Old Missoula

In “Rugged Justice: The Ninth Circuit Court of Appeals and the American West, 1891 – 1941,” author David C. Frederick has noted that although the government prosecuted A. B. Hammond successfully for timber fraud in 1913, the court “reversed and remanded for a new trial”, and the case was settled for a paltry $7,000:

The greatest of the Montana copper and timber cases involved Andrew Hammond. One student of his life has written obliquely that Hammond’s “logging crews cut timber from land he had purchased from the railroad, but there is little doubt that his woodcutters also strayed onto adjacent federal lands.” In its largest suit in the Ninth Circuit, the United States attempted to establish that the “straying” of Hammond’s workers was part of a more nefarious scheme to defraud the common weal of 21,000,000 board feet of timber taken from public lands in Montana. At trial, the jury returned a verdict against Hammond, but only for one-quarter ($51,040) of the damages sought by the government. In the context of its general lack of success in pressing such actions in the West, however, this verdict represented a major victory for the federal government.[26]

In an opinion by Ross that District Judge Frank Rudkin joined, the Ninth Circuit reversed and remanded for a new trial. “[A]fter a very attentive examination of the record,” Ross ruled that the verdict could not stand. The district court had instructed the jury to find as a matter of law that, if the government prevailed, it should receive interest on the award. Because the government delayed filing suit for seventeen years, the accrued interest exceeded the value of the lumber as uncut timber. The court remanded the case for the jury to determine the propriety of such an award. In dissent, Gilbert objected to what he viewed as Ross’s heavy-handedness in devising an objection and then reversing on that ground. “It is not to be doubted,” he said, “that, if the precise objection had been pointed out and the authorities cited, the court below would have given appropriate instructions. Counsel at the conclusion of a trial ought not to be permitted to hold back an important point of objection to an instruction, and thereby mislead the trial court and secure a reversal on appeal.” After remand, the case apparently ended in settlement, the government accepting a modest $7,000 of the $211,854.10 it had originally sought from Hammond.[27]

The transcript of the Hammond appeal, first filed in 1914, is now available on the internet. Although one of the more recent studies, by Hammond scholar Gregory Gordon, deflates many of Mr. Hammond’s arguments with regard to the legality of his actions, the testimony presented below has a unique value from an historical perspective. Hammond initially presents a short biographical sketch that offers a view of his life as he looks back at his career at age 64. He explains the workings of his early career, and that of the Missoula Mercantile, in great detail and with surprising candor. Mr. Hammond may have looked at it as rare opportunity to preserve his legacy and no doubt appreciated the irony in that it could come about at the government’s expense.

Below is an excerpt of testimony from A. B. Hammond’s case, “Hammond vs. United States,” in which Mr. Hammond appealed the earlier verdict which found him guilty of timber depradation. For clarity it should be noted that Andrew was one of four brothers – George, the eldest, Fred, Andrew, and the youngest, Henry. Hammond’s uncle, Robert Coombs, ran various mill operations. In 1886 Henry Hammond was in charge of the Blackfoot Mill at Bonner. Brothers-in-law, Charles Beckwith and George Fenwick also played a part in Hammond activities. Bonita, Cramer Creek, Tyler Gulch, Wallace, and McCarty Bridge are all east of Missoula, starting at about Clinton.

(See Trial p 639 of Court Document)

A. B. HAMMOND, a witness called and sworn on
behalf of himself, testified as follows:

Direct Examination.
I reside in San Francisco ; I am the defendant in
this case ; I am sixty-four years old ; I have lived in
San Francisco since 1900; I have lived in the State
of California a portion of the time in 1888, 1889,
1890 and 1891. I first went to the State of Montana
in 1867, and to the town of Missoula in 1868—but I
went there to live in 1872. My first occupation when
I went to the town of Missoula to live was employment
by E. L. Bonner & Company. There was a
firm known as E. L. Bonner & Company at that time
in Missoula ; that was not the same firm of E. L. Bonner
& Company that afterwards had transactions
with the Northern Pacific Railroad Company. In
1872 Missoula had about four hundred inhabitants.
In 1876 I became a member of a firm known
as Eddy-Hammond & Company. That was a partnership
composed of E. L. Bonner, R. A. Eddy and
myself. That firm continued in business under that
name until August, 1885. There was no other person
interested in the firm of Eddy-Hammond & Company
at any time from its inception to August, 1885,
than those whom I have mentioned. During all of
those years the firm was engaged in a general merchandise
business. We dealt largely in horses and
cattle. As a firm we bought and sold horses at that
time. We hauled our goods and merchandise from
a town near Ogden on the Union Pacific into Missoula.
Concerning a barn or stable that has been
mentioned in the testimony, that barn was built in
the early ’80 ‘s, perhaps a little later. The relationship
this firm of Eddy-Hammond & Company bore
to the former firm of E. L. Bonner & Company was
this: Mr. Bonner and Mr. Eddy composed the firm
of E. L. Bonner & Company. They were members
of the copartnership of Eddy-Hammond & Company.
When the firm of Eddy-Hammond & Company
was formed, it took over the assets of the
former firm of E. L. Bonner & Company. The copartners
forming the firm of E. L. Bonner & Company
in Deer Lodge were E. L. Bonner and J. H.
Robertson, and at Butte the copartnership was E. L.
Bonner, J. H. Robertson and M. J. Connell ; the gentleman
last mentioned is the present Fish and Game
Commissioner of California. In Missoula the firm
of E. L. Bonner & Company was R. A. Eddy and E.
L. Bonner. I was not interested at any time in
either of the houses that I have mentioned, other
than at Missoula. My only interest was in Missoula.
I had clerked for E. L. Bonner & Company four
years before I became interested. The business of
Eddy-Hammond & Company was done almost entirely
on credit. The course of business
transacted by the firm of Eddy-Hammond & Company
during its existence in the matter of extending
credit was as follows : At the commencement of their
business, and in fact, during the existence of the copartnership,
their business was largely with the
farmers, with the miners and with the fur traders.
We had a large Indian trade, which extended as far
north as the British line ; we also had some dealings
with the small sawmills and flour-mills that were in
the country at that time. As I say, the business was
largely done on credit, and when we supplied customers
with goods, we generally had to finance them
and take care of them until such time as they could
sell their crops or their furs or until the stock raiser
could sell his cattle. We advanced them provisions
or we advanced them money. We advanced them
money to pay their taxes and paid their men. At
that time there were farmers in the vicinity who
were our customers; it was quite an agricultural
country. We had quite a large farming trade in the
Bitter Root Valley and in the matter of the payment
of men, this method extended to the farmers as well
as our other customers. The method by which credit
was extended, with reference to the form of the paying
out of goods or money, was as follows : We credited,
for instance, different farmers; if one farmer
was indebted to another and didn’t have the money
to pay him, he would frequently give an order on
Eddy-Hammond & Company to have his account
charged up to the party’s account who gave the
order. That was so general in that section of the
country that transactions of that kind came to be
known as Bitter Root turns. In a sense, one man
advanced money to pay another man’s debts. He
sometimes collected a bill from the farmer, but did
not get any money; it was charged up to another
farmer, to another customer. There were sawmills
in this country in the State of Montana in that
vicinity prior to the inception of the Northern
Pacific Railway; we had dealings with sawmills
at that time. We advanced them goods and we dealt
with the sawmills the same as we dealt with the
farmers and stockmen. In reference to the payment
of their men, they gave orders on our firm for the
payment of their men, which we accepted and paid
and charged up to them. At no time was the firm
of Eddy-Hammond & Company a dealer in lumber.
It did not buy or sell lumber at all. The firm of
Eddy-Hammond & Company sold out its business to
the Missoula Mercantile Company in August, 1885.
After its organization, the Missoula Mercantile Company
carried on business along the same lines that
Eddy-Hammond & Company had carried it on; it
extended credit to the farmers, stockmen, sawmill
men, contractors and builders of the railroad, traders
and miners ; it continued to do the same class of
business. In the matter of extending credit, both
for money paid out and for goods, wares and merchandise
purchased—we accepted orders from the
customers. In fact, it was necessary in that country,
at that time, when you undertook to carry a customer
that you had to furnish him money to pay his men
and to do his business until such time as he could raise
his crop or sell his product and pay his bills. There
was no difference in the method of extending credit
practiced by the Missoula Mercantile Company from
that practiced by its predecessor, Eddy-Hammond
& Company. The Missoula Mercantile Company
never dealt in lumber ; it never owned any sawmills,
nor did it ever own any stock in any corporation interested
in sawmills. I have testified as to a second
firm of E. L. Bonner & Company different from the
first that at Missoula was merged into the Eddy-
Hammond & Company. The second firm of E. L.
Bonner & Company was a copartnership
that was entered into in 1881 for the purpose of
contracting with the Northern Pacific to furnish it
with ties, piles and lumber and clearing the right of
way for about two hundred and eighty miles of the
road on the main line of the Northern Pacific. E. L.
Bonner, J. H. Robertson, R. A. Eddy and myself
were the members of that firm.
Q. I hand you a certified copy of a document issued
by the Department of the Interior (hands witness
document), and I ask you whether or not that is a
document having any relation to the copartnership
of E. L. Bonner & Company, the firm just designated
by you? A. Yes.

The COURT.—You are asking the witness now
about the second firm of E. L. Bonner & Company.

Mr. WHEELER.—The one that did the railroad
work.

(Witness Continuing:) That was organized before
the Missoula Mercantile Company, which was
organized in 1885, after the railroad was built.
Defendant thereupon offered in evidence the said
document, constituting the appointment of this firm
of E. L. Bonner & Company as agent for the Northern
Pacific in the selection of timber and cutting
there, which said document was marked Defendant’s
Exhibit **Q,” and is in the words and figures following,
to wit :

[Defendant’s Exhibit “Q”—Appointment of E. L.
Bonner & Co. as Agent of Northern Pacific,
etc.]
DEPARTMENT OF THE INTERIOR.
GENERAL LAND OFFICE.
Washington, D. C, September 29, 1887.
I, Wm. A. J. Sparks, Commissioner of the General
Land Office, do hereby certify that the annexed copy
of appointment of E. L. Bonner, J. H. Robertson, A.
B. Hammond and R. A. Eddy as agents of the Northern
Pacific Railroad Company, to procure timber
from the public lands for construction purposes,
dated New York, Sept. 23, 1881, is a true and literal
exemplification of said paper on file in this office.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused the seal of this office
to be affixed at the City of Washington, on the day
The United States of America.
and year above written.
[Seal] WM. A. J. SPARKS,
Commissioner of General Land Office.

E. L. Bonner, J. H. Robertson, A. B. Hammond and
R. A. Eddy:
You are hereby appointed agents of this Company
for the purpose of procuring and taking from the
public lands adjacent to the line of the Northern
Pacific Railroad, timber necessary for, and to be
used in, the construction of said railroad in the
western part of Montana Territory, under the direction
of the engineer in charge of the work of construction
and as required by him for such construction.
The right, power and authority of the Company to
take from the public lands, material for the construction
of its railroad, are granted by the charter of
the Company (Act of Congress of July 2nd, 1864);
nevertheless the circular of the Commissioners of
the General Land Office, dated July 15, 1881, specifying
the right of railroad companies, under the act of
March 3rd, 1875, except clauses numbered 6
and 7 thereof, will be regarded by this Company as
applicable to the exercise of the like right granted to
it by the charter. A copy of the circular referred to
is herewith enclosed; and you are required to comply
strictly with its provisions, except those contained
in the clauses numbered 6 and 7, as above mentioned.
Your appointment is subject to revocation, at any
time, and without notice.
You will acknowledge the receipt of this letter and
the enclosed “circular” to the engineer in charge of
the work.
Yours,
T. F. OAKES,
Vice-president.
New York, September 23, 1881.

CIRCULAR.
DEPARTMENT OF THE INTERIOR.
GENERAL LAND OFFICE.
Washington, D. C, July 15, 1881.
To Registers and Receivers United States Land
Office and to Special Agents of the General Land
Office:
Gentlemen: The first section of the Act of Congress
approved March 3rd, 1875, 18 Stats., 482,
granting to railroads the right of way through the
public lands of the United States, provides that any
railroad company organized as therein described,
shall have “the right to take from the public lands
adjacent to the line of said railroad, material, earth,
stone, and timber necessary for the construction of
said railroad.”

