There is an implied license, growing out of the custom of nearly
one hundred years, 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 where they are left open and unenclosed
and no act of the government forbids their use.
During the progress of the settlement of the newer parts of the
country, the rule that the owner of domestic animals should keep
them confined within his own grounds, and should be liable for
their trespasses upon unenclosed land of his neighbor, has nowhere
prevailed, but, on the contrary, his right to permit them, when not
dangerous, to run at large without responsibility for their getting
upon such land of his neighbor has been universally conceded, and
is a part of the statute law of Utah. Comp.Laws § 2234.
In equity. The bill was dismissed and the plaintiffs appealed.
The case is stated in the opinion.
Page 133 U. S. 321
MR. JUSTICE MILLER delivered the opinion of the Court.
This is an appeal from the Supreme Court of the Territory of
Utah.
The bill was originally filed by the appellants in the third
Judicial District Court of Utah Territory in and for Salt Lake
County, and in that court a demurrer was filed setting forth two
grounds of objection to the bill -- first that it does not state
facts sufficient to constitute a cause of action, and second that
several causes of action have been improperly united in this, that
said complaint states a separate cause of action against each
individual defendant, and nowhere states or attempts to state a
cause of action against all of the defendants. This demurrer was
sustained and a decree rendered dismissing the bill at the costs of
plaintiffs, and on appeal to the supreme court of the territory
that decree was affirmed.
The case is here on an appeal from that judgment. The
complainants were M. B. Buford, J. W. Taylor, Charles Crocker, and
George Crocker, co-partners under the firm name and style of the
Promontory Stock Ranch Company. The defendants were John S. Houtz
and Henry and Edward Conant, under the firm name and style of Houtz
& Conant, the Box Elder Stock & Mercantile Company, a
corporation, and twenty individuals whose names are given in the
bill.
The plaintiffs allege that they are the owners of certain
sections and parts of sections of land in the Territory of Utah,
which they describe specifically by the numbers and the style of
their congressional subdivisions, very much of which is derived
from the Central Pacific Railroad Company, to which they were
granted by the Congress of the United States. These lands were
alternate sections of odd numbers according to the congressional
grant to the railroad company, and they, with the other tracts
mentioned in the plaintiffs' bill, are said
Page 133 U. S. 322
to amount to over 350,000 acres, "and extend over an area of
forty miles in a northerly and a southerly direction, by about
thirty-six miles in an easterly and westerly direction."
The allegation is that these lands are very valuable for
pasturage and the grazing of stock and are of little or no value
for any other purpose, and were held by the plaintiffs, and are now
held by them for that purpose solely. That, owing to their
character, the scarcity of water, and the aridity of the climate
where these lands are situated, they can never be subjected to any
beneficial use other than the grazing of stock. That plaintiffs own
and are possessed of large numbers of horned cattle, to-wit, 20,000
head, of the value of $100,000, and are engaged in the sole
business of stock raising. That for a long time they have had, and
now have, all said cattle running and grazing upon these lands.
That all the even-numbered sections in each and all of the
townships and fractional townships above mentioned belong to and
are part of the public domain of the United States. That the
defendants have not, nor has either of them, any right, title,
interest, or possession or right of possession of or to any of the
lands embraced in any of the townships or fractional townships
above mentioned, nor have they ever had any such right, title,
interest, or possession. That none of the lands included within
said townships or fractional townships are fenced or enclosed
except a small portion owned by plaintiffs, which they have
heretofore enclosed with fences for use as corrals, within which to
gather from time to time their cattle in order to brand the young
thereof. They allege that for various reasons they cannot fence and
enclose their lands without enclosing large portions of the lands
of the United States and without rendering large and valuable
portions of their own of no value by reason of the shutting off and
preventing their own cattle from obtaining necessary water. That
the defendants Houtz & Conant, now and for a long time past,
have owned a large number, to-wit, 15,000 head, of sheep, and each
of the other defendants to this action is now and for a long time
past has been the owner of a large flock or herd of sheep. The
smallest number owned by any one party exceeds, as plaintiff
believes,
Page 133 U. S. 323
5,000, and the aggregate number of sheep so held exceeds
200,000.
