5 Utah 591 | Utah | 1888
Plaintiffs brought suit against defendants to restrain them from pasturing sheep on the lands of the plaintiffs, and for other purposes. The plaintiffs claim to own a great variety of alternate sections of railroad lands, and charge that the defendants own separate and distinct flocks of sheep, but pasture them in various parts of these alternate sections of land. The defendants demurred to the complaint, alleging as the grounds of demurrer that the complaint does not state facts sufficient to constitute a cause of action, and that it improperly unites different causes of action. The demurrer was sustained; and, the the plaintiffs electing to. stand on their complaint, the action was dismissed by the court, From this judgment of dismissal the plaintiffs have appealed to this court. The case has been submitted without briefs and without arguments. The assignment of errors has reference wholly to the sustaining of the demurrer, and the consequent dismissal of the action.
The first ground of demurrer is that the complaint does not state facts sufficient to constitute a cause of action. It is a well-recognized fact, and one of which the court will take judicial notice, that a very large proportion of the lands in this region are used for grazing purposes, and for such purposes alone. It becomes a necessity, therefore, that the strict rules regarding trespass upon lands are not entirely applicable, or,- at least, are very much modified. These lands were all originally government lands, and are mostly so at the present time. The government has tacitly given the public the privilege of pasturing' on these lands, and the common practice is for the settlers to use them in common, except where they may be fenced.