In determining the rights of the railroad companies
under the foregoing provision, you will be
governed by the following instructions:

1. Said provision refers exclusively to contemplated
or unconstructed roads. Companies have no
right to take timber or other material, under this
act, for repairs or other future improvements of
roads already constructed.
2. The right granted to any railroad company un-
der this act, to take material from the public lands
”adjacent to the line of said railroad,” is not restricted
to lands within any definite distance from
the line of the road, to the nearest or most convenient
points opposite the line of the road and
within the terminal points of the road.
3. It is not necessary that the required material
be taken at right angles with or opposite to the exact
points at which the work of construction is being
done, but said material may be taken from such
points as are nearest or most accessible to some part
of the road, measuring from the line of the road.
The same rule that would apply to the removal of
earth for use in the construction of a road is equally
applicable to the procurement for the same purpose
of the necessary stone or timber. Stone or timber
may therefore be taken from the public lands opposite
the line of the road within the termini thereof,
and carried forward and distributed as required in
the progress of construction.
4. The right under this act to take material from,
the public lands for the construction of railroads is
granted to railroad companies organized according
to the provisions of this act, and to no other parties.
Railroad companies have no power to give general
authority to the public to cut timber from
the public lands, nor has Congress ever given such
authority to the public.
Individuals controlled and directed by a railroad
company, or by the contractors of such company, for
building its roads and for whose act the company
is and can be held responsible, will be deemed the
agents of the company within the meaning of this
act.
But individuals cutting timber from the public
lands and selling the same to a railroad company at
an agreed price are not agents of the company. In
such a case the railroad company would have no
authority to direct the place where, or the manner in
which, the timber should be taken, nor any control
whatever over the individuals cutting the timber,
nor could it be held in any way responsible for the
conduct of such individuals.
Only those persons, therefore, who are the direct,
duly authorized agents of a proper railroad company
can represent the company in the exercise of the
rights granted to such company under this act.
Persons who merely contract to cut and deliver to a
railroad company ties or other timber at certain
rates per tie or quantity, and for whose acts the company
is not responsible, have no authority to take
the timber from the public lands even for delivery
to a railroad company authorized to take such timber
by its proper agents. Such unauthorized persons
will be deemed trespassers on the public lands
and must be proceeded against accordingly.
5. Each right of way railroad company must
arrange for procuring the material authorized to be
taken in such manner that it may be held responsible
for any unlawful taking of materials or waste of
public property.
6. In all instances wherein a railroad company
desires to take large quantities of earth, stone, or
timber, under the provisions of this act, from any
one particular spot or vicinity, the proper officer
or duly authorized representative of said company
must make application in writing to the Commissioner
of the General Land Office, through the
Register and Receiver of the proper land district,
specifying, under oath, the kind of material required:
the purpose for which it is desired; the probable
amount or quantity needed and designating the
public lands from which the material is to be taken,
describing the lands, if surveyed, by section, township
and range, or if unsurveyed, indicating their
localities by reference to some well known point.
7. The Register and Receiver will transmit such
application to this office in special letter, with their
report thereon, for appropriate action.
8. The lands from which material is authorized
to be taken under the act, are the vacant, unoccupied
public lands of the United States, not reserved or
otherwise appropriated.
N. C. McFARLAND.
Commissioner.
Approved July 19, 1881.
S. J. KIRKWOOB.
Secretary.

(Witness Continuing:) This appointment was
never revoked. The J. H. Robertson named in said
document. Defendant’s Exhibit “Q,” is the J. H.
Robertson that I have testified to, was a partner in
the new firm of E. L. Bonner & Company, and Mr.
Eddy and Mr. Bonner are the same Mr. Eddy and
Mr. Bonner who were partners in Eddy-Hammond
& Company. Mr. Robertson never had any interest
at any time in the firm of Eddy-Hammond &
Company. The Northern Pacific was under construction
in this particular country in 1881 and late
in 1880 the road was joined together, but was not
completed until along in 1885. By “not completed”
I mean the bridges were temporary. The construction
was joined together and they ran trains over
it in 1883. The Northern Pacific at that time was
apprehensive of losing its land grant and it had to
push through and get the road completed, and they
did the work as fast as they could, in order to hold
the grant. It was what might be called temporarily
complete in 1883 and more permanently complete
in 1885. Concerning the construction of temporary
bridges by the Northern Pacific Railroad –
the railroad engineers knew but little about that section
of the country through which the road was being
built. For instance, when they came to a gulch
where there was a large watershed, they did not
know what the volume of water would be that would
collect and run down there when the snow melted
in the spring ; and instead of filling it up with earth,
they went across the low places with piles, intending
later on, as the situation developed to fill them in
with work trains when they could tell how large
an opening they would have to leave to let the
water run into the river. After the firm of E.
L. Bonner & Company undertook this contract,
the first timber located adjacent to the right
of way coming from the east that was of any conse-
quence, was at McCarty’s Bridge, about eight or
ten miles, probably eight miles, east of Bonita.
Tyler’s Gulch is near by to McCarty’s Bridge, and
that is where the first timber is encountered coming
from the east. Going west, the road ran out of the
timber at Bonner. In this particular section, the
firm of E. L. Bonner & Company, under contract,
supplied, for the use of the Northern Pacific Railroad
Company in construction along the line, under
one order, 5,000 piles. We had additional orders
afterwards, and I would say that we have gotten
out at least twenty thousand piles in that section.
These piles that we got were taken adjacent—as
near the line of the road as we could get them, where
we could get them the cheapest. They were all taken
along the line of the Hellgate between the town of
Bonner and Tyler’s Gulch. A great many were
taken around Bonita. At Wallace, west of Bonita,
there was a sawmill, and at Turah there was a sawmill.
At other places they wanted lumber for bridge
timbers and consequently they contracted for piling
where we had no mills—where we were not operating
any mills. We took piling along the Hellgate River
from the flats between what was afterwards the
Bonita Mill and Tyler Gulch. We took it from the
flats first. Wherever the flat country was timbered,
we took piling because it was nearest to the line of
the railroad, and as a rule, the railroad followed the
bottom. This piling was peeled in some cases and
in other cases it was not peeled. As to whether
or not where a mere stump was left after the taking
of the piling, the appearance of the stump was any
different from that of the appearance of a stump
that had been cut for a sawlog—our pile
specifications were for not less than 10 inches at
the tip and not more than 20 inches at the butt. Our
piles were gotten out from thirty to sixty feet long
and in some instances longer. Now, a tree of that
kind would make a good many sawlogs if sawed up.
The stump would not look any different from a
tree cut for a sawlog. I knew of a mill called the
Haycock Mill [emphasis added]. I know that in the vicinity of that
mill, up and down the Hellgate River, logs were
sawed for bridge timbers at that mill and utilized
in the construction of the railroad. I know of my
own knowledge that piling was taken from the lands
along the Hellgate, both east and west of Bonita
Station and moved to points east and west beyond
the right of way which we had the contract to clear.
Our contract was that we were to furnish the lumber
and piles and ties anywhere along the right of
way, wherever it could be delivered most conveniently.
I was at a place called Wallace. In the first
instance a man by the name of Katchin owned mills
there. [emphasis added] At the Katchin Mills lumber was sawed and
was used as bridge timbers by the Northern Pacific
Railroad in the construction of the road—that was
the principal place of supply. Practically all of the
roundhouse, depot and section-house timbers were
furnished from that particular mill. I recall a
corporation called the Montana Improvement Company.
It was incorporated in 1882. The railroad
business of E. L. Bonner & Company was taken over
by the Montana Improvement Company. The principal
office of the Montana Improvement Company
was at Deer Lodge. E. L. Bonner was the president
of that corporation. As to the stockholders of that
corporation—the Northern Pacific owned fifty-one
per cent; a man by the name of George Conklln—
$250,000—he had twenty-five hundred
shares. My proportionate interest in the Montana
Improvement Company was about one-fifteenth of
that corporation. That corporation acquired the
Wallace Mills; it also acquired the mill known as
the Thompson or Allen Mill, [emphasis added] which was subsequently
set up at Bonita. The persons I have named as
stockholders of the Montana Improvement Company
remained stockholders during the existence of the
corporation after the Northern Pacific acquired its
interest in the corporation—there were slight
changes, if any. During all the time that I was a
stockholder of the corporation, the interest of the
Northern Pacific Company therein did not change.
The Montana Improvement Company owned lumber
yards. They had a yard at Butte, a yard at Helena
and a yard at Deer Lodge. That corporation commenced
the construction of a dam on the Blackfoot
River in the winter of 1884. The dam was not completed;
it went out in the flood of 1885—in the
spring. The remnant of the Company’s dam on the
Blackfoot was sold to W. H. Hammond. This
Thompson Mill that I have spoken of was sold to
Fred A. Hammond. The Montana Improvement
Company erected that mill at Bonita. It sold the
the mill to Fred Hammond and agreed to erect it at
Bonita and set it up for him—sold it and set it up
for so much [emphasis added]. Mr. E. L. Bonner at the time of the
incorporation of the Montana Improvement Company
resided at Deer Lodge—the headquarters of
this corporation. He continued to reside there for
a number of years, but during the building of the
Northern Pacific Railroad he spent a great deal of
his time in Missoula, and shortly after its completion
he decided to move to Missoula and did build
a house and move there. Mr. E. L. Bonner was
at all times president of the Montana Improvement
Company. When Mr. Bonner moved from Deer
Lodge to Missoula, the principal place of
business or office of the Montana Improvement Company
was moved to Missoula. The office was moved
to Missoula in the fall of 1885. The Montana Improvement
Company operated the Wallace Mill. It
operated that mill from the fall of ’84 until some
time in 1885. I don’t think it cut sawlogs after the
summer of ’85. It did no cutting after that time.
The Montana Improvement Company had a shingle
mill at Noxon, which place is probably one hundred
miles west of Missoula. The product of the shingle
mill—the shingles—were used for the section-houses
and roundhouses. It was a small mill that cut cedar
shingles. The Montana Improvement Company
never operated the mill at Bonita. It never operated
any mill up the Blackfoot. The Montana Improvement
Company went into active business in
1884 and went out of active business in 1885. While
it was incorporated in 1882, it did not start active
business until after the railroad was completed.
It ceased operations in 1885 and in July, I think it
was, 1885, there was a meeting of the directors at
Deer Lodge and they decided to go out of business.
When the Montana Improvement Company ceased
active business, in reference to its properties and
plants, it decided to go out of business and sold
them. Decided to sell the property and liquidate
the business. One of the mills at Wallace was sold
and moved away. The other continued to operate
there until, I think, a few months later, perhaps in
the spring of 1886, was disposed of or moved away.
The shingle mill was burned down. The different
lumber yards that I have mentioned were sold. The
Helena Lumber Yard was sold to B. H. Coombs.
After Coombs purchased the Helena lumber yard,
he ran it a while under his name and then incorporated
it under the name of the Helena Lumber
Company. I never had any shares of stock
in the Helena Lumber Company, nor had I any interest
with Mr. Coombs in the Helena Lmnber Company.
The lumber yard was sold to Coombs in 1885.
I could not say when the Helena Lumber Yard was
incorporated, but perhaps it was a year or two after
it was sold to Coombs. The Montana Improvement
Company had absolutely no interest in any of the
lumber yards which it had owned prior to the sale
that I have spoken of or in any one of the mills that
I have mentioned in my testimony after their sale
or other disposition that I have testified to. They
decided to go out of business and liquidate. The Missoula
Mercantile company did not acquire, either directly
or indirectly, any interest at any time in the
Bonita Mill, the mill constructed on section 14—in
the Hellgate; nor did it any time, either directly or
indirectly, acquire any interest in the Blackfoot
Mill or property or dam, or any of that property
on the Blackfoot, which I have testified the Montana
Improvement Company sold to Henry Hammond.
Mr. Bonner and Mr. Eddy conducted the negotiations
for the sale of that property on the Blackfoot to Henry
Hammond, I did not participate in any of these negotiations.
I declined to participate. I did not participate
in the negotiations that led to the sale of the
mill at Bonita to Fred Hammond. The same parties
—Mr. Bonner and Mr. Eddy conducted those negotiations.
I knew that they were negotiating with
Fred A. Hammond, but I declined to participate in
the negotiations. I heard or learned of the sale of
the Bonita Mill by Fred A. Hammond to George
W. Fenwick. I did not participate in the negotiations
that led to the sale by Fred A. Hammond to
George W. Fenwick of the Bonita Mill. I have a
very slight recollection on the subject that has been
testified to to the effect that Mr. Hathaway
went out and made an inventory of the matter of
that transfer or concerning Mr. Hathaway ‘s testimony
that he believed I sent him there. My recollection
is that Fred A. Hammond and Mr. Fenwick
had negotiated and they came to an under-
standing by which the mill would be sold by Fred
Hammond to Mr. Fenwick, and that they had agreed
on Mr. Hathaway to take the inventory for them
and assist them. I have no recollection of sending
Hathaway there or telling him to go there or anything
of that kind. If he had requested me to do
so, I might have—whether I so did or did not, I do
not recollect. I did not have, either directly or indirectly,
any interest in the Bonner Mill at the
time that same was acquired by Henry Hammond. I
did not have any interest, either directly or indirectly,
at the time that the Bonita Mill was acquired
by Fred Hammond, any more than the interest—the
interest I represented in the Montana Improvement
Company and the interest I had in the sale of the
mill to Fred A. Hammond. Beyond that, I did not
acquire any interest of any kind by reason of that
transaction. When Fred A. Hammond sold to
George W. Fenwick, I did not, either directly or
indirectly, acquire any interest in the mill, business,
or property that G. W. Fenwick thus acquired. I
did not ever individually at any time own any interest
in either the Blackfoot property or in the Bonita
property with Henry Hammond or Fred A.
Hammond or George W. Fenwick. I did not ever
share in or participate in the profits of either the
Blackfoot or the Hellgate property while the same
were being operated by Fred A. Hammond, George
W. Fenwick or Henry Hammond, prior to the organization
of the Blackfoot Milling and Manufacturing
Company. I did not at any time ever par-
ticipate in any of the profits of the Bonita Mill or
property while the same was being operated
by George W. Fenwick or Fred A. Hammond,
or at any other time.