It is then alleged that the official survey of the United States
has been extended over all land within the townships and fractional
townships mentioned in the bill, and that there are seven well
defined and well known traveled highways over those lands, four of
which run in a northerly and southerly direction and three in an
easterly and westerly direction, entirely across the lands embraced
in said townships and fractional townships, along which the sheep
of the defendants may be driven without injury to plaintiffs'
lands, notwithstanding which each of said defendants claims and
asserts that he has the lawful right and is entitled to drive all
sheep owned by him over and across any of said lands of these
plaintiffs, and to pasture and graze his sheep thereon whenever and
wherever he may desire so to do. That all of said defendants
respectively rely upon and set up a common, though not a joint,
pretended right to drive, graze, and pasture their sheep thereon,
and each of said defendants bases his pretended right to drive,
graze, and pasture his sheep upon the lands of the plaintiffs upon
precisely the same state of facts as that relied upon by each of
the other defendants. That is to say, each of said defendants
claims that, all the even-numbered sections in each of said
townships and fractional townships being unoccupied public domain
of the United States, he has an implied license from the government
of the United States to drive, graze, and pasture his sheep
thereon, and that he cannot do this without having them run, graze,
and pasture upon the lands of the plaintiffs. Therefore each of
said defendants claims and asserts that he is entitled to have his
said sheep run, graze, and pasture upon the lands of the plaintiffs
as aforesaid, and that during the year past, each of said
defendants did repeatedly drive large bands and herds of sheep
over, upon, and across the lands of these plaintiffs and graze and
pasture the same thereon, to the great injury and damage of the
said plaintiffs, and that they and each of them threaten to
continue to do this, and will do it unless restrained by order of
the court.
It is then alleged that the sheep, in grazing upon the
lands,
Page 133 U. S. 324
do it a permanent injury and drive away the cattle from such
lands, whereby, if the defendants are permitted to drive and
pasture their sheep on the lands of the plaintiffs, those lands
will be greatly damaged, and, for a long period of time in the
future, rendered valueless for the purpose of grazing and pasturing
their cattle. They then allege that they have no adequate way of
estimating the damage which they will suffer should defendants, or
either of them, do as they have threatened to do, as herein stated,
for the reason, among others, that the destruction of the food,
grasses, and herbage on plaintiffs' lands will result in depriving
plaintiffs' cattle of necessary food, thereby causing great
deterioration in flesh and consequent value, which loss and
deterioration cannot be adequately determined by witnesses, which
will result in the destruction of plaintiffs' business, will waste
and impair their freehold, and obstruct them and each of them in
the use of their said property. They allege, therefore, that they
have no plain, adequate, and speedy remedy at law, and that it will
be impossible to establish the amount of damages which said
plaintiffs will suffer by the wrong or trespass of any particular
one of said defendants.
The prayer of the plaintiffs is for a judgment and decree of the
court:
1st. That said defendants have not, nor has either of them, any
right of way for any of his or their sheep over said lands of
plaintiffs, or any part thereof, except over and along the highways
aforesaid; that they have not, nor has either of them, any right to
graze or pasture any of his or their sheep thereon, or on any part
thereof.
2d. That, pending this action, said defendants and each of them,
their and each of their agents, servants, and employees, be
enjoined from driving any of his or their sheep upon any of said
lands, except over and along said highways, or permitting any of
them to go, graze, or pasture thereon, and that upon the final
decree herein said injunction be made perpetual.
3rd. For such other and further relief as may be just and
equitable, together with their costs in this behalf incurred.
The supreme court of the territory, in affirming the
judgment
Page 133 U. S. 325
of the Court of the Third Judicial District, did not consider
the question of the misjoinder of defendants, but rested its
judgment upon the want of equity in the bill. It might be difficult
to sustain a bill which, like this, united fifteen or twenty
different defendants, to restrain them from committing a trespass
where, if the parties are guilty or should attempt to commit the
trespass, they do it without concert of action at different times,
in different parts of a large district of country such as here
described, and each in his own way, and by his own action, or that
of his servants. But, waiving this question, we are of opinion that
the bill has no equity in it.
