261 F. 842 | 8th Cir. | 1919
By bill in equity appellant seeks to enjoin the appellee, its agents, representatives, etc., from in any man
The bill is so voluminous it cannot be set forth in substance. Suffice it to say that the appellant by proper allegations sets forth and alleges jurisdictional facts, and that the appellant and other persons for whom the action was brought had been and are now the owners of large numbers of sheep; that they were and are engaged in the live stock business, are dependent upon the unoccupied public domain of the United States in the locality referred to in the bill for the grazing of their sheep, and are now grazing their sheep on the unoccupied public domain in Sweetwater county, Wyo., abutting and alternating the lands now leased and controlled by the appellee, described in the bill, except when interfered with by the appellee, its agents, etc., as set forth in the bill.
It is then alleged that the appellee is the owner of all odd-numbered sections, and sections 16 and 36, approximating 316,000 acres, for a. distance of 20 miles north and south and SO miles east and west; that
It is further alleged that for many years past, and particularly in February, March, and April, 1916, the appellee asserted the right to prevent the appellant and others from passing over said odd-numbered sections or any portion thereof, with their sheep, and from going to and from the unoccupied public domain for the purpose of grazing the public domain, and has asserted and asserts the right to prevent, and does prevent, access to or passage over the odd-numbered sections owned by appellee, thereby obstructing and preventing free passage over and access to the public domain of the United States, in violation of Act Feb. 25, 1885, c. 149, 23 Stat. 321 (Comp. St. §§ 991 [21], 4997-5002).
It is further alleged that appellee for years past, and particularly at and just prior to the commencement of the action by force of arms, intimidation, fear, and threats of prosecution, and the institution of suits against the appellant and others in common interest with him, prevented the use and denied the right of access to and use of the said public domain within said area, and has prevented and is now attempting to prevent the appellant and others from going upon or trailing over or using the public domain within said area, and by said unlawful means is appropriating to its own use all of the public domain within said area; has obstructed and is obstructing passage over, to, and from the same, with the intent of appropriating to itself the exclusive use of said public domain, and depriving -the public generally of access thereto or use thereof, and has thereby monopolized and is monopolizing the public domain; that appellee plowed a furrow around the outer boundary of said area, designating a mark called the “dead line,” which appellee represented to the public as the line to which the public and stock growers might go, and no further, in grazing the public domain, and in order to prevent the crossing of said furrow by stockmen grazing the public lands, appellee is now keeping guards or riders along
It is also alleged that in the month of January, 1916, appellant grazed Ins sheep on unoccupied public domain of the United States through and onto said area for the purpose of bringing his sheep in close proximity to the railroad, where appellant might procure shipment, for their subsistence, of corn and hay, held his sheep thereon and fed them a stated period, and then drove them back through said area, and was thereafter sued by appellee for the value of the grasses so utilized by appellant upon the lands of the appellee. It is then alleged that this action was brought in bad faitli, and that the same was sham and frivolous, and that the real purpose of said action was to prevent the appellant and others from further exercising their rights as licensees of the government to use and occupy the public domain within said area.
Thereupon the appellee answered, with specific denials of the material allegations of the bill of complaint, but admitting the jurisdictional facts, and the ownership of the odd-numbered sections and even-numbered sections 16 and 36. Appellee alleges that there are numerous highways leading in different directions across the area, affording easy means of going from north to south and from east to west across said lands, and easy means of going from any point to another point across or over said lands; that the plaintiff and others for whom lie is acting has and have always demanded of the appellee, and claimed the right, to drive his or their sheep across and graze the lands of appellee in any direction, and that the method of the appellant, has not been to drive his sheep within the limits of any way across the appellee’s lands, or any section of the same, but to spread them out, so as to occupy a space from half a mile to a mile wide, and then slowly to graze the sheep across each section of appellee’s lands, consuming the grass and herbage thereon entirely, thus in driving the sheep from east to west and west to east over and across the lands of the appellee to consume all of the grass and herbage on appellee’s lands within said area, and to compel appellee to permit them so to do without any compensation to appellee therefor, to appellant’s benefit and to the wrongful injury and damage of the appellee; that appellant and others pretend that it is impossible to drive their sheep to any section of land belonging to the United States without spreading them out in the manner and in the width named, and permitting them slowly to graze across the adjoining lands in flocks and herds, that it is impossible to keep
Appellee specifically alleges that it has at all times offered to permit the appellant and those for whom he assumes to act to pass freely over each and every section of the lands of the appellee, provided, only, that the appellant and others should each obtain such permission, paying to appellee the value of the grass on the lands of appellee consumed and destroyed by the sheep in so passing over its lands, specifically denying that it has ever in any wise made any demand on the appellant, or any one else, except as above stated.. Appellee alleges that it has the right to protect and preserve for its use and the use of its live stock and the live stock of its shareholders such grass and herbage on its own lands as are valuable for the nurture and fattening of live stock. Appellee alleges that the appellant or others have no right to graze large bands of sheep across the appellee’s lands, and that to do so to the extent claimed by appellant would necessarily be destructive of the entire title of appellee to each and every section and portion of each section of its said lands, alleging that the grass and herbage growing upon such area is of a kind peculiar to the region, highly nutritious, and very valuable for the support, nurture, and fattening of live stock; that when it is grazed over and denuded once in any year, it will not reproduce itself in that year, and a single grazing over a particular portion in any year makes it impossible to further pasture or graze the same land for that year.