(p 658)

The Missoula Mercantile Company was never at
any time interested in either of those companies or
in the profits derived from the conduct of the business
there. The Blackfoot Milling and Manufacturing
Company was never at any time interested in the
business of the Bonita Mill, either while owned by
Fred A. Hammond or George W. Fenwick, or at any
other time. The Big Blackfoot Milling Company
was never at any time interested in the property or
profits of said mill under said management, or at any
other time. As to my occupation and place of business
from the year 1885 to and including the year
1895—in 1885 and 1886 I became associated with
some gentlemen in a syndicate having for its object
the building of railroads, that would act as branch
lines or feeders to the Northern Pacific. We built
the Bitter Root Railroad, running from Missoula to
Grantsdale, about fifty miles. We built from Phillipsburg
to Drummond a railroad running from
Drummond to Phillipsburg. We built a road from
Helena to Remini and to Marysville ; we also built a
road from Laurel to Rocky Ford, in Montana. I
had a four-ninths interest in the contract that built
the railroad from Laurel to Butte, a distance of
seventy-one miles. I stated that we built a road
from Laurel to Rocky Ford. We built a road into
the Rocky Ford country. I forget the name of the
place we started from, but it was not Laurel. This
was all between 1885 and the summer of 1889. In
1894, 1 went to Oregon and bought the Oregon Pacific
—reconstructed it. I was in Oregon from 1894 until
I came to California to reside permanently. In
1894 I commenced building the Astoria and Columbia
River Railroad. As to my principal absences
from the State of Montana during the period of
1885 to 1896—I was in California during the
winter of 1888, 1889, also 1890 and in the summer
of 1891. Sometime in the summer I moved to Oakland,
and lived on Jackson Street, until 1892. I was
in Europe for seven months in 1892. My absences
in California in the winters I have mentioned comprised
about three months in 1888 and a longer
period in 1889 and 1890. While I was in Montana
engaged in railroad construction, I lived in Missoula
until 1888 [emphasis added]. The headquarters of our railroad operations
were in Helena ; during the years that I named,
my business took me to Helena frequently. I had
a real estate business in Helena, put up some buildings,
but Helena was the headquarters of these syndicates
that I have spoken of that built these railroads.
In reference to the construction of these
railroads in Montana and the time I spent away from
Missoula in connection with them, I think probably
a half or a third of the time I was absent from Missoula.
Concerning the Blackfoot operations, I remember
the organizing of the Blackfoot Milling and
Manufacturing Company. I remember a transaction
that it had with Henry Hammond with regard
to property on the Blackfoot, I was a stockholder
practically from the inception of the Blackfoot Milling
and Manufacturing Company. It itself never
operated any mill upon the Blackfoot River. It acquired
the plant at Bonner that had previously been
operated by Henry Hammond. It was incorporated
for that purpose, and acquired that property practically
immediately on its organization. After it
acquired the property, it never operated on the
Blackfoot itself. The corporation had other milling
business than the business on the Blackfoot. It had
three or four small portable mills along the line of
the Bitter Root Railroad that were put in at the time
of the construction of the road for the purpose of
sawing lumber and to build the same. The Blackfoot
Milling and Manufacturing Company
operated these mills in the Bitter Root for a period
of time between the time of its incorporation and the
sale of the Blackfoot property to the Big Blackfoot
Milling Company. The Bitter Root Railroad was
completed in 1888, and sometime after that and after
the Blackfoot Milling and Manufacturing Company
was organized, these little mills were sold by the syndicate
that built the Bitter Root Railroad to the
Blackfoot Milling and Manufacturing Company.
That company operated them until such time as they
cut out the settings. By a setting, I mean a small
amount of timber. Timber grew upon the lands that
had been taken up by the settlers and patented in the
Bitter Root Valley. They were small settings. By
a setting I mean a small quantity of timber—per-
haps a million or a million and a half feet. It is the
immediate vicinity around the present locality of one
of those portable mills. After these small portable
mills came into the ownership of the Blackfoot Milling
and Manufacturing Company, it sold the lumber
wherever they found a market. Some of it went to
the Helena Lumber yard. I think my ownership of
stock in the Blackfoot Milling and Manufacturing
Company was about twenty per cent. I never
owned, either directly or indirectly, any other stock
at any time in the Blackfoot Milling and Manufacturing
Company than such stock as was in my name,
which I actually owned. That is represented by this
twenty per cent, or thereabouts, to which I have referred.
When the Blackfoot Milling and Manufacturing
Company was operating these mills in the
Bitter Root, the mill property owned by the same
corporation in the Blackfoot that was leased to W.
H. Hammond, was operated by him and while that
mill was so operated by W. H. Hammond, I did not,
either directly or indirectly, participate in the
profits of its operation, nor did any of the
corporations in which I was a stockholder, either
directly or indirectly, participate in the profits of
that operation. I remember the organizing of the
Big Blackfoot Milling Company. It succeeded to
the property owned by the Blackfoot Milling and
Manufacturing Company. The Blackfoot Mill
property was never run by the Blackfoot Milling
and Manufacturing Company. After the Big Blackfoot
Milling Company was incorporated, it took over
the property of the Blackfoot Milling and Manufacturing
Company, and they then proceeded to operate
on the Blackfoot. I think that was in 1891. During
the period of time ending with the year 1895, the
greatest extent of my holdings of stock in the Big
Blackfoot Milling Company was about the same as
the stock that I held in the Blackfoot Milling and
Manufacturing Company, that is to say, about twenty
per cent. I don’t think I increased my holdings of
stock in the Big Blackfoot Milling Company beyond
that twenty per cent, or thereabouts, during the
period of time ending with the year 1895. I may
have increased my holdings. Those things happened
a long time ago. I have no recollection of increasing
my holdings. I did not buy any large block of stock
at that time, in those years. Twenty per cent was
approximately what I owned, directly or indirectly,
during those years. The names of the stockholders
as nearly as I can recollect them, in the Big Blackfoot
Milling Company, during the period of its existence
and ending with the final disposition of the
stock, here testified to, to the Anaconda people, as
they are called in this record, in addition to myself,
were E. L. Bonner, R. A. Eddy, W. H. Hammond,
C. H. McLeod, J. M. Keith, Thomas C. Marshall, T.
G. Hathaway, Sr., and T. C Hathaway, Jr. I do
not think there was any great change in the
stockholders between 1895 and 1898. G. W. Fenwick,
Mrs. Fenwick, and George L. Hammond were
also stockholders. I think I have named from memory
about all the stockholders there were. I think
there was one—a man by the name of Scharnakow,
that had some stock. I think that was about all.
Directing my attention, as you are, to the list of
stockholders in the Missoula Mercantile Company–
October 24, 1891 to October 27, 1898, heretofore read
in evidence – E. L. Bonner, a stockholder in the Missoula
Mercantile Company, was a stockholder in the
Big Blackfoot Milling Company; so was R A. Eddy;
E. M. Eddy was not. I have already testified about
myself. C. H. McLeod was an owner of stock in the
Big Blackfoot Milling Company ; so was J. M. Keith
and T. G. Hathaway; but H. T. Van Wort; F. T.
Stirling; W. A. Mentrum; T. B. Thompson; H. C.
Keith; J. P. Mannard; J. M. Price; T. T. McLeod;
C. A. Barnes; D. H. Ross; T. Hosey; W. S Settle;
E. W. Jones; J. F. Dorman; J. B. Jenkins; T. E.
Bassler; G. W. Dorrity; C. L. McLeod and W. H.
Allison, while stockholders in the Missoula Mercantile
Company were not stockholders in the Big Blackfoot
Milling Company. G. Moser was secretary of
the Big Blackfoot Milling Company, but I don’t
think he was a stockholder. Scharnakow appears to
have had one share of stock in the Missoula Mercantile
Company, and he became a stockholder in the
Big Blackfoot Milling Company a few months before
it sold out [emphasis added]. C. S. Bonner, L. J. Bonner and B. A.
Bonner, while appearing as stockholders in the Missoula
Mercantile Company were not stockholders in
the Big Blackfoot Milling Company. I know about
the Big Blackfoot Milling Company at one time having
owned twenty-two shares of stock in the Missoula
Mercantile Company. They acquired that stock
from W. H. Hammond, and I know how
W. H. Hammond acquired that twenty-two shares of
stock. The circumstances were as follows: D. H.
Ross ran a lumber yard and he got in debt [emphasis added]; he bought
his lumber from W. H. Hammond and got in debt
to him; later on W. H. Hammond bought him out
and took some land that Ross had on the Blackfoot
and shares of stock in the Missoula Mercantile Company,
in payment, and ran the business, though under
the name of Ross, until such time as the Big Blackfoot
Milling Company commenced to operate actively,
and then the Blackfoot Milling Company took
over the lumber yard at Missoula and W. H. Hammond
turned in the shares of stock that he had got
from Ross to the Big Blackfoot Milling Company
and they paid for them. I mean that the Big Blackfoot
Milling Company bought the lumber yard from
W. H. Hammond ; it did not have any interest in that,
property before the time it purchased it from W. H.
Hammond. I had no interest in the D. H. Ross &
Company lumber yard [emphasis added]. W. H. Hammond did not at
any time hold any interest in that yard for me, nor
did either of the members of the firm of D. H. Ross.
& Company at any time hold any interest in that for
me. I was first upon the Blackfoot River after the
purchase of the remnants of the dam by W. H. Hammond,
in the spring of 1886. I went up there to see the
log drive—about twelve or fifteen miles from.
Bonner. At the time I went to see that log drive, I
had no interest in those logs or the log drive—no
pecuniary interest of any sort. The occasion of my
going there was through curiosity. I had not seen
a log drive since I had driven on the Penobscot, when
I was a boy. I wanted to see the operation. George
L. Hammond was in charge of that drive at that
time. As to where W. H. Hammond was at that
time—his headquarters were at Bonner—he may
have been with me. I don’t really recollect whether
he made that trip up there with me or not. George
L. Hammond was my brother, and he was
foreman of the drive and had charge of it. In addition
to his occupation as foreman of the drive, he was
a farmer and stock-grower in the Blackfoot country
and he also was in charge of the logging operations
for W. H. Hammond [emphasis added]. He had a farm on Elk Creek
and one at Ovando. I never had any interest in the
farm of George L. Hammond, or in his business.
He was seven years older than I. He came to Montana
in 1867, the same year that I came. We came
together. On this occasion on the Blackfoot, I did
not, nor did I on any other occasion, ever say to my
brother, George L. Hammond, that if any more men
went down, he would go down, too. I have seen a
man named Patrick Joyce. He is a saloon-keeper.
I don’t know where his saloon is now, but he had one
at Cannas Prairie. Ever since I knew him, he was
in the saloon business. I never, in the presence of
Patrick Joyce, on any occasion on the Blackfoot, or
elsewhere, say to my older brother, George Hammond,
that the next man that went down, he would
go down, too. No such conversation ever took place.
I never attended another drive on the Blackfoot. At
the time I attended the drive on the Blackfoot, I had
no interest of any character in any of the operations
that were being extended in the Blackfoot. At that
time George L. Hammond was neither directly nor
indirectly in my employ in any capacity. The next
time I was on the Blackfoot after the log drive of
1886, was on a hunting and fishing expedition in the
year 1888, I think. It was the second time I was up
there. The only time I was up there until last summer,
that is twice in all. I never at any time gave
any orders or directions to any of the men with regard
to the operation on the Blackfoot to any person.
With regard to the work in the Hellgate Canyon,
when we cleared the right of way, we cut
up lots of stuff that we made into cord-wood. In a
general way, I know that during the construction of
the Northern Pacific, all of their trains were using
cord-wood, which was cut up by our people in clearing
the right of way and for a number of years afterwards
until 1888. A majority of their trains were
using cord-wood for fuel. I have seen men who were
not employed by myself cutting cord-wood in the
Hellgate Canyon other than in clearing off the right
of way in this same district between McCarty’s
Bridge and Bonita. As to the kind and character
of trees that were cut for cord-wood, they cut the
trees that were handy to the road first, and the trees
that would split easy and as good timber as they
could find. Much of the timber so cut for cord-wood
was good logging timber. I knew a boy named Felix
Cyr. I knew Dumas, his father. I first knew him
down East.