The appellants being stock-raisers like the defendants, whose
stock are raised and fattened on the unoccupied lands of the United
States mainly, seek by the purchase and ownership of parts of these
lands, detached through a large body of the public domain, to
exclude the defendants from the use of this public domain as a
grazing ground, while they themselves appropriate all of it to
their own exclusive use. This they propose to do not by any act of
Congress or of any legislative body whatever, but by means of this
bill in chancery, obtaining an injunction against the defendants,
who they allege to be the owners of 200,000 sheep grazing upon
these public lands, which shall exclude defendants from the use of
them, and thereby secure to themselves the exclusive right to
pasture their 20,000 head of cattle upon the same lands.
If we look at the condition of the ownership of these lands on
which the plaintiffs rely for relief, we are still more impressed
with the injustice of this attempt. A calculation of the area from
which it is proposed to exclude the defendants by this injunction,
under the allegation that it is forty miles in one direction and
thirty-six in another, shows that it embraces 1,440 square miles,
or 921,000 acres, all of which, as averred by the bill, is
unenclosed and unoccupied except for grazing purposes. Of this
921,000 acres of land, the plaintiffs only assert title to 350,000
acres -- that is to say, being the owners of one-third of this
entire body of land, which ownership attaches to different sections
and quarter sections scattered through the whole body of it, they
propose by excluding the
Page 133 U. S. 326
defendants to obtain a monopoly of the whole tract, while
two-thirds of it is public land belonging to the United States, in
which the right of all parties to use it for grazing purposes, if
any such right exists, is equal. The equity of this proceeding is
something which we are not able to perceive.
It seems to be founded upon the proposition that while they, as
the owners of the 350,000 acres thus scattered through the whole
area, are to be permitted for that reason to exercise the right of
grazing their own cattle upon all of the land embraced within these
1,440 square miles, the defendants cannot be permitted to use even
the lands belonging to the United States, because in doing this
their cattle will trespass upon the unenclosed lands of plaintiffs.
In other words, they seek to introduce, into the vast regions of
the public domain which have been open to the use of the herds of
stock-raisers for nearly a century without objection, the principle
of law derived from England, and applicable to highly cultivated
regions of country, that every man must restrain his stock within
his own grounds, and if he does not do so, and they get upon the
unenclosed grounds of his neighbor, it is a trespass for which
their owner is responsible.
We are of opinion that there is an implied license, growing out
of the custom of nearly a hundred years, 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 where they are left open
and unenclosed and no act of government forbids this use. For many
years past, a very large proportion of the beef which has been used
by the people of the United States is the meat of cattle thus
raised upon the public lands without charge, without let or
hindrance or obstruction. The government of the United States in
all its branches has known of this use, has never forbidden it nor
taken any steps to arrest it. No doubt it may be safely stated that
this has been done with the consent of all branches of the
government, and, as we shall attempt to show, with its direct
encouragement.
The whole system of the control of the public lands of the
Page 133 U. S. 327
United States, as it has been conducted by the government under
acts of Congress, shows a liberality in regard to their use which
has been uniform and remarkable. They have always been open to sale
at very cheap prices. Laws have been enacted authorizing persons to
settle upon them, and to cultivate them, before they acquire any
title to them. While in the incipiency of the settlement of these
lands by persons entering upon them, the permission to do so was a
tacit one, the exercise of this permission became so important that
Congress, by a system of laws called the "Preemption Laws,"
recognized this right so far as to confer a priority of the right
of purchase on the persons who settled upon and cultivated any part
of this public domain. During the time that the settler was
perfecting his title by making the improvements which that statute
required and paying, by installments or otherwise, the money
necessary to purchase it, both he and all other persons who desired
to do so had full liberty to graze their stock upon the grasses of
the prairies, and upon other nutritious substances found upon the
soil.
The value of this privilege grew as the population increased and
it became a custom for persons to make a business or pursuit of
gathering herds of cattle or sheep and raising them and fattening
them for market upon these unenclosed lands of the government of
the United States. Of course the instances became numerous in which
persons purchasing land from the United States put only a small
part of it in cultivation, and permitted the balance to remain
unenclosed and in no way separated from the lands owned by the
United States. All the neighbors who had settled near one of these
prairies or on it, and all the people who had cattle that they
wished to graze upon the public lands, permitted them to run at
large over the whole region, fattening upon the public lands of the
United States and upon the unenclosed lands of the private
individual without let or hindrance. The owner of a piece of land
who had built a house or enclosed twenty or forty acres of it had
the benefit of this universal custom as well as the party who owned
no land. Everybody used the open, unenclosed country which produced
nutritious grasses as a public common on
Page 133 U. S. 328
which their horses, cattle, hogs, and sheep could run and
graze.
