201 F. 281 | 9th Cir. | 1912
The United States brought this bill in equity before the District Court in and for the District of Nevada, to restrain the Golconda Cattle Company, a cattle raising corporation, from maintaining a certain fence alleged to inclose about 26,000 acres pf public land in Elko county, Nev. The bill charged that the Golconda Cattle Company continuously, from May, 1910, maintained and controlled an inclosure made of posts and wire and natural barriers about the landp and that the fence was so constructed as to prevent stock, such as cattle, horses, sheep; etc., from passing over, under, .or through the same.
The Golconda Company denied that it had ever maintained or controlled an inclosure of any of the lands described in the complainant’s bill, by means of fence or in any other way. The company admitted that there were fences upon or near various portions of the land described in the bill, but averred that they were not constructed so as to prevent live stock from passing through the same; that in many places there were holes and openings through the fences; that, while there were fences and portions of fences on some of the land, they were not constructed or joined so as to constitute an inclosure; that stock and vehicles could freely pass through the openings and across the lands described in the bill; that there was an open public road leading into the tract and passing out of the same; that there were various openings; and that there had been no inclosure for exclusive use of the lands as described.
' The District Court found that an inclosure existed and that the law was violated, and then made an alternative order to the effect that unless the defendant should make certain openings, as defined in the opinion of the judge, the inclosure described in the bill should be abated. Thereafter the court made an order reciting that, the openings as fixed in the opinion of the court having been made without reference to the convenience of the public or the defendant, and in the absence of evidence as to the most suitable places therefor, each party should be allowed three months within which to make proofs
It appears from the evidence and the findings made by the District Court that, inside of certain fences or parts of fences which are owned or controlled by the Golconda Company, there are 26,000 acres of government land and 11,000 acres of lands owned privately; nearly all of such privately owned lands being the property of the Golconda Company. These 11,000 privately owned acres are, generally speaking, bottom lands, and are so situated that they may be said to surround the government lands involved in this controversy. Toejam Mountain lies toward the northeastern part of the entire tract. Toejam creek and Rock creek traverse the bottom lands on the north and west sides, respectively, while Willow creek and Siawappe creek traverse them on the south and east, respectively. In the northeastern end of the tract are the western slopes and foothills of the Rock Creek Mountains. The headwaters of Toejam and Siawappe creeks are less than a mile apart at a point in these- foothills. Sixteen miles away, and at a considerably lower level, in a southwesterly direction, the last-named creeks come together. Inside the fences, and just above the junction of Willow and Rock creeks, there are about 2,500 acres of the 11,000 acres privately owned, as hereinbefore stated. The privately owned lands extend on the northern side up Rock creek and Toejam creek toward the northeast end, and on the southern side up Willow creek and Siawappe creek. It was found that the tract of public lands, formed, as just described, was inclosed by a post and wire fence, some 44 miles in length, none of which is on government land.
