animal needs much driving every
day to keep him gentle.
Joseph Beilis is in town attending
the bedside of his brother, George
George Dunn and wife and S. New
man and wife went to Lewistown on
business Monday.
In the absence of V. Caraway, who
Is at the Bortland exposition, Miss
Susie Dunn has entire charge of the
business. It Is probable that Mr. Car
away may not return alone.
J. W. Morgan and George Brimble
were over from Maiden Sunday.
E. H. Crabtree was in town Mon
John Warner, father of Robert War
ner, is in town for a few days.
Hiram Miller of Malden tied his
team in front of the Gilt Edge hotel
last Monday and when the triangle
called the guests to dinner, the team
started—but not to dinner. Several
parties were near by and caught the
team and the damage was slight.
J. E. Lane, manager for the Montana
Lumber company, returned home last
evening from a business trip over the
western part of the state. He visited
Missoula, Bonner and a number of big
lumber centers in Western Montana
and eastern Idaho. He says that the
the western portion of the state shows
many evidences of prosperity and that
Missoula particularly, is on the boom.
Sharply Company Good.
The Sharpley Theatre company
opened in Culver's hall last night for
a week's engagement. A good house
house greeted their first performance.
All were well pleas > t with the play
and the management promts - a bet
ter bill tonight. The company has
nothing but high class artists in <t and
the pronounced hit which they have
made in other Montana towns prom
ises to be the order of the week in this

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