(p-667)

Q. It appears from the testimony of Felix Cyr,
when he was a boy fifteen years old, you saw him at
Bonita driving a team and you said to him: “Where
is your dad?” and he said “He is over home,” and
you said “You better go back and tell him to drive
his own team, you are too small. ” Do you remember
any such conversation ?
A. No, sir, I do not, but it may have occurred; I
knew Dumas Cyr and his family and I may have
made use of such an expression as a pleasantry. I
have no recollection of it.
(Witness Continuing;) I never gave any orders
to any persons about any transaction in connection
with the logging operations at the Bonita Mill. I
did not have anything to do personally with the construction
of the Bonita Mill on section 14′, on the land
here in controversy. Mr. Eddy superintended
the construction of that mill upon that
ground. At that time Mr. Eddy was acting for the
Montana Improvement Company, carrying out his
agreement with Fred A. Hammond, as to which
agreement I have already testified. While that mill
was in process of construction, I was upon that mill
site at Bonita once, that I recollect. I was there at
the mill site before the mill was moved there. I
looked at the site. I was there a short time. I think
I was on a work train and I stopped off there for a
short time, perhaps half an hour or an hour. At that
time I gave no orders or directions to any person
with regard to the construction of that mill. As to
when I was next on the Hellgate, the property here
involved, I may have been at the Bonita Mill after
Mr. Fenwick owned it once or twice. But I was
never on the timber land. By the timber land, I
mean the land that is reported to have been cut over.
Before the Montana Improvement Company began
the construction of the mill under the contract I have
referred to, I had known that there were mines in
operation at Wallace and there were mines there in
operation at Bearmouth. I knew of men working in
the mines in Wallace. It was quite a mining district
there over near Wallace. Bearmouth was a
large mining section and there were a great many
mines at Bearmouth,—rather up Bear Gulch—seven
or eight miles up the gulch, they ran quite a distance.
I should judge the mines at Bear Gulch would be
about ten or twelve miles east of Bonita. I built the
railroad through the Hellgate and cleared the right
of way and lived in that vicinity since 1872. I had
been over the road in that Hellgate Canyon from
Bearmouth to Wallace, and in the course of those
years, a great many times—on the railroad and the
wagon road, before the road was built. While we
had the contract for the clearing of the
right of way, a part of the time I was on the ground.
I was familiar with the Hellgate Canyon and the
mines in that vicinity I have testified to. My belief
as to the character of the lands along the Hellgate
Canyon with reference to their being mineral or nonmineral
between the station of Bonita or the Bonita
Mill on the west and Tyler Gulch upon the east, was
that they were mineral lands.

Q. The witness, W. A. Cook, made deposition in
which he said:

“I was there at one time when Mr. Hammond had
a fuss with George Ritz ; he had a contract logging [emphasis added];
they almost came to blows in Bonita.
“Q. We will finish that out—when was that, what
year was that ?
“A. That was before they put the mill there; this
man Ritz logged about a year before the mill was
moved there and banked them on the river above by
the Wills place.”

On cross-examination the same witness said in response
to the following question:
“Q. What was this fuss between A. B. Hammond
and Ritz ?
”A. Ritz, it seems, had taken a contract from Mr.
Hammond to cut logs; and he afterwards sold the
logs to A. C. Kise & Company, and was going to
drive them down some place down Rock Creek [emphasis added], and
Hammond wanted the logs and he afterwards got
them. Kise didn’t use them at all; Hammond got
them from Ritz afterwards, and he logged for two or
three years after that.”
I will ask you if you knew of a mill run by A. C.
Kise & Company at Rock Creek?
A. I knew that there was such a mill there.
(Witness Continuing 🙂 Rock Creek is three miles
from Bonita, down stream—towards Wallace. I
did not know a contractor who spelled his name
R-i-t-z, which is the way it is spelled in the deposition.
I knew a man named Rich. I have no recollection
of having any such controversy as is mentioned
in Mr. Cook’s testimony with a man named
Rich. I never knew of any man by the name of Ritz,
I knew a man by the name of Rich and he had an
account at the Missoula Mercantile Company’s store.
He had a tie contract and pile contract [emphasis added] from E. L.
Bonner & Company and during that time that he had
those contracts he was furnished with goods by E. L.
Bonner & Company. He had the tie and piling contracts
during the construction of the Northern Pacific
Railroad. I never at any time had any controversy
with him over a contract for the cutting of saw
logs. I never had any trouble with a man named
Rich with regard to any logs or timber that he had
cut or piling that he had cut. I do not remember
any question arising upon the subject at all at any
time between me and Rich or Ritz in 1884. I do not
understand how that could be. There was no mill
that those logs could go to. The Wallace Mill was
not a mill to which logs could be floated. It was not
on the river. It was quite a long distance from the
river and logs could not be floated down to the Wallace
Mill.
Q. Did you ever have any difficulties at any time
with a man named Rich or Ritz concerning the use
that he made of logs that he had cut, while he had an
account with the Missoula Mercantile Company or
piles that he had cut before for Eddy-
Hammond & Company?
A. Well, Rich had a contract for piles which he
did not furnish. At different times Eddy-Ham-
mond & Company made efforts to try and get our
money for these piles that he was supposed to deliver
and did not deliver. I have no recollection of any
controversy with him at the time referred to.

(Witness Continuing:) I did not have any controversy
with him at any time about any logs for the
Bonita Mill.
Q. You do recollect a controversy with him about
some piling, or a matter with regard to collecting
from him on a bill that he owed to the Missoula Mercantile
Company at a time when he was under contract
to furnish piling for E. L. Bonner & Company*?
A. It was the bill of Eddy-Hammond & Company.
We were in business in 1884 then, not the Missoula
Mercantile Company. This, I understand, was supposed
to have taken place in 1884. That is the year
before the Bonita Mill went in.

(Witness Continuing:) During the course of the
construction of the siding for the Bonita Mill, I do
not think I was there upon more than the one occasion
that I have testified to. I have no recollection
of being there but once. I do not know a man named
Thomas Van Keuren. I know of his evidence, but
I have no recollection of the man.
Q. Thomas van Keuren testified in substance:
“Hathaway took me to office of company in Missoula
and introduced me to A. B. Hammond. He
asked me first what I worked at. Told him was ox
teamster. A. B. Hammond wanted me to go
to work at Wallace. I asked what he was paying. He
told me. He gave me a letter to go to work, to take to
Mr. Henry Hammond. Henry Hammond, it seems,
was the ‘push’ there. I went up there and Henry
Hammond told me they were full handed there. He
told me to go to Bonita.”
Do you remember ever having sent Van Keuren to
Henry Hammond at Wallace ?
A. I don’t know. I may have sent him. I sent
Henry Hammonnd while he was at Wallace logging
a good many men. Whenever he wanted men he
would telephone down and either I attended to it or
somebody else.
(Witness Continuing:) Concerning what has been
said in this case about the employment of men and
the sending of men to different places for employment,
a good many of the mills were situated at
places where there were no postoffices and at some of
them there were no stations. When they wanted
men they would send down to Missoula, send word,
and we would send them up. That applied to farmers,
and stockmen, as well as lumbermen. A farmer
came in from the country who had a ranch fifteen
or twenty miles away, and he wanted a teamster, or
a man who could run a threshing machine or a mowing-
machine, or a self-binder, or a man who could
milk cows, and he was very apt to leave word with
us if such a man came to Missoula that wanted such
a job to send him up to him. The Eddy-Hammond
& Company and the Missoula Mercantile Company
did a lot of that business. That applies also to
graders and it applied to my work in the building
of the Bitter Root road—my sub-contractors as well,
and I furnished them with men and I sent to Utah
and brought men out from that country for graders.
We had little mills on the Bitter Root road and we
had to have lumbermen to run them and we
combined with other people who had mills and sent
east and elsewhere to get lumbermen. When those
men came to the country they came to Missoula, and
if they were connected with the people that we sent
to bring them there, why, we found out and we knew
where we wanted men and we told them where to
go. I remember the occasion of Mr. Hathaway ‘s
going East. I think he went East twice. I would
not be sure. The circumstances connected with Mr.
Hathaway ‘s going East were these: We wanted lumbermen
and others wanted lumbermen. I wanted
lumbermen in the Bitter Root Valley and W. H.
Hammond was short of men and Mr. Fenwick was
short of men and Mr. Greenough and I think Haycock,
and he was sent to Minneapolis and the expense
of sending him there was borne pro rata by the parties
who got the men. [emphasis added]
Q. The same witness, Van Keuren, testified to the
effect:
“I got two horses through Mr. Hammond in Missoula,
bought one direct from A. B. Hammond and
Mr. Hammond got me the other one.”
“Q. I think that you testified that you bought one
or two horses from Mr. A. B. Hammond, did you
not?
”A. Yes, I did.
Q. Was it one or two ?
”A. Two horses.
”Q. Now, how did you pay for those horses?
”A. With those logs that I cut for them at $4.00
a thousand.
“Q. In other words, in your account with the Missoula
Mercantile Company you were charged with
the price of those two horses, isn’t that the idea?
“A. I was charged with the price of those two
horses.
“Q. And when you came to settle up with the Missoula
Mercantile Company you were paid just that
much less ; that is to say, the price of those two horses
from what was coming to you ?
“A. Yes, and less the supplies that I had.”
Do you remember the specific occurrence with Van
Keuren ?
A. No, I do not. I did not go into the details of
the business to that extent at that time, but the Missoula
Mercantile Company dealt in horses, bought
and sold horses [emphasis added]. It may have sold them to Van
Keuren, as it did to anyone else.
(Witness Continuing:) If Van Keuren had something
coming to him on account of his contract for
furnishing logs to Mr. Fenwick or to Mr. Fred Hammond
and Van Keuren had purchased supplies from
the Missoula Mercantile Company, the course of dealings
under conditions of that kind at the Missoula
Mercantile Company’s establishment, would be, I
suppose, that Van Keuren would be charged up with
whatever he got, and when he got paid by Mr. Fen-
wick for his logs, Fenwick would probably give him
an order on us and when he came down to get his
money, the Missoula Mercantile Company would
deduct the amount of his bill and pay him the money,
the balance, if he had any ; and if the Missoula Mercantile
Company had sold him some horses, they
would deduct the amount of the horses, the same as
they would for merchandise or anything else.
Neither the Missoula Mercantile Company, nor myself
individually, nor the Montana Improvement
Company ever purchased any logs from the said Van
Keuren. I have seen a man named John Cunningham.

Q. John Cunningham in his deposition testified as
follows:
“We told him that Hathaway sent us out, and
asked him which way we would go, so he told us to
go up the Blackfoot River, and he said he wanted
to send a team up, so we took the horses along.
“Q. That was all he said?
“A. Yes, sir.
“Q. When you got up there, who put you to work ?
“A. George Hammond.
“Q. Did he tell you what your wages were going
to be?
“A. He never set no wages; Hathaway set our
wages, $35.00 a month.
“Q. Mr. A. B. Hammond did not make any arrangement
with you about that?
“A. No, sir, never mentioned wages.
“Q. He never mentioned employment at all, ex-
cept he told you how to go up the Blackfoot River ?
”A. Yes, sir.”
Do you remember ever having any such conversation
as that with John Cunningham?
A. No, I don’t remember any such conversation.

(Witness Continuing:) Such a conversation may
have taken place. If he came in and said he was a
woodsman, we would know where such men were
most in demand. I have no recollection of having
any occasion to send teams up the Blackfoot River
at any time. Teams were sent up from Wallace
generally. In those days there was no wagon road
up the Blackfoot [emphasis added]. They went around by Wallace.
There was a trail up the Blackfoot. I knew William
Harley.
Q. He testified: ”A. B. Hammond recommended
me as a logger to Fenwick. Met A. B. Hammond
on the street; said that Fenwick wanted a logger.
Said, ‘I have recommended you as a logger.’ That
is as near as I can remember the words, twenty-six
years ago. After that conversation with A. B.
Hammond went to work for Fenwick.”

