7 Mont. 402 | Mont. | 1888
This action is brought under the act of February 25, 1885, entitled “An act to prevent unlawful occupancy of public lands,” to compel the defendant to remove his fences from certain lands alleged to be a part of the public domain.
The answer admits that the defendant has fenced 190 acres of land situated in Madison County, Montana, and alleges that 167 acres of said land belong to the defendant by virtue of a grant from the Northern Pacific Railroad Company, although the defendant has been unable to procure the title of said company thereto by reason of the failure of the plaintiff to cause the township which contains said lands to be surveyed. The answer also alleges that, of the 190 acres so admitted to be fenced, 160 acres are included in a notice of declaration filed in the office of the county recorder of Madison County, acknowledged by the defendant, expressing and describing his right of occupancy; that the defendant has been unable to procure the title of the United States to said lands, through the failure of plaintiff to survey and offer the same for sale. And the answer further alleges that the defendant has the qualifications of a settler upon the public domain required by the United States statute; and the fact that the defendant intends to enter said 160 acres, or so much of them as belongs to the United States, in the proper land-office, as soon as said office can legally receive filings thereon. Upon the complaint, which is admitted to be in proper form, and
For the purposes of this appeal, it is admitted by the parties that all of the 190 acres fenced are included in either the grant from the Northern Pacific Railroad Company, or in the notice of declaration referred to.
As to the portion contained in the grant from the railroad, it is sufficient to say that this court has frequently decided that the act of congress creating the Northern Pacific Railroad Company was a grant of the odd sections within the forty-mile limit, with certain exceptions speci
We are also of the opinion that the fencing of the land which is included in -the declaration referred to does not come within the terms of the statute. That statute refers -to the “ inclosure of public lands, .... to any of which land included within the inclosure the person .... making .... the inclosure had no claim or color of title made or -acquired in good faith, or an asserted right thereto, by or under claim in good faith, with a view to the entry thereof at the proper land-office,” etc. It is admitted by the motion that all of the allegations in the answer are true; and thus the answer alleges “ an asserted right ” to the land, “ by or under claim in good faith, -with a view to the entry thereof at &h.e proper land-office.” The opinion of .Mr. Justice Hoffman already referred to is not reported. It treats fully of the purpose of the statute in question; and upon that the learned justice says: “That act, as the debates clearly show, was intended to prevent the inclosure and appropriation of vast tracts of public lands, said to be millions of acres in extent, by associations of wealthy cattle-owners, known as ‘cattle kings,’ without a shadow or pretense of title. These tracts were surrounded by barbed-wire fences, and all persons desirous of settling upon the lands under the Jaws of the United States were vigorously excluded; in some cases by violence or threats.”