It has never been understood that in those regions and in this
country, in the progress of its settlement, the principle prevailed
that a man was bound to keep his cattle confined within his own
grounds, or else would be liable for their trespasses upon the
unenclosed grounds of his neighbors. Such a principle was ill
adapted to the nature and condition of the country at that time.
Owing to the scarcity of means for enclosing lands and the great
value of the use of the public domain for pasturage, it was never
adopted or recognized as the law of the country except as it might
refer to animals known to be dangerous and permitted to go where
their dangerous character might produce evil results. Indeed, it is
only within a few years past, as the country has been settled and
become highly cultivated, all the land nearly being so used by its
owners or by their tenants, that the question of compelling the
owner of cattle to keep them confined has been the subject of
agitation.
Nearly all the states in early days had what was called the
"Fence Law" -- a law by which a kind of fence sufficient in a
general way to protect the cultivated ground from cattle and other
domestic animals which were permitted to run at large was
prescribed. The character of this fence in most of the statutes was
laid down with great particularity, and unless it was in strict
conformity to the statute, there was no liability on the part of
the owner of cattle if they invaded the enclosure of a party and
inflicted injury on him. If the owner of the enclosed ground had
his fence constructed in accordance with the requirements of the
statute, the law presumed then that an animal which invaded this
enclosure was what was called a "breachy" animal, was not such
animal as should be permitted to go at large, and the owner was
liable for the damages done by him. Otherwise the right of the
owner of all domestic animals to permit them to run at large
without responsibility for their getting upon the lands of his
neighbor was conceded.
The Territory of Utah has now and has always had a similar
statute, section 2234 of the Compiled Laws of Utah,
Page 133 U. S. 329
1888, Vol. I, p. 789. It is now a matter of occasional
legislation in the states which have been created out of this
public domain to permit certain counties, or parts of the state, or
the whole of the state, by a vote of the people within such
subdivisions, to determine whether cattle shall longer be permitted
to run at large and the owners of the soil compelled to rely upon
their fences for protection, or whether the cattle owner shall keep
them confined, and in that manner protect his neighbor without the
necessity on the part of the latter of relying upon fences which he
may make for such protection.
Whatever policy may be the result of this current agitation can
have no effect upon the present case, as the law of Utah and its
customs in this regard remain such as we have described it to be in
the general region of the northwest, and the privileges accorded by
the United States for grazing upon her public lands are subject
alone to their control.
These principles were very clearly enunciated by the Supreme
Court of Ohio, in 1854, in the case of
Kerwhacker v. The C. C.
& C. Railroad Company, 3 Ohio St. 172, 178-179. In
discussing this question, the court expresses so well the principle
which we are considering that we venture to make an extensive
quotation from the opinion:
"Admitting the rule of the common law of England in relation to
cattle and other livestock running at large to be such as stated,
the question arises whether it is applicable to the condition and
circumstances of the people of this state, and in accordance with
their habits, understandings, and necessities. If this be the law
in Ohio now, it has been so since the first settlement of the
state, and every person who has allowed his stock to run at large
and go upon the unenclosed grounds of others has been a wrongdoer,
and liable to an action for damages by every person on whose lands
his creatures may have wandered. What has been the actual situation
of affairs, and the habits, understandings, and necessities of the
people of this state from its first settlement up to the present
period in this respect? Cattle, hogs, and all other kinds of
livestock not known to be breachy and unruly or dangerous have been
allowed at all times and in all parts of the state to run at
Page 133 U. S. 330
large and graze on the range of uncultivated and unenclosed
lands. . . . So that it has been the general custom of the people
of this state since its first settlement to allow their cattle,
hogs, horses, etc., to run at large and range upon the unenclosed
lands of the neighborhood in which they are kept, and it has never
been understood by them that they were tortfeasors, and liable in
damages for letting their stock thus run at large. The existence or
enforcement of such a law would have greatly retarded the
settlement of the country, and have been against the policy of both
the general and the state governments."