The learned district judge said:
“ * * * All of this fence except about 4 miles on Rock- creek immediately above its junction with Willow creek, and a drift fence known a-s North’s fence at the northeast corner of the tract, has been constructed since 1008. About 4 miles above the junction of the two creeks, there is a short lane 150 feet in width, through which passes the public highway from Tusearora to Midas. From this lane to the next opening in the fence up Rock creek is more than 4 miles in a direct line, and more than 5% miles by fence. Here is an opening of 100 feet, known as opening No. 3. From this gap to the next, designated as No. 4, 100 feet in length, there are more than 4 miles. From the last opening there are 2% miles of fence to opening ‘B,’ 50 feet long. Between this opening (B) and North’s fence, there are 2% miles. North’s fence, which forms something more than 1% miles of the inclosure, is old, in poor repair, and down at a number of places. Between North’s fence and Nelson's fence there is a gap of 1% miles. The country here is rough and mountainous, but not impassable for either cattle or sheep. Following Nelson’s fence 1% miles to the south we come to opening ‘A,’ a gap of 300 feet. From this gap south to opening No. 6, defendant maintains a continuous fence for 4% miles. Gap No. 6 is about 3,400 feet long, and is favorably and conveniently located for the passage of cattle drifting toward Rock Creek Mountains. Between openings 6 and 7 there are more than 4 miles of fence. The last is an opening of 100 feet, through which the road from Tuscarora*284 enters the field emerging at No. 1 on the west side. 5% miles west of opening No. 7 is opening No. 8, 100 feet long. Following the fence from this' point in a southwesterly direction down Willow creek around the southwest end of the field, and thence northeast up liock creek, a total distance of 8 miles, we come to opening No. 1, the place of beginning. There are thus nine openings in a total fence line of more than 40 miles. The evidence shows that cattle belonging to neighboring stockmen have often grazed on the government land in question, since the inclosure was made, and across it in 1910' more than 200,000 sheep were driven from southwest to northeast. The government land is all rough and hilly; it has a general slope toward the southwest, as well as an inclination from the central highland toward Willovf creek on the south, and to liock creek and Toejum creek on the north and west. It affords only a somewhat scant pasturage for about two months in the early spring.”
It is not disputed that the fences are along the outside, and not the inside of the cattle company’s lands, so that between the fences and anpellant’s lands lie’s the large area of public domain involved here. It is impossible to gain access to this land except by crossing land which belongs to the cattle company, either through certain openings in the fences purposely made by the cattle company, or the opening of 3,400 feet situate in the northeastern part of the tract lying at the-foot of Toejam Mountain.
After the enactment of the homestead act in 1862, there was much immigration to the Western States having large areas of public lands. Naturally the public lands immediately tributary to streams were first settled upon while the uplands were used for grazing purposes. The public lands were not fenced, and the privilege of use of the public domain for stock ranges was not denied by the government. As time passed, the available lands in the creek bottoms became scarce, and settlers were obliged to seek homesteads upon lands back from streams. It was soon proved, however, that such lands could be irrigated and profitably cultivated; hence, as knowledge of these facts spread, demands for such lands by homestead seekers greatly increased. As occupation became more common, settlers fenced their claims, and so the area of public lands available for stock ranges became less extensive. Under these conditions, not infrequently men sought home
As a result of the continuance of such practices, much public land was fenced, and often one who in the best of faith wished to take up a homestead found that immense tracts of what he believed to be the public domain (and which were so in fact) were segregated by some form of fence or barrier. Free access to the public lands was prevented, and the generous invitation to enter upon the unoccupied public lands which had found its expression in the homestead law appeared to mean less than the pioneer had been led to believe it meant. Naturally, fences or strips of fence built as if to separate the lands inside themselves conveyed notice that the lands within were claimed by some right. Often far from a land office or other place where he had a right to go for immediate information, too poor to incur unforeseen expenses and delays, the settler would heed the warning of the fence and go elsewhere in search of open unoccupied domain.
In time, however, dissatisfaction with such unlawful occupancy became widespread in the Western States, and in 1885 Congress, in order to protect the public domain, considered as a remedial measure the law under which the government not only herein, but in many other cases, has proceeded to accomplish the removal or destruction of unlawful inclosures. The history of the act of Congress shows that
“The necessity of additional legislation to protect the public domain because of illegal fencing is becoming every day more apparent. Without the least authority, and in open and bold defiance of the rights of the government, large, and oftentimes foreign, corporations deliberately inclose by fences areas of hundreds of thousands of acres, inclosing the avenues of travel and -preventing the occupancy by those seeking homes. While those fencing allege the lands within such inclosures are open to settlement, yet no humble settler, with scarcely the means for the necessaries of life, would presume . to enter any such inelosure to seek a home.
“The government has sufficient authority to drive those seeking homes from the Indian Territory, and to bum the ranches of those invading the Yellowstone Park, while those appropriating vast areas are hoping the only remedy to^be used against them will be the law’s delay in the courts.
