114 F. 52 | 9th Cir. | 1902
after stating the facts as above, delivered the opinion of the court.
It appears from the evidence that the defendant is the owner of section 25, township 20 north, range 38 east of Willamette meridian, Spokane county, Wash., and has a lease of section 36 in the same township. These two sections adjoin, and the defendant had inclosed them with a wire fence, thus making an inclosure two miles long north and south, and approximately one mile wide east and west. A county road meanders along the east line of said sections. The government land charged in the indictment to have been unlawfully inclosed by the fence of the defendant is the N. W. % of section 2, township 19 north, of range 38 east, and the S. W. ¾ of section 26, and section 34, township 20 north, range 38 east. None of this land adjoins that inclosed by the defendant; but it is contended that the defendant, by connecting his fence with that of other owners of land on the north and south, has cut off the government land from access to the county road, and is thus violating the statute prohibiting the inclosing of government land. The chain of private fences complained of immediately incloses only the lands of the various owners, and the inclosing
The act of February 25, 1885 (23 Stat. 321), provides as follows:
“That all inclosures oí 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. * * *
“Sec. 3. That no person, by force, threats, intimidations, or by any fencing or inclosing, or any other unlawful means, shall prevent or obstruct, or shall combine and confederate with others to prevent or obstruct, 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, or shall prevent or obstruct free passage or transit over or through the public lands. * * *”
The trial court instructed the jury, in this connection, as follows:
“The law which I have read to you has for its obvious purpose the protection of the rights of the public in and to all of tl}e public domain, as against the selfishness of any particular individual, association, or company, or set of individuals, to appropriate to their own use the public domain and exclude the public from the equal enjoyment of the use of it while it remains public and unclaimed by private individuals. The law is broad in its terms, and it is intended to prohibit any manner of inclosing the public domain by a person or a company or a corporation that has no color of title or right to have the exclusive use of it. The inclosure by a fence, or a combination of fences, or joining of fences that is wholly upon the land which the person does own, is unlawful, if in effect it does' inclose and shut out the public from any part of the public domain. A man has no right to build a fence upon his own land, that connects with another fence, that is so connected as to form an inelosure of public land, and shut the public out, or prevent their passage over the public lands.”
This instruction was plainly directed ,to the charge contained in the fifth count of the indictment, and this count appears to have been framed under section 3 of the above-named act. Upon the evidence in the case and the charge contained in the count, the question to be submitted to the jury was whether the defendant had, by “fencing or inclosing, or any other unlawful means,” prevented or obstructed free passage or transit over or through the public lands of the United States. By a well-known rule of construction the words “or any other unlawful means,” in describing and giving scope to the prohibited acts, relate back to and qualify the preceding words “fencing” and “inclosing,” so that those words must be read as “unlawful fencing” and “unlawful inclosing.” In other words, the “fencing” or “inclosing” of land does not become unlawful merely because either of these acts prevent or obstruct any person from peaceably entering upon or establishing a settlement or residence on a tract of the public land subject to settlement' or entry under the public land laws of the United States. The act of a person in fencing or inclosing his own land is lawful. It is- also lawful for a person to fence and inclose his own land up to a
“It is no answer to say that, if such odd-numbered sections were separately fenced in, which the owner would doubtless have the right to do, the result would be the same as in this case, to practically exclude the government fi'om the even-numbered sections, since this was a contingency which the government was bound to contemplate in granting away the odd-mun-bered sections. So long as the individual proprietor confines bis inclosuro to his own land, the government has no right to complain, since he is entitled to the complete and exclusive enjoyment of it, regardless of any detriment to his neighbor; but when, under the guise of inclosing his own land, he builds a fence which is useless for that purpose, and can only have been intended to inclose the lands of the government, he is plainly within the statute, and is guilty of an unwarrantable appropriation of that which belongs to the public at large.”
In the case at bar, however, the evidence tends to show that no public land had actually been inclosed by the fence of the defendant alone. He had, it appears, constructed a fence around two sections of his own land. This land is situated between certain public lands and the county road. Other owners of land in the vicinity had formerly fenced their holdings, apparently without complaint from the government or adjoining settlers. The fence of the defendant, connecting with the fences of the other owners, had formed a chain of fences which presented a barrier between the public land in question and the county road. It is evident that this portion of the country is not well populated, and that public roads are few, as the greater part of the public land claimed to be unlawfully inclosed by the fence in question is two miles from the county road. Upon this evidence it was clearly the duty of the court to submit to the jtiry the question whether the defendant’s fence or inclosure was erected by him in good faith to inclose his own land, or whether, in joining his fence to that of others, it was his intent and purpose to prevent or obstruct any person from peaceably entering upon, or establishing a settlement or residence upon, the tract of public land described in the indictment. This the court did not do, but instructed the jury that a fence built
The other errors assigned are without merit, and require no discussion. For the reasons stated, the judgment of the circuit court is reversed, with directions to grant a new trial.