"The common understanding upon which the people of this state
have acted since its first settlement has been that the owner of
land was obliged to enclose it with a view to its cultivation; that
without a lawful fence, he could not, as a general thing, maintain
an action for a trespass thereon by the cattle of his neighbor
running at large, and that to leave uncultivated lands unenclosed
was an implied license to cattle and other stock at large to
traverse and graze them. Not only, therefore, was this alleged rule
of the common law inapplicable to the circumstances and condition
of the people of this state, but inconsistent with the habits, the
interests, necessities, and understanding of the people."
In the case of
Seeley v. Peters, 5 Gilman 142, in the
Supreme Court of Illinois, in 1848 (six years earlier than the Ohio
case), the court, in reference to the same subject, by Judge
Trumbull, uses the following language:
"Perhaps there is no principle of the common law so inapplicable
to the condition of our country and people as the one which is
sought to be enforced now for the first time since the settlement
of the state. It has been the custom in Illinois, so long that the
memory of man runneth not to the contrary, for the owners of stock
to suffer them to run at large. Settlers have located themselves
contiguous to prairies for the very purpose of getting the benefit
of the range. The right of all to pasture their cattle upon
unenclosed ground is universally conceded. No man has questioned
this right, although hundreds of cases must have occurred where the
owners of cattle
Page 133 U. S. 331
have escaped the payment of damages on account of the
insufficiency of the fences through which their stock have broken,
and never till now has the common law rule, that the owner of
cattle is bound to fence them up, been supposed to prevail or to be
applicable to our condition. The universal understanding of all
classes of the community, upon which they have acted by enclosing
their crops and letting their cattle run at large, is entitled to
no little consideration in determining what the law is, and we
should feel inclined to hold, independent of any statutes upon the
subject on account of the inapplicability of the common law rule to
the condition and circumstances of our people, that it does not and
never has prevailed in Illinois. But it is unnecessary to assume
that ground in this case. The legislation upon this subject, from
the time when we were a part of the Indiana Territory down to the
last law contained in the Revised Statutes, clearly shows that the
legislature never supposed that this rule of the common law
prevailed in Illinois or intended that it should."
The same principle is asserted in the case of
Comerford v.
Dupuy, 17 Cal. 310, and in the case of
Logan v.
Gedney, 38 Cal. 579, the court distinctly held that
"the rule of the common law of England, that every man is bound
to keep his beasts within his own close under the penalty of
answering in damages for all injuries resulting from their being
permitted to range at large never was the law in California."
This decision is the more in point, as California, like Utah,
was acquired from Mexico by the same treaty.
See also Studwell
v. Ritch, 14 Conn. 293.
As evidence of the liberality with which the government of the
United States has treated the entire region of country acquired
from Mexico by the Treaty of Guadalupe Hidalgo, it is only
necessary to refer to the fact that while, by the laws of Mexico,
every discoverer of a mine of the precious metals was compelled to
pay a certain royalty to the government for the use of the mine in
extracting its minerals, as soon as the country came under the
control of the United States, an unlimited right of mining by every
person who chose to enter
Page 133 U. S. 332
upon and take the risks of the business was permitted, without
objection and without compensation to the government, and while
this remained for many years as a right resting upon the tacit
assent of the government, the principle has been since incorporated
into the positive legislation of Congress, and today the larger
part of the valuable mines of the United States are held by
individuals under the claim of discovery, without patent or any
other instrument from the government of the United States granting
this right, and without tax or compensation paid to the government
for the use of the precious metals.
As showing this extreme liberality on the part of the general
government, reference may be had to the case of
Forbes v.
Gracey, 94 U. S. 762. In
that case, a mining company which had no title whatever from the
United States, and which was taking out mineral ore of immense
value from the lands of the United States, sought to enjoin the
State of Nevada from taxing the ore thus taken on the ground that
it was the property of the United States, and not taxable by the
State of Nevada. But this Court, reverting to the liberality of the
government in that regard, decided that the moment the ore became
detached from the main vein in which it was embedded in the mine,
it became the property of the miner, the United States having no
interest in it, and was therefore subject to state taxation.
Upon the whole, we see no equity in the relief sought by the
appellants in this case, which undertakes to deprive the defendants
of this recognized right to permit their cattle to run at large
over the lands of the United States and feed upon the grasses found
in them while, under pretense of owning a small proportion of the
land which is the subject of controversy, they themselves obtain
the monopoly of this valuable privilege.
The decree of the Supreme Court of Utah is therefore
Affirmed.