41 F.2d 30 | 9th Cir. | 1930
This suit is the outgrowth of a range war between contending sheep and cattlemen. Briefly, stated, it appears from the allegation of the bill of complaint that between the years 1880 and 1895 a certain range on the public domain in the territory and state of Arizona was used exclusively by sheepmen; that there was a shortage of water on the range and, soon after 1880, the sheepmen using it constructed dams and reservoirs for the purpose 'of conserving and.impounding the water for the use of their stock; that soon after this •was done, beginning about 1895, cattlemen began to use the range for the purpose of pasturing their cattle; that from that time until 1924 the range was what is termed a mixed range, as defined by section 641 of the Revised Statutes of Arizona (Pen. Code
There is an implied license that the public lands of the United States, especially those in which the native grasses are adapted to the growth and fattening of domestic animals, shall be free to the people who seek to use them, when they are left open and unenclosed. and no act of the government forbids their use; Buford v. Houtz, 133 U. S. 320, 10 S. Ct. 305, 33 L. Ed. 618; and any unlawful interference with that right is an offense against the United States. McKelvey v. United States, 260 U. S. 353, 43 S. Ct. 132, 67 L. Ed. 301. But the right thus conferred is subject to regulation by the state or territory in which the public land lies.
The Arizona statute, already cited, provides :
“Any person owning or having charge of sheep or goats who herds, grazes or pastures the same or permits or suffers the same to be herded, grazed or pastured on any cattle range previously occupied by cattle or upon any range usually occupied by a cattle grower either as a spring, summer or winter range for Ms cattle, is guilty of misdemeanor; but the priority of right between cattle a,nd sheep owners to any range is determined by priority in the usual and customary use of such range either as a cattle or sheep range.
“Providing that nothing herein contained shall be construed as prohibiting the herding or grazing of sheep over or upon any mixed range.”
The validity of a similar statute of the state of Idaho was upheld by the Supreme Court in Omaechevarria v. Idaho, 246 U. S. 343, 38 S. Ct. 323, 62 L. Ed. 763.
Little complaint seems to be made of the ruling on the first cause of action. What the appellant really seeks is a declaratory judgment under the laws of the state, establishing Ms rights in the public range as against the appellees and presumably as against the state of Arizona. But such relief a federal court is without power to grant. Liberty Warehouse Co. v. Grannis, 273 U. S. 70, 47 S. Ct. 282, 71 L. Ed. 541; Willing v. Chicago Auditorium Ass’n, 277 U. S. 274, 48 S. Ct. 507, 72 L. Ed. 880. The appellant has no title to quiet, and any injunction the court might issue would necessarily be vague and general in its terms, restraining the commission of acts already prohibited by the laws of the United States or of the state. For these reasons, wo are of opinion that the appellant has an adequate remedy by invoking the protection of the criminal laws or by an action at law for damages, and that the case made does not justify the interposition of a federal court of equity.
The decree is therefore affirmed.