Do you remember anything about any occurrence of
that kind?
A. I don’t remember, but it is quite likely that I
would recommend him if he was a logger.
(Witness Continuing:) I do not know that I did.
I never employed him for Fenwick. I never made
any engagement to employ him for Fenwick. I
knew him as a boy. I also knew him as a man because
he worked for me in the construction of the
Northern Pacific Railroad. I recommended him, I
suppose. I would have recommended him if he had
asked me to.
Q. Mr. Milton Hammond testified as follows: “A.
B. Hammond sent me up in the Blackfoot from Missoula
in, I think, September, 1887. He gave me a
letter to George Hammond. Greorge Hammond
was up there; supposed to be walking boss. Went
to work as a scaler. Nothing was said when I was
employed as to who would pay me. A. B. Hammond
gave me the letter to George Hammond, said I was a
scaler. I wrote A. B. Hammond from Stillwater,
Minnesota, about the business, and he wrote me to
come out. Said he would give as good a job as I was
capable of filling. When I came out, talked to him
some, and he sent me to George, as I said before. In a
letter to me at Stillwater, A. B. Hammond told me to
hire forty men and come out with them. I
picked up a few men there and sent them out here,
and finally came myself. Of course, I had correspondence
with him. I looked him up. He wanted
lumbermen.”
Do you remember any such correspondence as
that with Milton Hammond on the subject of bringing
men out?
A. No, sir. In those days we were doing what we
could to get men to come into the country, both lumbermen
and graders and millmen and laborers of all
kinds [emphasis added].
(Witness Continuing:) It may have been that such
a letter was written by me. At that time we had in
Missoula one hundred and fifty men in our mercantile
house and later on I had men in the bank, the
First National Bank, that I was connected with. I
had quite a large operation up there in the Bitter
Root, the building of fifty miles of railroad. That
is quite a large operation. If Milton Hammond had
been a railroad man, I would have taken him up
there myself where I was operating. With regard
to sending him over to the Blackfoot, assuming that
I did, I had no authority whatever to hire men and
fix their terms of employment at any time. I never
made any contract with any men whereby I employed
them for a designated task and fixed their
rate of wages either on the Blackfoot or the Hellgate.
Q. He testifies, without saying just when it occurred:
“I remember one conversation with A. B.
Hammond about the scale up there. He asked how
the scale compared with the railroad scale. Told
him I did not know; that the orders were not to let
each other know ; he told me he thought it would be
a good thing to understand each other. Never at
any time received any directions from A. B. Hammond
about my work. Never saw A. B. Hammond
on the Blackfoot at all. Saw him at the
Bonner Mill. He was just there on a kind of picnic
or excursion. Never had any conversation in Missoula
Mercantile Company’s store about cutting of
lumber.”
Do you remember any conversation with him about
the scaling operations ?
A. No, sir.
Q. You remember no such conversation ?
A. No, sir.
Q. Mr. W. H. Longley testifies : ” I think it was in
1887, 1888 and 1889 I worked for A. B. Hammond
at the Blackfoot Mill at Bonner. I was running a
planer there.”
On his cross-examination he said: “Henry Hammond
employed me to work at Bonner. I supposed
when I said on direct examination that I worked
there for A. B. Hammond, that that was the same
thing. W. H. Hammond employed me. I simply
supposed A. B. Hammond was interested in that.”
As a matter of fact, were you interested at any
time in a planing mill upon the Blackfoot ?
A. No, sir. I was interested in a planing mill
on the Blackfoot after it was taken over by these
companies.
(Witness Continuing:) I was never individually
interested otherwise than as a stockholder in those
companies—as a stockholder in the Big Blackfoot
Milling Company and the Blackfoot Milling and
Manufacturing Company. I did not know of my
own knowledge at any time as to the precise sections
or quarter sections or subdivisions of land upon
which the Big Blackfoot Milling Company was doing
these logging operations. For instance, as to section
18, township 14 north, range 15 west, and the
so-called Boyd trespass on section 22-14r-14, and the
Edgar claim [617] in section 28, township 14
north, range 14 west. I did not know that they were
cutting on any of those pieces of land at any time
or that Henry Hammond was cutting on the Edgar
place. I never was on any of those lands that I
know of. I knew nothing about the cutting upon
them. I do not know of any particular instance of
horses being sent from the Blackfoot country by
Henry Hammond or by anybody else for sale at Missoula.
I remember, in a general way, that horses
were sent down from the Blackfoot country by
Henry Hammond for sale.
Q. R. K. McLaughlin testified: ”George Hammond
ordered me to take horses down to Missoula.
Horses belonged to Blackfoot Milling Company, to
the best of my knowledge. That is my opinion, not
my knowledge. In my opinion, A. B. Hammond
owned a stable in Missoula. George Hammond told
me to put the horses in that barn. Can’t repeat
what conversation I had with A. B. Hammond about
them.”
Do you remember anything of that particular incident?
A. No, sir. I had no barns.
(Witness Continuing:) As to the barns there were
in Missoula—there was a barn there that belonged
to Eddy-Hammond & Company and afterwards to
the Missoula Mercantile Company and was used by
the Missoula Mercantile Company for keeping its
delivery horses. It was a large barn and a corral.
We kept our freighting outfit there, when we used
to freight from the Central Pacific Railroad into
Missoula by wagon. I do not remember any horses
belonging to the Blackfoot Milling Company ever
being brought there for sale—but no doubt there
were horses sent there for sale by Henry Hammond.
He sent some horses down and asked us to sell those
horses. It may have been that Henry Hammond
closed out his logging outfit and that horses
were sent over during the time that he was closing
that out. There were details of the business that I
did not take the responsibility of. We had a man,
a horseman, to look after the horses, and I did not
pay very much attention to the supervision of that
business. I heard the testimony of McLaughlin,
that he was stopping at one hotel and that I told him
to go to the Florence Hotel. The Rankin House was
the first hotel that he mentioned. The Rankin
House was right directly opposite the Missoula Mercantile
Company, right across the street. The Florence
Hotel was across the street on Higgins Avenue.
There wasn’t very much difference between the
proximity of either hotel to the Missoula Mercantile
Company’s store. The Rankin House was right in
front of the building, across the street, and the other
hotel was on the other street. The Rankin Hotel
was a dollar a day house, where the lumbermen generally
put up, and the Florence was in those days a
three to five dollar a day house, where the fancy
drummers stayed. I do not recollect ever telling
any man who brought some horses from the Blackfoot
to leave the Rankin House and go over to the
Florence Hotel and stay there. [emphasis added] In 1885 I was connected
with the ownership of quite a large amount
of land around the Helena Depot and in that section
where the Helena Lumber Yard was situated. I
platted it out into town lots and we had constructed
quite a number of buildings. I got the lumber for
the buildings from the Helena Lumber Company;
in fact, they took the contract and put up some small
buildings. Now, I used to go to Helena on other
business and business connected with the railroad
operations that I was carrying on. I would always
go down and look over the property that I was interested
in in that section and go into the
Helena Lumber Company’s office and visit with
them. I have testified that the Montana Improvement
Company at one time owned the Helena lumber
yard and sold it to Mr. Coombs and that he then
ran that lumber yard. The sale made by the Montana
Improvement Company was largely upon
credit. I believe the Helena Lumber Company assumed
the indebtedness of Coombs to the Montana
Improvement Company. I might have made, as
Mr. McCulloch testified, an inquiry to the effect that
I asked him at one time concerning whether or not
the stockholders who had subscribed for stock in
the Helena Lumber Company had paid in their subscriptions.
I have no recollection of having made
that inquiry, but the Montana Improvement Company
was in liquidation at that time and dependent
upon the sale of the properties that it had made for
part cash and part credit to pay their obligations–
their own debts. To that extent I suppose I was interested
in knowing how they were getting on with
their business. I may have made such an inquiry,
but I don’t recollect of having made it. I did not,
as a matter of fact, have any interest of any kind
or character in that Helena Lumber Yard. The
Helena Lmnber Company purchased lumber from
W. H. Hammond, at Bonner. They were carried
by him to quiet a large amount, so much so that when
the Big Blackfoot Milling Company took over the
business of W. H. Hammond, they bought an interest
in the Helena Lumber Company with another lumber
company—the A. M. Holter Lumber Company,
and it was changed to the Capitol Lumber Company [emphasis added.
I know that the indebtedness of the Helena Lumber
Company was considerable. I did not have
directly to do with the collecting of the assets of the
Montana Improvement Company. I was in the
Company’s employ. I was interested in the
collection of its assets and I was interested in seeing
these accounts paid, but I had nothing to do with
the collection of these assets. With reference to
cutting upon the Hellgate by Fred A. Hammond or
by Mr. Fenwick during the time their mills were in
operation, I had no knowledge as to the place or
places from which they or either of them at any time
procured any logs for their mills. I did not know
where they were cutting their logs. I have heard
some testimony read here with regard to taxes that
appear to have been assessed to the Missoula Mercantile
Company.
Q. I call your attention to Plaintiff’s Exhibit
No. 10. There are certain items there which appear
to have been assessed to the Missoula Mercantile
Company, one being the Fowler Mill, the Tyler Mill,
the Williams Mill and the Silver Thorn Mill [emphasis added]. Do
you know anything about any of those mills ?
A. The Tyler Mill and the Fowler Mill and the
Silver Thorn Mill, I do, they were little mills that
were put in the Bitter Root Valley and were owned
by the parties who built the Bitter Root Railroad,
and those mills were afterwards sold to the Blackfoot
Milling & Manufacturing Company.
(Witness Continuing:) I never authorized or directed,
nor was I ever present at any meeting of the
Board of Directors at which it was authorized or
directed, that the Missoula Mercantile Company
should return to the assessor any property. I never
authorized any person to make return of the Blackfoot
Milling & Manufacturing Company’s property
or the Big Blackfoot Milling Company property to
the assessor, either in the name of the Missoula Mercantile
Company or under any other name. I know
a piece of property called the Eddy residence in
Missoula. It belonged to R. A. Eddy.
Q. I notice upon this list that that is assessed to
the Missoula Mercantile Company. Did the Missoula
Mercantile Company have any interest in that
piece of property? A. No, sir.
Q. Another, E. L. Bonner residence. Did E. L.
Bonner have a residence in Missoula?
A. Yes, and a fine one. [emphasis added]
(Witness Continuing:) That did not belong to the
Missoula Mercantile Company. I know a block
called the Jordan Block, that belonged to the Missoula
Mercantile Company. I know a block called
the Hammond Block, that belonged to the Missoula
Real Estate Association. The Missoula Mercantile
Company did not have any interest in the Hammond
Block whatsoever.
Q. I call your attention to the assessment of the
Florence Hotel and Eddy Block to the Missoula
Mercantile Company.
A. Those two buildings belonged to the Missoula
Real Estate Association.
(Witness Continuing:) The Missoula Mercantile
Company did not have any interest whatsoever in
the Missoula Real Estate Association. I have no
personal knowledge of how it was that these different
properties not belonging to the Missoula Mercantile
Company happened to be assessed to the
Missoula Mercantile Company.

Tuesday, February 4th, 1913.

(p 685)

Cross-examination.
I was not connected with both firms known as E.
L. Bonner & Company. I was connected with E. L.
Bonner & Company that took the contract to furnish
the Northern Pacific timber, ties and
piling and clear the right of way for about two hundred
and eighty miles. That firm had its headquarters
part of the time at Missoula and a part of
the time at Deer Lodge. E. L. Bonner, of Deer
Lodge, looked after the business at Deer Lodge to a
very great extent. These two firms were not inter-
locked copartnerships. The firm of E. L. Bonner
& Company that took that contract was composed of
E. L. Bonner, J. H. Robertson, R. A. Eddy and myself.
The original Missoula E. L. Bonner & Company
was composed of E. L. Bonner and R. A. Eddy,
the firm that Eddy-Hammond & Company succeeded.
The firm of what we will call the Missoula E. L.
Bonner & Company was a partnership composed of
the gentlemen I have stated, and it was what eventually
became Eddy-Hammond & Company. E. L.
Bonner & Company at Deer Lodge, which had the
contract with the Northern Pacific, was composed
of E. L. Bonner and J. H. Robertson, and the copartnership
continued for a good many years after
the Northern Pacific was built. It did not have
any connection at all in the business or in
any other way with E. L. Bonner & Company that I
was connected with. It was a distinct copartnership.
That copartnership carried on a mercantile
business in Deer Lodge. It had no contracts at all
for the clearing of the right of way. I was one of
the original members of the co-partnership of E. L.
Bonner and Company that had the contract for the
clearing of the right of way. M. J. Connell, was
connected with E. L. Bonner of Butte. I had a onefourth
interest in E. L. Bonner & Company. We
were equal partners.
Q. What amout of money did you put into that
firm ? A. We put in largely our credit.