Appellee specifically denies that it ever had any intention or purpose to prevent the appellant or any one from grazing their live stock on the public domain of the United States, or from going to or from the same, and denies any intent or purpose to appropriate to itself for its own use and benefit the grass, feed, and forage growing upon the public domain within the said area; specifically denying that it ever prevented, or is now through force of arms or intimidation, fear of threats, or prosecution, or the institution of suits or otherwise, attempting to prevent the appellant or any person whomsoever from’ going upon or trailing over or using the public domain, or any of it, either within said area or elsewhere; denying that it ever used any unlawful means in or about the matters involved, or that it has appropriated or is appropriating to its own use the public domain of tire United States within said area, or that it is obstructing or ever has obstructed passage over, to, or from the same, or that it has ever by any conduct or in any manner or method of procedure or by threats of violence monopolized or is now monopolizing the public domain or any part thereof within said area.
In the answer appellee also denies the allegations of appellant as to the facts out of which the suit arose, and alleges in substance that the action was brought for the grass and herbage appropriated by the appellant upon the lands of appellee during an extended period, while
The position of the respective parties is disclosed by the foregoing rather long reference to the issues made by the pleadings. The, appellant attempts by this proceeding to establish a right to trail his sheep over and across and feed them upon the lands of the appellee in common with the lands of the United States, without hindrance on the part of the appellee, and without liability for the grass consumed. Upon the presentation of the rights of the appellant in this court, it was also insisted that the appellant and others similarly situated were entitled to a decree of right of way over and across the lands of appellee; also entitled to have a decree requiring the appellee to mark its lands, so they could be easily identified. This claim of right is based upon its allegation of force, threats, violence, and threats of bringing suits, etc., by the appellee against the appellant and others, and thus preventing and denying appellant and others the right to go over or across any of said lands. The contention of the appellee in short, is that it never has prevented or attempted to prevent, nor does it intend to prevent or to attempt to prevent, appellant from gaining access to the public domain, either by crossing the lands of appellee or otherwise.
Upon the important question of- preventing any one from passing over or driving or grazing sheep across the lands in controversy, the record clearly supports the finding of the trial court that appellee has not prevented or sought to prevent appellant or any one from driving over or grazing the area in question; the only demand that appellee has ever made of the appellant or any one else being that a nominal sum, fixed by appellee, be paid as the value of the grass and other herbage taken from the lands of appellee when so grazed.
The circumstances in the record reveal the good faith of the appellee in bringing action against the appellant for -damages; its right to recover being dependent upon the truth of the allegations of its complaint. There is no pretense in this record of an attempt to sustain the claim of the appellant that the appellee denied appellant and those similarly situated a reasonable way of passage over its uninclosed lands upon demand. The record is entirely silent as to any demand by the appellant or other person that the appellee designate a right of way over and across the area in question.
The record sustains the finding of the trial court that the facts fail to show an intent on the part of the appellee to avail itself of the forage on the even-numbered sections in the area in question, except 16 and 36, or that it has ever made any use of those séctions, or that it has ever made any claim of right or title to the possession of said government sections, or to the grass growing thereon.
Nothing -that was said by this court in Mackay v. Uinta Development Co., 219 Fed. 118, 135 C. C. A. 18, states or implies that sheep owners, the appellant or others similarly situated, could deliberately take possession of the lands of the appellee, those lands being plainly marked as the court found, and pasture them with sheep under the direct supervision and absolute control of those in charge, and thus pasture the lands of the appellee without making compensation, particularly if appellant and those similarly situated do this against the will of the appellee, and under such circumstances as to show a deliberate in
There can be no question but the appellant in common with other persons has the right to the benefit of the public domain, and the courts will not enforce any rule of property in the appellee that will deny to the appellant and those similarly situated a reasonable way of passage over the uninclosed tracts of land of the appellee. Mackay v. Uinta Development Co., 219 Fed. 120, 135 C. C. A. 18. This record fails entirely to show that appellant demanded such a way over and across the lands of appellee to the lands of the United States, and therefore there is no denial of this right.
A different situation would be presented, here, if the record disclosed appellant and others similarly situated in a position where it was necessary to drive sheep, in the control of those in charge, over the lands of the appellee to reach the government lands, that a demand had been made upon the appellee for a reasonable way, and that appellee had failed or refused to designate such reasonable ways; such refusal being accompanied by proof of threats preventing appellant and others similarly situated from designating and using such a reasonable way.
The entire contention of the appellant rests upon the assumption that the allegations of his bill have been sustained. A careful examination of the record confirms the finding of the trial court that appellant has failed in this respect.
The judgment of the trial court, dismissing the bill of complaint, with costs to appellee, is affirmed.