| Idaho | Feb 20, 1888
This action was brought to restrain the respondent from herding, grazing, and pasturing his sheep upon certain public lands, the property of the United States. A temporary injunction was granted, and, the case coming to be heard upon an agreed state of facts, the injunction formerly entered was dissolved, and from this order the appeal is taken to this ■court. It appears that the premises to which the injunction applied consists of a large tract of the public lands of the United States, only a part of which has been surveyed; one of the ranges being about fifteen miles long and five miles wide, as stated in appellant’s brief. We are not informed as to the size of the other. These appellants have used said ranges for several years for the purpose of pasturing their cattle and horses on the same during the winter seasons; said ranges being very valuable for that purpose. The stock thus wintered upon said ranges is driven to other parts in the summer season. It is ■admitted that sheep, cattle, and horses will not thrive and prosper when on the same range; that sheep will thrive where cattle will not. Shortly before bringing this action, the respondent ■brought a large flock of sheep to this section of the country, and proposed to graze, pasture, and winter them on the ranges in controversy; whereupon this action was brought. It is claimed by appellants that they have a right to hold and use said grounds for winter pasturage, and to exclude the respondent from pasturing his sheep thereon for two reasons: 1. Because of their priority of possession, they having enjoyed that privilege for ■several years past: 2. Because of the provision of the Revised ■Statutes of this territory, which is as follows: See. 6872. “Any person owning or having charge of sheep, 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 any cattle-grower, ■either as a spring, summer, or winter range for his cattle, is guilty of a misdemeanor; but the priority of possessory right between cattle and sheep owners to any range is determined by the priority in the usual and customary use of such range, either as a cattle or sheep range.”
The appellants claim, however, that they have held these-ranges for several years, and therefore they hold the same now-under an adverse possession, as to this respondent, from entering thereon with his sheep. We think a court of equity should not interfere to enforce such a claim by injunction, in view of the-act of Congress of February 25, 1885 (23 U. S. Stats, at Large, p. 321), w-hich provides, in substance, among other things, that, the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States without claim,, color of title, or asserted right, as therein specified, is declared to be unlawful, and thereby prohibited. When we take into-consideration the object, purpose, and spirit of that law, and the-fact that apellants do not claim to hold by virtue of any of the possessory acts, but only by their right of prior possession,, we think that said act of Congress is a complete answer to all authorities cited and arguments urged upon that point. If,, therefore, the action cannot be maintained because appellants have no legal or equitable title to the pasture in dispute, we think that the second ground urged, that the threatened act will be a violation of the Revised Statutes before quoted, is-equally untenable; for it is a general rule that a court of equity
Many reasons might be given in support of the correctness of the judgment in this case, but we think a further discussion of the subject unnecessary. Judgment of the court below is therefore affirmed.