The Act of February 25, 1885, c. 149, 23 Stat. 321, is within
the constitutional power of Congress to enact, and is valid.
The government of the United States has, with respect to its own
lands within the limits of a state, the rights of an ordinary
proprietor to maintain its possession, and to prosecute
trespassers, and may legislate for their protection, though such
legislation may involve the exercise of the police power, and may
complain of and take steps to prevent acts of individuals in
fencing in its lands, even though done for the purpose of
irrigation and pasturing.
Page 167 U. S. 519
This was a bill in equity, originally filed by the United States
in the Circuit Court for the District of Colorado, to compel the
removal and abatement of a fence erected and maintained by the
defendants whereby about 20,000 acres of public lands were enclosed
and appropriated to the exclusive use and benefit of the
defendants.
The bill averred in substance that the defendants Daniel A.
Camfield and William Drury, with intent to encroach and intrude
upon the lands of the United States in an illegal manner, and to
monopolize the use of the same for their own special benefit, did
on or about the 1st of January, 1893, construct and maintain a
fence which enclosed and included about 20,000 acres of the public
domain, that the effect of such enclosure was to exclude the United
States and all other persons except the defendants therefrom, and
that the lands thus wrongfully enclosed consisted of all of the
even-numbered sections in townships numbered 7 and 8 north, of
range 63 west, of the sixth principal meridian. The bill further
averred that said townships 7 and 8 lie within the limits of the
grant made by the government to the Union Pacific Railroad Company;
that the defendants had acquired from said railroad company the
right to use all the odd-numbered sections of land which lie within
said townships 7 and 8, and outside thereof, immediately adjacent
to the even-numbered sections lying within and on the margin of
said townships, and that, in building the fence complained of, the
defendants had constructed it entirely on odd-numbered sections,
either within or without townships 7 and 8, so as to completely
enclose all of the government lands aforesaid, but without locating
the fence on any part of the public domain so included.
The subjoined diagram of one township will serve to illustrate
the manner in which the fence was constructed so as to enclose the
even-numbered sections. The fence is indicated by the dotted
lines.
Page 167 U. S. 520
image:a
The defendants admitted by their answer that they had
constructed a fence so as to enclose all of the even-numbered
sections in townships 7 and 8, substantially as set out above in
the plaintiff's complaint, save and except that at each section
line a swinging gate had been placed to afford access to so much of
the public domain as was enclosed by the aforesaid fence. By their
answer, the defendants sought to justify the erection of the fence
in question upon the ground that they owned all the odd-numbered
sections in townships 7 and 8, and that they were engaged in
building large reservoirs for the purpose of irrigating the land by
them owned and much other land in that vicinity. They averred that
in carrying out such irrigation scheme, they found it necessary to
fence their lands in townships 7 and 8 in the manner above
described. They also denied that they had any intention of
monopolizing the even-numbered sections enclosed by said
Page 167 U. S. 521
fence, or to exclude the public therefrom, and further averred
in substance that the work in which they were engaged was of great
importance and utility, and would redound to the great advantage of
the United States and its citizens.
An exception was filed to the answer upon the ground that it was
insufficient to constitute a defense to the bill. This exception
was sustained, 59 F. 562, and, as the defendants declined to plead
further, a decree was entered in favor of the government, from
which decree the defendants appealed to the court of appeals, which
affirmed the judgment of the circuit court, 66 F. 101 and 67 F. 17.
Whereupon defendants appealed to this Court.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This case involves the construction and application of the Act
of Congress of February 25, 1885, entitled "An act to prevent
unlawful occupancy of the public lands." 23 Stat. 321. The first
section of the act reads as follows:
"That all enclosures of 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 enclosure the
person, party, association, or corporation making or controlling
the enclosure 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
enclosure was or shall be made, are hereby declared to be unlawful,
and the maintenance, erection, construction or control of any such
enclosure is hereby forbidden and prohibited, and the assertion of
a
Page 167 U. S. 522
right to the exclusive use and occupancy of any part of the
public lands of the United States in any state or any of the
territories of the United States, without claim, color of title or
asserted right, as above specified as to enclosure, is likewise
declared unlawful and hereby prohibited."