(Witness Continuing:) It would be difficult for me
to tell about what I was worth at that time—to think
back thirty-one years and say just what I was worth.
I probably was worth $40,000, approximately [emphasis added]. This
firm of E. L. Bonner & Company continued in existence
for several years. As to the persons in active
charge of the work of clearing the right of way for
the Northern Pacific under the contract that E. L.
Bonner & Company had—the work was divided.
Mr. Eddy had charge of everything west of Missoula
and when the active work was commenced, made his
headquarters at a place called Weeksville [emphasis added], about one
hundred miles west of Missoula. The work east of
Missoula was looked after to quite a large extent by
Mr. Bonner and myself. We let contracts for clearing
the right of way. We let no contracts without
consultation with each other. In regard to these
contracts, I participated both before the letting of
them and in their supervision to see that they were
fulfilled, as any other partner would. I
had to see as to the conduct of the affairs of that
company. It was probably equal to that of the other
members. When the firm of Eddy-Hammond &
Company was first organized, it took over the business
of E. L. Bonner & Company of Missoula, which
was a copartnership composed of Mr. Bonner and
Mr. Eddy, his cousin [emphasis added]. I bought a third interest in
that firm. For that third interest I paid $4,000.00
in cash and the balance of what I lacked, I think
some three or four thousand dollars, I had credit for
—I bought on credit and afterwards paid it up. I
was a partner in the conduct of the business of Eddy-
Hammond & Company and performed the duties of
a partner. In the first years of Eddy-Hammond
& Company up until 1882 or 1883, I spent practically
all of my time with the business of that firm. Mr.
Eddy lived in Missoula. He was active in the business.
In 1881 until 1883, Mr. Eddy gave almost all
of his time to the Northern Pacific contract, west of
Missoula. Mr. Bonner was in Missoula a good part
of the time during that period. During 1881 and
1882 and a part of 1883, I was in Missoula a greater
portion of the time than Mr. Eddy. We were all in
Missoula after 1883. As to the person in charge of
the business from 1883 until the incorporation of
the Missoula Mercantile Company—our business was
pretty well systematized and we had men that attended
at that time to the mercantile business very
largely. We had outside enterprises that took a
great deal of our time, and our staff or organization
looked after the details of the mercantile business to
a very large extent. During all of this time it is a
fact that I did my share towards shaping the policy
and affairs of the Eddy-Hammond & Company.
The Missoula Mercantile Company was incorporated
in August, 1885, [emphasis added] and it merely took over, as has been
read from the minutes, the business of Eddy-Hammond
& Company. Mr. Bonner, Mr. Eddy
and myself were about equal owners in that corporation
when it was first incorporated. It was largely
a sort of incorporation of the old business of Eddy-
Hammond & Company—some of the employees
were taken in. I was elected temporary president
and was president for three months. For awhile
after it was organized it was run by the trustees or
a committee. Then Mr. Bonner was elected president.
I think he continued president until 1889 and
I was then again elected president. From then on
I continued as president of the company until after
this cutting that is complained of passed by. It is
a fact that during most of the time when Mr. Bonner
was president of the Missoula Mercantile Company
I was the vice-president. I was also a member of
the board of trustees. I was also a member of the
executive committee appointed by the president or
vice-president to look after the business of the Missoula
Mercantile Company. When Mr. Bonner,
who was president of the Missoula Mercantile Company
was absent from the territory, and it was necessary
to act, I, as vice-president, acted. There were
very few meetings of the trustees of the corporation.
If we had a meeting of the trustees and Mr. Bonner
was not present, while I was vice-president, I presided.
You have a copy of the minutes of those
meetings and I do not recollect how many of those
meetings there were during that time that Mr. Bonner
was president and he was absent and at which
I presided as vice-president. I cannot tell you how
many meetings of that kind I presided over. I do
not know it to be a fact that all the time that Mr.
Bonner was president of that corporation, there were
but two meetings at which he presided over, at a
meeting of the stockholders or at a meeting of the
trustees as president of it. I don’t know how many
meetings we had. I know that there were
not very many meetings. We seldom had any meeting
of the trustees. There was a meeting of the
stockholders every year—probably a meeting of the
trustees every year. I think it is a fact that the records
of this corporation show that I presided over
the meetings of the stockholders and that I did present
to the meetings of the stockholders a balance
sheet showing the condition of the business, the
profits and the losses, resources and the general condition
of the corporation each year. When the
president was not present, I no doubt acted in his
stead, if I was present. I don’t pretend to recollect
back twenty-five years about every directors’ meeting
that we held and who were present. The meetings
were largely perfunctory. We had then an
executive committee and we did not hold regular
directors meetings unless it was for some certain
purpose that the By-Laws provided for. We complied
with the By-Laws as to our meetings. They
were held annually. I think I was a member of the
executive committee of that corporation during all
the time from the incorporation of the Missoula
Mercantile Company. I would not say just what the
duties were of the executive committee offhand.
My duties were to act on subjects when we did not
have a directors meeting—when it was not necessary,
we did not consider it necessary to take it up
before a director’s meeting. When I was at Missoula
and present, I actively participated during all
of those years in those meetings of the executive
committee. As to the time I was present and the
time I was absent—in 1888 and 1889 I was here in
California, part of the time. In the spring of 1890
I moved to Oakland [emphasis added]. We lived there until 1892.
In 1892 I went to Europe for my health and I was
in Europe about seven months. When I say
I lived in Oakland, I mean my family was living
there. I was in Montana part of the time attending
to my business. I was not back in the State of
Montana looking after my affairs during the time
that my family was living in Oakland in 1889 and
1890. I was in Oakland and in California at different
places. We had a house there in Oakland for
two years. In the spring of 1890 we took a house on
Jackson street, Oakland, for two years and we left
there about a month before the time was up. During
that time I went to Montana several times. I
kept in close touch with all my business affairs. I
knew what was going on. I had reports sent to me.
I was not in ignorance of the business that was being
transacted. I had reports sent to me regularly
and I knew what was going on. When I went back
I co-operated with the management. But my business
about that time had largely drifted out of the
mercantile and was in railroad business very largely.
I was not buying and selling timber lands in 1890.
I had no timber lands in 1890 that I know of. During
all of the time that I was down here in California
I suppose I was consulted on important questions.
During the years 1885, 1886 and 1887 I was
quite actively engaged in building railroads in Montana
and in fact gave up the most of my time to
that business. I had an interest in the Missoula
Mercantile Company and I co-operated with the
others in attending to the business when I was in
Missoula. I spent a third of my time away from
Missoula and the balance of the time I was in Missoula
I was occupied with outside business. When
I was in Missoula my office and place of business was
in the Missoula Mercantile Company. The construction
of the Bitter Root Railroad I carried on
from Missoula. Most of the other parties interested
with me were men living in Helena and they
had headquarters there. That was the financial end.
I made frequent visits to Helena to consult with
them. The Bitter Root Railroad was started in
1886. I think we commenced in the very early
spring of 1886 surveying and getting rights of way
and making locations. I could not tell you when
the active work of construction commenced. It was
sometime in 1886. There is a great deal of prelimiinary
work to do leading up to the building of a railroad,
financing it and matters of that kind. The
road to Remini, Laurel, Phillipsburg and Cole
Creek, and these other roads, were started in 1886.
The road from Logan to Butte was started, I think,
in 1887, and the Remini road, I think, sometime
earlier. The Remini road was a short road. It
was eventually built to Marysville. It is a little side
track up the valley back of Helena—we built a road
out the same time to Marysville. That road was, I
think, about twenty-five miles long. The Blackfoot
Milling and Manufacturing Company was incor-
porated late in 1888, I became a stockholder in it
about the same time it was incorporated [emphasis added]. I think
I became a director of that corporation. I would
not be sure. I think I was a director when the company
was incorporated, but I am not sure that I was.
Probably if I did become a director at its incorporation,
I continued as such during its entire life. I
am not sure, I think I was a director. Held no office
in the company outside of director. About the time
of the incorporation of the Big Blackfoot Milling
Company I became a director in the Big Blackfoot
Milling Company and I continued to be a director of
that company until I finally sold my stock to Mr.
Daly. I do not think I was appointed trustee by the
other stockholders and all of the stock was
placed in my name to consummate the sale to Mr.
Daly. I participated in that sale as a stockholder.
The stock was sold to Mr. Daly and was deposited
by the stockholders—at least that is my recollection
of the transaction—in the First National Bank. I
don’t think all that stock was transferred to me as
trustee or that the greater part of it was. I don’t
remember positively. I have told you what I do
remember about it. I remember that it was not
transferred to me. I deposited my stock, like any
other stockholder, in escrow, and the trade was made
and Mr. Daly paid for the stock and took it over.
The purchase price of that stock was not paid over
to me. The sale to Mr. Daly included some timber
land that I owned on Nine Mile Prairie, about thirty
miles west of the Big Blackfoot River. Mr. Daly
had a sawmill—I say Daly, I think it was the Anaconda
Company, but he had a mill down there and he
didn’t want to buy the Big Blackfoot Milling Company
unless he could get these lands that I had near
to the null that he owned. It was because of that
largely that I was drawn into the negotiations in the
manner that I was. Of course, I would have been
drawn into them anyway as a stockholder. That
deal would not have been consummated without my
consent. We could not have sold without the consent
of all the stockholders. At that time my proportionate
ownership of the stock was, I think, the same
as it had been before, that is to say, about twenty per
cent. I don’t remember how much in actual cash
I received out of the sale of the Big Blackfoot Milling
Company stock to Mr. Daly, but I received several
hundred thousand dollars for my holdings on
Nine Mile Prairie [emphasis added]. I would say I had something
like thirty-five hundred or four thousand acres of
land. I think the Montana Improvement
Company was incorporated in 1882 and I think I was
one of the original incorporators of that company..
I was treasurer and manager of that company. I
was manager of that company until, I think, about
1885. [emphasis added] As to the person who succeeded me as the
manager of that company—at that time the Montana
Improvement Company decided to go out of business
and it did go out of business and proceeded to liquidate
its affairs. It took several years to collect in
the indebtedness. It is probable that the Montana
Improvement Company filed an annual statement
under the state law of Montana, clear on up until
1897. The statement will show just what they did.
I would not pretend to say off-hand what those statements
were, that were filed twenty years ago. I did
not keep any track of them, I do not now hold my
interest in that company. I sold out the interest I
had. I think, in the 90 ‘s. I did not have anything
to sell anyway. I would not be sure that as long as
there was any property or any assets or value in the
Montana Improvement Company, I continued as a
stockholder. There was some small value to the stock.
I know of stock being sold in Missoula at sheriff’s
sale—two hundred and fifty thousand dollars worth
of stock and it brought in, I think, two hundred dollars,
or something like that. The Northern Pacific
Company always owned this fifty-one per cent of the
stock of the Montana Improvement Company.
They had a contract for it. I think I ceased to be
a director of the Montana Improvement Company
after it decided to wind up its business and liquidate.
It was in 1885. After that the Montana Improvement
Company had no business. It decided to wind
up its affairs and go out of business. Mr. Hathaway
continued as an employee of the company and had as
much to do with the winding up of the
company as anybody—probably more [emphasis added]. I don’t think
the company ran the Wallace Mill until along in
1886. It went up there and sawed some logs that
were hauled to the Wallace Mill in 1885. It sawed
up those logs and the lumber that was there was disposed
of during the liquidation of the business. Mr.

(p696)

Fenwick and Mr. Henry Hammond were not down
there at Wallace in the employment of the Montana
Improvement Company along in 1886. That plant
was dormant in 1886 and what was done at Wallace
was in line with the liquidation of the affairs of the
corporation, the winding up of its business and disposing
of its properties ; they had their homes there
and they remained in charge of the property, disposing
of it. They were perhaps in the employ of
the Montana Improvement Company part of the time
and part of the time they were not. I knew at the
time of Mr. Fenwick ‘s negotiations for the purchase
of the Bonita Mill that he was negotiating for it. As
to how I learned that—well, I was not such a business
man but what I would know about a proposition
of that kind that was going on in or about Missoula,
especially when they were family relatives. I knew
what they were doing. I could not tell you just now
who told me of these negotiations between Fred A.
Hammond and George W. Fenwick. Perhaps Mr.
Fenwick might have told me about it. They may
have mentioned it. I could not say that I knew before
that time that Fred A. Hammond was rather
dissatisfied with the business down there at Bonita
and wanted to get out. Evidently he wanted to sell
or he would not have sold. He did not consult with
me at all about selling. I don’t think Mr. Fenwick
consulted with me about the purchase ; he may have
told me that he was negotiating with Fred, but I
don’t know that he did. I would not be positive
whether Mr. Fenwick or Fred Hammond
either one, said anything to me about it. I might
have learned it from Mr. Hathaway or anyone else
that was connected with me or had talked with them.
I believe the mill site on Bonner is on this section 22
that we have referred to so often. I do not recollect
what the deed did convey from the Montana Improvement
Company to W. H. Hammond. I do not
think the Montana Improvement Company owned
any land. I do not know from whom W. H. Hammond
got the land in section 22. I think he acquired
an interest in that section 22. I think he homesteaded
it or took it up under a pre-emption, or something
of that kind, but I don ‘t know [emphasis added]. He may have.
I don ‘t know anything about it except from hearsay.
It was his own business. At the time of the transfer
from the Montana Improvement Company to W. H.
Hammond, by this conveyance the Northern Pacific
Company had a contract for fifty-one per cent of the
stock. This agreement was with the Northern Pacific.
The Montana Improvement Company was the
other party to the agreement. At the time this contract
was made by the Montana Improvement Company
with the Northern Pacific Company, I could
not tell you who the stockholders were in the montana
Improvement Company. I was one of them.
Q. Was this contract ever fulfilled, this contract
for fifty-one per cent of the stock? Was the stock
ever transferred to the Northern Pacific Company?
A. I don’t think it was transferred. I would not
be sure about that, but we had a contract to give them
the stock.

(Witness Continuing:) As to whether that was
just simply a gift to the  Northern Pacific
— the contract speaks for itself. I don’t remember the
details of the contract. Those transactions took
place some twenty-five or thirty years ago. There
was a contract with the Northern Pacific Railroad
Company whereby it was to have fifty-one per cent,
and it was because of that contract that the Government
objected to the Montana Improvement Company
operating under the rules of the Secretary of
the Interior, and it was because of that contract that
we decided finally to go out of business. While we
thought that we had, as a local corporation in Montana,
the right to operate under the rules of the
Secretary of the Interior—by which I mean cutting
timber on mineral lands for mining and agricultural
purposes in accordance with the act of June 3, 1878.
The Montana Improvement contract was no subterfuge
to get away from the act of 1875 allowing railroad
companies to cut. It was an absolutely bona
fide transaction. As to what the Northern Pacific
gave to the Montana Improvement Company for the
fifty-one per cent of the stock, it was to have—the
contract provided that the Montana Improvement
Company should have the right to cut Northern Pacific
timber from McCarty’s Bridge in Montana to
Pend O’reille Lake in Idaho, the exclusive right, I
think, for two hundred (200) miles. We were to
pay for the timber as we cut it and it was supposed
by the gentlemen who promoted the Montana Improvement
Company, of which Mr. Bonner was the
head and front, that it was a very valuable contract,
but it turned out otherwise, and because of the objections
on the part of the Secretary of the Interior, we
went out of business. It was not on account of any of
the lawsuits that were brought against the Montana
Improvement Company, for at that time there were
no law suits brought against the company. We had
heard that the Conunissioner of the General
Land Office, Mr. Sparks, held that because of this
contract with the Northern Pacific, wherein it was to
have fifty-one per cent of the stock, that the Montana
Improvement Company, a corporation, was not
entitled to the priidleges under the act of June, 1878,
which is an act which gave the right to cut on mineral
lands, but the right was not given to railroad corporations,
and while we did not agree with the Secretary,
and our attorneys—

Mr. HALL.—You considered, did you not, that by
giving the Northern Pacific Company fifty-one per
cent of the stock, you holding the remaining forty-nine
per cent, that the Montana Improvement Company
had the right to cut under the act of June 3,
1878? A. Well, we—
Q. Just answer the question, yes or no “?
A. We considered it, but we did not—there was a
question there, a question of law and because of that
question we decided to go out of business and did go
out of business.
Q. The attempt was made, wasn’t it, to permit the
Northern Pacific Company to get the benefits of the
act of 1878, by giving it fifty-one per cent of the stock
of the Montana Improvement Company? That was
the arrangement, wasn’t it?
A. Well, the arrangement was to give the Northern
Pacific fifty-one per cent of the stock.
Q. Yes, and that the Montana Improvement Company
should then go on and claim the benefits of cutting
under the act of June 3, 1878?
A. The Montana Improvement Company expected
to operate under that act.
The COURT.—When you concluded to go out of
business, did the Montana Improvement Company
surrender this contract for the right to cut on the
Northern Pacific lands for the two hundred mile
limit?
A. The Northern Pacific Company—yes, that contract
became a dead letter.
Q. Just fell?
A. Just fell. I say the Montana Improvement
Company then decided to go out of business. There
wasn’t enough in it to—

Mr. HALL.—This contract was the life and sinew
of the Montana Improvement Company ?
A. Well, it speaks for itself.

