Larkin v. Upton

STATEMENT BY MR. JUSTICE BREWER.

Prior to March, 1882, plaintiffs in error, defendants below, filed their application in the United States land-office at Helena, Mont., for a patent to the Smelter lode claim. Defendants in error plaintiffs below, 'adversed,' claiming as owners of a conflicting location, called the 'Comanche Lode Claim,' and thereafter commenced this action in the district court of the second judicial district of the territory of Montana to determine the right of possession to the disputed territory,-an area, as alleged, of 7.79 acres. There were two trials in the district court, in each of which the verdict and judgment were in favor of the plaintiffs. The first judgment was reversed by the supreme court of the territory, and a new trial ordered. 5 Mont. 600, 6 Pac. Rep. 66. The second judgment was affirmed by that court, (7 Mont. 449, 17 Pac. Rep. 728,) which judgment of affirmance was brought by writ of error.

M. Kirkpatrick and W. M. Stewart, for plaintiffs in error.

M. F. Morris, S. S. Burdett, and W. W. Dixon, for defendants in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.