“Therefore your committee have added a new section to the Army bill, authorizing the President of the United States to summarily remove all obstructions, and, if necessary, to use the military power of the United States.”
Thereafter, on February 25, 1885, the act was duly approved. 23 Stat. U. S. 321 (U. S. Comp. Stat. 1901, p. 1524). The first section is as follows:
“That all inclosures of any public lands in any state or territory of the United States, heretofore or to be hereafter made, erected, or constructed by any person, party, association, or corporation, to any of which land included within the inclosure the person, party, association, or corporation making or controlling the inclosure had no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith with a view to entry thereof at the proper land office under the general , laws of the United States at the time any such inclosure was or shall be made, are hereby declared to be unlawful, and the' maintenance, erection, construction, or control of any such inclosure is hereby forbidden and prohibited; and the assertion of a right to the exclusive use and occupancy of any part óf the public lands of the United States in any state or any of the territories of the United States, without claim, color of title, or asserted right as above specified as to inclosure, is likewise declared unlawful, and hereby prohibited.”
Section 2 makes it the duty of a district attorney in the proper district, on affidavit filed by a citizen that section 1 of the act is being violated, to institute a civil suit in the name of the United States against the parties in charge of or controlling the inclosure complained of. Jurisdiction is conferred upon the United States courts to hear and determine proceedings in equity by writ of injunction to restrain violations of the act. As indicative of the .determined purpose of Congress to afford speedy and adequate remedy, it is worthy of remark that section 2 directs that suits brought under the provisions of that section shall have precedence for hearing and trial over other cases on the civil docket of the court, and, in case the inclosure complained of is fqund to be unlawful, the court is authorized to make proper order for the destruction of the inclosure in a summary way, unless such inclosure shall be removed by the defendant within five days after the order of the court.
Section 3 provides that no person, by force, threats, intimidation, or by any fencing or inclosing or any other unlawful means, shall prevent or obstruct any person from peaceably entering upon or estab
Section 4 makes it a misdemeanor to violate the provisions of the act.
Section 5 authorizes the President to take such measures as shall be necessary to remove and destroy any unlawful inclosure of any public lands, and to employ such civil or military force as may be necessary for that purpose.
Executive attention was also specially given to the conditions exist-' ing, and President Cleveland on August 9, 1885, issued his proclamation in these words:
“Whereas, public policy demands that the public domain shall be reserved for the occupancy of actual settlers in good faith, and that our people who seek homes upon such domain shall in no wise be prevented by any wrongful interference from the safe and free entry thereon to which they may be entitled; and
“Whereas, to secure and maintain this beneficent policy, a statute was passed by the Congress of the United States on the 25th day of February, in the year 1885, which declared to be unlawful all inelosures of any public lands in any state or territory to any of which land included within said inclosure the person, party, association, or corporation making or controlling such inclosure had no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim made in good faith with a view to entry thereof at the proper land office; and which statute also prohibited any.person, by force, threats, intimidation, .or by any fencing or inclosure or o-ther unlawful means, -from preventing or obstructing any person from peaceably entering upon or establishing a settlement or residence on any tract of public land subject to settlement or entry under the public land laws of the United States, and from preventing or obstructing free passage and transit over or through the public lands; and
“Whereas it is by the fifth section of said act provided as follows: ‘That the President is hereby authorized to take such means as shall be necessary to remove and destroy any unlawful inclosure of any of said lands, and to employ civil or military force as may be necessary for that purpose;’
“And whereas it has been brought to my knowledge that unlawful inclosures, and such as are prohibited by the terms of the aforesaid statute, exist upon the public domain, and that actual legal settlement thereon is prevented and obstructed by such inelosures and by force, threats, and intimidation :
“Now, therefore, I, Grover Cleveland, President of the United States, do hereby order and direct that any and every unlawful inclosure of the public lands maintained by any person, association, or corporation be immediately removed; and I do hereby forbid any person, association, or corporation from preventing or obstructing by means of such inelosures, or by force, threats, or intimidation, any person entitled thereto from peaceably entering upon and establishing a settlement or residence on any part of such public land which is subject to entry and settlement under the laws of the United States.”