(Witness Continuing:) It was one of the objects
of the organizing of the company, and I suppose
the railroad company—I know we thought we were
within our rights at that time when we decided to go
out of business, and our attorneys thought that we
were within our rights. The attorneys that I speak
of were Warren Toole and T. C. Marshall [emphasis added]. We discussed
it also with the attorneys of the Northern Pacific.
They were at a meeting in Deer Lodge. Senator
Saunders was there. Thomas C. Marshall acted
as attorney for myself and some of these corporations
that I was interested in for a good many years.
The firm was Woody & Marshall [emphasis added]—afterwards it was
Marshall. We had other attorneys. Saunders and
Cullen at Helena were attorneys of ours and Warren
Toole.
Thomas C. Marshall did not come to the State of
Montana until 1880 or 1881. Frank H. Woody was
the name of Mr. Marshall ‘s partner. I was in Montana
in 1878. I knew men by the name of James
House, Matt Coleman and John Fredline. House
was a miner at Wallace; I think Coleman was a
rancher and Fredline was a carpenter. Mr, Woody
had a son; I think his name was Frank H. Woody,
Jr. I don’t think he was born in 1870. He must
have been a very young boy in 1870, if he was born [emphasis added].
I remember hearing, as I would have heard any other
report, that was generally public, of the organization
of the Wallace Mining District at the time it was organized.
As to the boundaries of the Wallace Mining
District, I heard W. J. McCormick, who was
instrumental in effecting the organization, speaking
of the Wallace Mining District and its boundaries.
McCormick was an attorney at Missoula. I
used to know where Medicine Tree Hill is. I had it
pointed out to me, but it is long ago. I know where
McCarty’s bridge is. It is about five or six miles east
of Bonita. I knew where the Tyler Ranch was; that
was at McCarty’s bridge. [Emphasis added] If you say that Tyler’s
ranch is in section 23, township 11 north, range 15
west, I will take your word for it. I never knew
what section it was in. I testified that the principal
amount of timber in that section is from McCarty’s
bridge to Bonner. The Wallace Mills cut timber
directly around them. They did not float any logs
from up the river. The best tract of timber was at
Wallace [emphasis added]. There was considerable of the piling that
I have mentioned cut between Bonita and Wallace,
There was some of it cut around Bonita, a good deal
of it around Bonita and east of Bonita. While the
mills were at Wallace, it was not fair to the contractor
who took the contract to furnish lumber
at that place, to put a mill there and cut the lumber
that was to be used for bridge timbers into piling.
We aimed to let the piling contracts and the tie contracts
where there were no mills. The piling, after it
was cut, was hauled to the line of the railroad. The
contract provided that the piling and ties should be
delivered on the right of way. At that time piling
or ties were not hauled for a distance of ten or fifteen
or twenty miles from the point where they were cut,
unless there was some particular place where they
could not wait for the construction trains and they
had to have piling or square timbers at once, then we
would go out and cut and haul them for these longer
distances, but that was an exception to the rule. The
contract provided that we had the right to deliver
piles, ties and timbers anywhere on the right of way
where it was most convenient to get it.
Q. But throughout this two hundred and eighty
miles of right of way, there was no place, except in
very exceptional instances, where you hauled the piling
and ties more than five or six miles that were used
in the construction, is that what you mean to say?
A. With the exception—there were piles and ties
taken from the Big Blackfoot River and driven down
to Bonner.

(Witness Continuing:) A man by the name of
Sloan had quite a large contract for delivering ties
and piles from the Blackfoot. [emphasis added] He went up the river
and cut the timber along the river, so he did not have
to haul it very far.
Q. But throughout this two hundred and eighty
miles of railroad, isn’t it a fact, Mr. Hammond, that
all along there there was sufficient timber very near
and adjacent to the right of way, so that you did not
have to transport the ties and bridge timbers
any great distance in order to complete the railroad?
A. If you are familiar with that country, you must
know that east of McCarty’s bridge is pretty near a
treeless country for a good many hundred miles near
the road; to the west of Missoula on the Flathead
Reservation, there was no timber.

(Witness Continuing:) That stretch along the
Flathead was furnished with timber from Idaho and
Washington. Some timber was taken out of the
Hellgate Canyon to build that road along the Flathead
Reservation. The timber that went to build
the railroad over the divide west of Missoula at
Moran’s Gulch—the trestle there—was gotten out
west of Horse Plains about eighty miles away, and
they undertook to supply the timber by means of
work trains for the building of that trestle [emphasis added]. The
superintendent of construction, when he arrived on
the ground, objected, and said they would be delayed
six months in building that trestle if the lumber had
to come from Weeksville, which was some eighty
miles away, and he was going to start in hauling it
by teams up there at once and would not wait until
the road got through, because it would mean a very
great delay, which the Northern Pacific Company
could not afford to take ; so that timber was not used;
that is, that timber they had gotten at Weeksville
was not used for the purpose it was intended. They
had to let another contract ; that is, they got the timber
out in duplicate. Weeksville was about one hundred
and ten miles from Bonita. Bonita was thirty
or thirty-five miles from this trestle that had to be
built. This timber was not hauled from the
vicinity of Bonita over to this cut. The road was
built from west to east. I think the road met somewhere
at Garrison and the golden spike was driven
there in the summer of 1883. The railroad crossed
the mountains, the Rocky Mountains, by means of a
switch back. The main line was not constructed
until some time afterwards. The Muklen Tunnel
was not built and the main line road was not constructed,
I think, for some eighteen months afterwards.
The construction came in east and west, but
a great deal of the stuff was taken from the canyon
for the construction of the tunnel and the road lead-
ing up to the tunnel, that was after the road was
joined together, after this temporary road was built
over the Rocky Mountains. I don’t think the completion
of the road in 1883, when it was joined at Cole
Creek, was regarded as the real completion. They
operated that switch back for some considerable time
before the tunnel was completed. This Haycock Mill
—there were three Haycock mills established in this
Hellgate country. The first one established was, I
think, in 1881, between Bonita and McCarty’s bridge.
It was a small portable mill. They were all small
portable mills. When I say a small portable mill, I
mean it was a smaller mill than that which was eventually
run and operated by Fred Hammond and Fenwick
on section 14-11-16. I do not suppose that the
Haycock Mill had a capacity of over eight or ten
thousand a day. It ran there probably six months.[emphasis added]
I do not know whether it ran continuously every day.
It had a small contract and it took out the timber
around it and then moved away. It was not an extensive
mill and did not carry on any operations
nearly as large as the Bonita Mill did. It was a
small mill. [640] It is a fact that the other mills
I mentioned in the Blackfoot country or in the Bitter
Root country were small portable mills that cut
out around the stand. I think one of those mills was
called the Haycock mill and there was a mill down
west of Missoula at Turah, also called the Haycock
Mill.
Q. None of these small mills that we are talking
about had anywhere near the capacity of either the
Bonner Mill or the Bonita Mill?

A. No—the Bonner Mill was a large mill.

(Witness Continuing:) The Bonita Mill was not
a large mill. It was a portable mill. It was larger
than the Haycock Mills. The Haycock mills had a
capacity of probably eight or ten thousand feet, and
I suppose the Bonita Mill had a capacity of fifteen
thousand feet a day. I never estimated its cut. By
a portable mill is intended a mill that can be hauled
away with a wagon and which seeks the lumber rather
than having the lumber brought to it from a distance-
It seeks thickly timbered districts. The Bonner Mill
was a large permanent plant. Indirectly I am a
stockholder yet in the Missoula Mercantile Company,
that is to say, I own stock in a company that owns
stock in the Missoula Mercantile Company. I continued
personally to own stock directly in the Missoula
Mercantile Company until, I think, three or
four years ago. The closing out of my affairs in the
State of Montana and cessation of my personal
supervision of business up there, came about gradually.
Since 1888 I have not been actively in any
business in Montana. I disposed of my residence in
Missoula at that time, and I have not attended to the
details of any business since that in that State. [emphasis added]
I have been a stockholder in the Missoula Mercantile
Company ever since it has been organized.
I have not been a director of the Missoula Mercantile
Company for several years. I was a director in the
Missoula Mercantile Company up until probably
1895. I would not be sure just now.
Q. How much did you ultimately realize from the
sale of your interest in the Blackfoot Milling and
Manufacturing Company, the Big Blackfoot Milling
Company, the Montana Improvement Company and
the Missoula Mercantile Company? [emphasis added]

To which question defendant objected, on the
ground that it was irrelevant, incompetent and immaterial
and not cross-examination, and that it is an incompetent
inquiry as to the private affairs of a citizen
upon cross-examination, which amounts to an
inquisition, as against which he is guaranteed under
the Federal Constitution; which said objection was
overruled by the Court, to which ruling of the Court
defendant then and there duly excepted.

(p707)

Defendant’s Exception No. 16.

A. Well, so far as the Montana Improvement
Company is concerned, I came out at the little end
of the horn. I never got anything out of it. I lost
what I put in. The Blackfoot Milling and Manufacturing
Company was a transfer of stock. I received
stock in the Big Blackfoot Milling Company; that
was really in effect a transfer of the Blackfoot Milling
and Manufacturing Company to the Big Blackfoot
Milling Company, and I received stock in that
transfer.
Q. From the Big Blackfoot Milling Company,
how much did you ultimately receive out of it ?

To which question defendant objected, on the
ground that it was irrelevant, incompetent, and immaterial
and not cross-examination, and that it is
an incompetent inquiry as to the private affairs
of a citizen upon cross-examination which
amounts to an inquisition, as against which he is
guaranteed under the Federal Constitution; which
said objection was overruled by the Court, to which
ruling of the Court defendant then and there duly
excepted.

Defendant’s Exception No. 17.

A. I got my pro rata out of the sale of the Big
Blackfoot Milling Company. I could not say offhand
what it amounted to, but I think it was as much
as my brother got.
Q. Now, the Missoula Mercantile Company, how
much did you ultimately receive from that ?
A. I have never disposed of my interest in the
Missoula Mercantile Company directlly. I have
taken stock in another corporation.
Q. What was the value of your stock when you
transferred your interest in the Missoula Mercantile
Company?

To which question defendant objected, on the
ground that it was irrelevant, incompetent and immaterial
and not cross-examination, and that it is an
incompetent inquiry as to the private affairs of a
citizen upon cross-examination, which amounts to an
inquisition, as against which he is guaranteed under
the Federal Constitution; which said objection was
overruled by the Court, to which ruling of the Court
defendant then and there duly excepted.

Defendant’s Exception No. 18.

Mr. HALL.—I am trying to find out what he derived
from his interest in the Missoula Mercantile
Company.

A. That is a matter of opinion. My interest did
not increase very much. I got 6% dividends on my
stock in the Missoula Mercantile Company. I took
stock in another corporation.
The COURT.—You did not sell it for cash?
A. No, sir.
Q. What is your estimate of its value at the time
of your disposition of it?

To which question defendant objected, on the
ground that it was irrelevant, incompetent and immaterial
and not cross-examination, and that it is
an incompetent inquiry as to the private affairs of
a citizen upon cross-examination, which amounted
to an inquisition, as against which he is guaranteed
under the Federal Constitution; which said objection
was overruled by the Court, to which ruling of
the Court defendant then and there duly excepted.

Defendant’s Exception No. 19.

A. I do not consider that it depreciated any. It
was worth as much as it was originally worth, if not
more.
Q. Can’t you give it to me in dollars and cents,
so we can get it into the record ?

To which question defendant objected, on the
ground that it was irrelevant, incompetent and immaterial
and not cross-examination, and that it is
an incompetent inquiry as to the private affairs of
a citizen upon cross-examination, which amounts to
an inquisition, as against which he is guaranteed
under the Federal Constitution; which said objection
was overruled by the Court ; to which ruling of
the Court defendant then and there duly excepted.

Defendant’s Exception No. 20.

A. I should judge it was worth at least two hundred
and fifty or three hundred thousand dollars.

Redirect Examination.