Now, in the presence of the situation just described, which led up to the consideration of the remedial measure quoted, of the history of the act of Congress, and of the executive action taken after the enactment of the statute, it is very clear to us that the courts should give effect to the broad purpose of the act to prevent unlawful occupancy of the public domain by avoiding a construction which would
The particular argument that the openings which are referred to in the opinion of the District Court as having been made by the cattle company were for the purpose of allowing free use and access for all persons and cattle to the government lands “in the vicinity” of the fences, and that there has been such free use and access, is not persuasive. In a restricted sense this may be true, but in a practical way it does not materially change the situation. For instance, as pointed out by the lower court, from the lane through which passes the road between Tuscarora and Midas there are more than 5miles of fence before another opening is reached. Then there is an opening of 100 feet, and then again more than 4 miles of fence, then an opening of 100 feet and 2% miles more of fence, and so on. At one point a.mile and a half of fence, called “North’s fence,” is in bad repair and down at places. Granted that cattle will sometimes drift, more or less reluctantly, over wire fence which is down, it is nevertheless true that even a fence partly down is a visible tangible barrier, and where there are over 40 miles of fence surrounding an area of p'ublic land, with only 8 or 9 narrow openings therein, the fact that in a rocky rough section a mile and a half of the fence is in bad repair and partly down
We have not overlooked the possible applicability of section 3 -to such a situation. It is to be said, however, that that section is specially intended to prevent obstructing any person from peaceably entering upon or settling upon the public domain, as well as to prevent obstructing- free passage or transit over or through the public lands. The word “fencing,” as used in this section, is but the enumeration of one character of means by which obstruction or prevention from entry upon the public lands or free passage over them may be effected. “Inclosing” is also specifically enumerated as another means; so are force, threats, intimidation. But while any fencing or inclosing is declared to be a means of obstruction, the act of maintaining an inclosure of the public land is to be reached by suit under section 1 and not under section 3. It would be correct, for instance, to invoke section 3 as against one who has a piece of drift fence but no inclosure whatsoever, provided such a fence is an obstruction to entry or settlement or prevents free passage over the public lands; and, if one obstructs entry or settlement by an inclosure such as appellant herein had, he could be indicted for violating section 3; but, to have the in
Another illustration of how section 3 might be inapplicable is this: A person might go into the roughest isolated mountains, and there without claim of any kind inclose a section of public land. Such an inclosure, however, might not prevent or obstruct any person from peaceably entering upon or establishing a settlement or residence upon the public domain, nor might it prevent free passage over or through the public lands; all because no one would wish to settle upon the inclosed tracjt or any land near to it or to gain access to any of the public domain within the inclosure or near to it. But under section 1 unquestionably such an inclosure of public land would be unlawful, and, upon complaint made to the district attorney of the proper district, it would be his duty to institute a civil suit against the person controlling the inclosure, and, upon its being found unlawful, it would devolve upon the court to make an order for the destruction of the inclosure in a summary way, unless it should be removed within five days. And indictment would also be proper under section 4.
“It makes punishable the act of unlawfully inclosing the government lands, and it makes punishable the act of unlawfully maintaining' an inclosure, whether the person maintaining the same was the person who erected it, or whether, at the time when it was erected, it was erected with or without authority of law.”
In Homer v. United States, 185 Fed. 741, 108 C. C. A. 79, the Court of Appeals of the Eighth Circuit reaffirmed its opinion in the Camfield Case, supra, by expressly deciding that one’s intent in build
The order appealed from is affirmed.