Thereupon defendant handed to the witness a certain
document thereafter marked Defendant’s Exhibit
“R,” and requested the witness to state
whether or not that was the contract between
the Montana Improvement Company and the
Northern Pacific Railroad Company to which he
had referred in his cross-examination; to which
question the witness replied that it was the original
contract.
Defendant thereupon offered and read in evidence
the said document and the same was thereupon
marked Defendant’s Exhibit “R,” which said contract
is in the words and figures following, to
wit:

[Defendant’s Exhibit *’R”—Agreement, Dated July
2, 1883, Northern Pacific R. R. Co.-Montana
Improvement Co., Ltd.]

This agreement made and entered into this second
day of July, eighteen hundred and eighty-three,
by and between the Northern Pacific Railroad Company,
a corporation created and existing by and
under Act of the Congress of the United States entitled
“An Act granting lands to aid in the construction
of a railroad and telegraph line from Lake
Superior to Puget Sound, on the Pacific Coast, by
The United States of America.
the Northern route,” approved July 12, 1864, and
the Acts and resolutions amendatory thereof and
supplementary thereto, party of the first part, and
the Montana Improvement Company (Limited),
party of the second part,

WITNESSETH, that for and in consideration of
the covenants and agreements of the said Improvement
Company herein contained, the said Railroad
Company hereby grants unto the said Improvement
Company the right to enter upon all the timber lands
belonging to the said railroad company in the Territories
of Montana and Idaho, granted to it by the
said act of Congress to aid in the construction of it
railroad, contained between North & South lines
running respectively through a point on said railroad
known as “McCarty’s Bridge” on the Hellgate
River, in Montana Territory, and through Sand
Point, in Idaho Territory, and so situated that the
timber thereon can be conveniently and economically
brought or taken to mills on or near the said railroad,
or on the Clark’s Fork River or Lake Pend
d ‘Oreille, and any timber lands further east than
McCarty’s bridge belonging to the said Railroad
Company granted as aforesaid, situate on or convenient
to streams running into Lake Pend d ‘Oreille;
excepting & reserving such of said lands as are
or shall be within the right of way of said railroad
or of any branch or other railroad now, or hereafter
to be operated by the said railroad company, or that
may be occupied or used, or required to
be occupied or used, in connection with the operation
of any of said railroads, and also excepting and
reserving any parcel or parcels of said lands in the
immediate vicinity of any of said Railroads, which
at any time the said railroad may desire to have
preserved and shall designate, from time to time,
to the said improvement company, and to cut and
remove from said lands all merchantable timber
thereon suitable to be manufactured into timber,
but only in the manner, for the purposes and subject
to the limitations and conditions herein mentioned
and provided.
The right hereby granted to enter upon or to cut
or remove any timber from said lands, or any of
them, shall not extend beyond the period of twenty
years from the day of the date of this agreement.
And the said Railroad Company hereby agrees to
transport, at reasonable charges, when and where it
can be done without interfering with the other business
of the railroad, logs & timber cut on said
lands & delivered by the said improvement company
on board the cars or flats of the said railroad
company to the mills on the line of the said railroad
erected, or owned, or operated by the said improvement
company; to furnish the necessary sidings for
shipping the lumber that shall be manufactured by
the said improvement company as it will at the same
time, give to any other shipper in like condition as
to location & facilities, & sufficiently low to allow
the said improvement company a reasonable profit
on its business of manufacturing & selling lumber
& the other products of said timber; & to furnish
suitable facilities; as far as reasonably practicable
for loading & unloading on the railroad tracks, the
lumber & other products of said timber manufactured
by the said improvement Company at all important
Towns & Villages along the line of said railroad
in Montana & Idaho, where the said
improvement company can establish a profitable
trade.

And the said Railroad Company further agrees,
that it will not give to any other persons, or body
or bodies corporate, any lower rates, or greater
facilities, for the transportation of lumber that it gives
to the said Improvement Company ; that it will forthwith
withdraw all its timber lands from sale on or
adjacent to its said railroad, & on or adjacent to the
rivers, lakes & streams aforesaid, & will not sell
any part thereof containing timber suitable for the
purposes of this agreement, without the consent of
the improvement Company so long as the right
hereby granted remains in force & effect except
such portions thereof as other persons now have
thereto a equitable claim & will furnish ; that if the
said improvement Company with the fuel, cross-ties,
piling, bridge-timber & lumber necessary for the use
of its railroad, at reasonable & satisfactory prices,
& as low as the same can be purchased from any
other parties it will purchase & take said fuel, ties
& piling, timbers & lumber from the said improvement
Company so far as it can be conveniently used
on that part of the railroad contiguous to the said
timber lands.
The said improvement Company for & in consideration
of the premise does hereby covenant and
agree, to & with, the said railroad company, that it,
the improvement Company, in payment for the said
timber to & removed by it from said lands within
the said period of 20’ years, or during the time this
agreement shall remain in force, shall, & will, forthwith,
issue to the said railroad company, ten thousand
& one full paid shares of the capital stock of
the said improvement company, amounting at their
par value to one million & one hundred dollars & will
make & deliver the certificate, or certificates therefor,
in the manner of & to the said railroad
company or to such other person or persons
as it shall designate & appoint; which said shares
shall not be liable to assessment, or further call, nor
for any further payments under the provisions of
Section 255, of chapter 15, entitled ” Corporations,”
of the Revised Statute of Montana.

That it, the said improvement company, shall,
without delay, erect or purchase the necessary mills
for the manufacture of lumber dimention stuff, &
other timbers, cross-ties, & such materials & products
as the market demands, & the said railroad company
shall require for its own use ; & that it shall and will
conduct its business of logging, lumbering, & manufacturing,
& selling its product with diligence, economy
& dispatch; & shall & will convert the merchantable
timber on said lands into such lumber &
materials as the said railroad company shall require
for use in the operation & maintenance of its said &
the residue into such lumber & products or will supply
the demands of the market for building, agricultural,
mining, or domestic purposes in the said
Territories of Montana & Idaho, & as fast as shall
be required to meet such demands that it will not
cut or suffer or permit to be cut, upon any of said
lands, any timber or undergrowth of any kind less
than eight inches in diameter, that it will not cut,
or suffer or permit to be cut any of said merchantable
timber into full or cross-ties, except as the railroad
company shall require the same to be done;
but it will convert the tops & limbs of all trees cut,
into cross-ties & fuel & shall pile & burn the brush
& refuse in such manner as to prevent the spread
of fires and to suppress any that may be started, so
as to protect the said timber lands, & all lands adjacent
thereto from fires, so far as practicable, & that
none of said timber, or any of the manufactures
or products thereof, shall be exported to
any point or place outside of the said Territories of
Montana & Idaho, or be disposed of, in any manner,
except for the uses & purposes hereinbefore mentioned.

(p715)

And the said improvement company further undertakes
& agrees that to the extent of the $999,900
of capital stock which will remain to it after the
issue & delivery to the said railroad company of the
stock hereinbefore provided to be so delivered it
will supply all the capital that may be required to
erect dc construct or purchase mills, booms, piers,
docks, yards, tugboats & other necessary facilities,
from time to time, as the demands may require &
to repair the same, & to purchase the necessary articles
& materials required for conducting the business
of manufacturing, transporting & selling its
products aforesaid & for the purpose of purchasing
any Government or other timber lands which shall
be deemed to be for the benefit & interest of the said
party of the second part.

The said improvement company agrees to erect &
construct all necessary saw-mills, planing-mills, lathmills,
shingle-mills, drying-houses, piers, docks,
booms & other improvements, & to furnish suitable
& sufficient boats for towing, & barges & other craft
necessary for the transportation of said lumber &
products, & to furnish all the machinery necessary
for the manufactured lumber to the extent demanded
by the market, to be supplied thereby; & shall on
proper notice, furnish said party of the first part
with all the fuel, cross-ties, piling & bridge-timber,
that it may desire for its road & branches thereof,
or feeders thereto, at reasonable rates, & as low as
the same can be procured of other parties; but the
said railroad company reserves the right to purchase
cross-ties, piling, & fuel, or any other material
[650] except sawed lumber, from other parties if
it shall so desire, & if lower prices are given than the
said improvement Company is willing to sell for.
And the said improvement Company agrees that
it will not cut more timber or lumber, than the market
to be supplied thereby reasonably requires; &
in order that the supply of lumber may be husbanded
to meet the natural requirements of the business for
future years, the said improvement company agrees
that at the request of the said railroad company it
will, from time to time, reduce the amount of production,
if the said railroad company shall, at any
time, consider the market overstocked.

That for the purpose of preventing trespassers
upon the public domain of timber over large areas,
each party to this agreement will do all things lawful
& proper to be done by it, to confine such trespassers
as much as possible to supplying the actual wants
of settlers along the line of said railroads for building,
agricultural, mining or domestic purposes.
And the said improvement Company agrees that
it will not furnish cross-ties, other railroad timber
or lumber, to any railroad company, except the party
of the first part, unless the said party of the first
part shall consent thereto.

The said improvement Company, in consideration
of the agreement of the said railroad Company to
furnish the facilities hereinbefore mentioned, at the
important towns & villages along the line of its
railroad in the Territories of Montana & Idaho, as
hereinbefore specified & of its other agreements
herein contained, does hereby covenant and agree
to & with the said railroad company that it, the
said improvement Company, shall & will pay to the
said railroad Company two dollars per thousand
feet, board measure, mill scale, upon all the merchantable
timber that shall be manufactured by the
said improvement Company into [651] lumber, or
other saleable products, the accounts of the same
shall be rendered & said payments made by the said
improvement Company to the said Railroad Company
at the expiration of every three months, or oftener,
if so required by the said railroad company.

It is furthermore stipulated between the parties
hereto, that if the said railroad company shall deem
it advisable & for its best interests so to do, it may
erect mills, & cut, manufacture & remove from said
lands, or any of them, such lumber, timber, & material
as it may need for its own use upon the railroad
belonging to the railroad company, or upon any
other railroad it may desire to furnish therewith.

It is hereby mutually covenanted and agreed by
& between the parties hereto, that this agreement
shall remain in force for the period of 20 years ; but
if the said improvement Company shall at any time
fail to keep, perform or fulfill any of its stipulations,
covenants or agreements herein contained, or shall
without the written consent of the President of the
said railroad company first obtained, assign or transfer
this agreement, or any interest therein, the subject
matter thereof, then in any such case, all rights
& privileges hereby granted to it, shall wholly cease
& terminate, & further that at the expiration of this
agreement whether by lapse of time or or upon failure
or default of the said improvement company, as
aforesaid, the said improvement Company shall have
the right, within a reasonable time, not exceeding
six months, to remove from said lands any mills,
buildings, or other structures, except docks, wharves,
or piers, it may have erected thereon under the provisions
hereof.

And it is hereby covenanted & agreed by & between
the said parties that for speedy settlement of any
questions or matters of difference that shall arise
touching the true meaning or anything [652]
herein contained or the performance or nonper-
formance thereof, on the part of either party & in
respect of which the said parties fail to agree, the
same shall be submitted to the arbitration & award
of three competent & disinterested arbitrators, one
of whom shall select the third & the award of the
said arbitrators, or any two of them, shall be binding
& conclusive upon the parties hereto, in respect of
the questions or matters so submitted to arbitration.
In testimony whereof the said parties have caused
their respective corporate seals to be hereunto affixed
& these presents to be signed by their respective
Presidents, the day & year first hereinbefore written.
NORTHERN PACIFIC RAILROAD
COMPANY,
Signed By H. VILLARD,
President.
Signed Attest. SAM C. WILKINSON,
Secretary.
MONTANA IMPROVEMENT COMPANY.
Signed E. L. BONNER,
President.
Signed Attest. J. A. ROBERTSON,
Secretary.
(Testimony of A. B. Hammond.)
[Indorsed]: 100,486,
Reed. a. L. O.
Oct. 9, 1885.
Copy of contract between
N. P. R. R. Co. and the
Montana Improvement Co.
I Department |
|
I
of the
I Received |
I
Interior.
| |
! L. & R. R. Div.
I
Dec. 14, 1885. | [653]
8444

Recross-examination.

That is the contract that caused us to go out of
business. I think the stock in the Montana Improvement
Company was issued to the railroad company
under that contract, but it was not delivered.
I am not sure about that. I don’t think it ever
passed into the hands of the railroad company. I
was not the secretary or the president. The contract
was entered into in 1883—on the date it bears. The
contract was arranged at the time of the incorporation
of the Montana Improvement Company. The
Montana Improvement Company was incorporated
but it did not operate and the Northern Pacific
people talked about the contract and it was finally
gotten up about the time the Montana Improvement
Company commenced to operate. It was gotten up
in New York. The Northern Pacific people got that
up and Mr. Bonner approved it and it was then that
the Montana Improvement Company proceeded to
look around and get ready to commence business.

The COURT.—That is when you met the objection
—
A. Shortly after that, I don’t think we were in
operation a year before and we heard that the Land
Commissioner objected to the operation of the Montana
Improvement Company under that contract [emphasis added].

(Witness Continuing:) We did in fact operate
under that contract and cut timber in the manner
designated by it. After we got to operating, we did
so under that contract.

Redirect Examination.
We did not abandon that contract until after this
meeting in July, 1885, when we decided to liquidate.

(p721)