By section 2 of said act, it is made the duty of the district
attorney of the United States for the proper district, when
complaint is made to him by affidavit by any citizen of the United
States that section 1 of the act is being violated, to institute a
civil suit in the name of the United States in the proper United
States district or circuit court against the person or persons in
charge of or controlling the unlawful enclosure complained of. By
this section, jurisdiction is also conferred upon any United States
district or circuit court or territorial district court having
jurisdiction over the locality where the land enclosed or any part
thereof shall be situated to hear and determine proceedings in
equity, by writ of injunction, to restrain violations of the
provisions of the act. It is also made the duty of said courts, in
case any enclosure shall be found to be unlawful, to make the
proper order, judgment, or decree for the destruction of the same
in a summary way unless the enclosure shall be removed by the
parties complained of within five days after they are ordered to do
so.
Defendants are certainly within the letter of this statute. They
did enclose public lands of the United States to the amount of
20,000 acres, and there is nothing tending to show that they had
any claim or color of title to the same, or any asserted right
thereto under a claim made in good faith under the general laws of
the United States. The defense is, in substance, that if the act be
construed so as to apply to fences upon private property, it is
unconstitutional.
There is no doubt of the general proposition that a man may do
what he will with his own, but this right is subordinate to
another, which finds expression in the familiar maxim
sic utere
tuo ut alienum non laedas. His right to erect what he pleases
upon his own land will not justify him in maintaining a nuisance or
in carrying on a business or trade that is offensive to his
neighbors. Ever since
Aldred's Case, 9 Coke 57, it has
been
Page 167 U. S. 523
the settled law both of this country and of England that a man
has no right to maintain a structure upon his own land which by
reason of disgusting smells, loud or unusual noises, thick smoke,
noxious vapors, the jarring of machinery, or the unwarrantable
collection of flies, renders the occupancy of adjoining property
dangerous, intolerable, or even uncomfortable to its tenants. No
person maintaining such a nuisance can shelter himself behind the
sanctity of private property.
It is true that a man may build a fence upon his own land as
high as he pleases, even though it obstructs his neighbor's lights,
and the weight of authority is that his motives in so doing cannot
be inquired into, even though the fence be built expressly to annoy
and spite his neighbor, and that in this particular the law takes
no account of the selfishness or malevolence of individual
proprietors,
Mahan v. Brown, 13 Wend. 261;
Chatfield
v. Wilson, 28 Vt. 49;
Frazier v. Brown, 12 Ohio St.
294;
Pickard v. Collins, 23 Barb. 444;
Clinton v.
Myers, 46 N.Y. 511;
Phelps v. Nowlen, 72 N.Y. 39;
Walker v. Cronin, 107 Mass. 555, 564, although there are
many strong intimations to the contrary.
But the injustice of the prevailing doctrine upon this subject
in its practical operation became so manifest that, in 1887, the
Legislature of Massachusetts passed a statute declaring that any
fence
"unnecessarily exceeding six feet in height, maliciously erected
or maintained for the purpose of annoying the owners or occupants
of adjoining property,"
should be deemed a private nuisance, and that any such owner or
occupant who was thereby injured in his comfort, or in the quiet
enjoyment of his estate, might have an action of tort for the
damage. The constitutionality of this statute was attacked in the
case of
Rideout v. Knox, 148 Mass. 368, but upon full
consideration, the Supreme Judicial Court was of opinion that the
statute was within the limits of the police power, and was
constitutional, and, although the fence was not directly injurious
to the public at large, there was a public interest to restrain
this kind of aggressive annoyance of one neighbor by another, and
to mark a definite limit, beyond which it was not lawful to go. The
court also held the statute to be constitutional with reference
Page 167 U. S. 524
to fences already in existence when the act was passed; that,
although it involved, to a certain extent, the taking of property
without compensation, yet,
"having regard to the smallness of the injury, the nature of the
evil to be avoided, the
quasi-accidental character of the
defendant's right to put up a fence for malevolent purposes, and
also to the fact that police regulations may limit the use of
property in ways which greatly diminish its value,"
the court was of opinion that the act was constitutional to the
full extent of its provisions. The case is authority for the
proposition that the police power is not subject to any definite
limitations, but is coextensive with the necessities of the case
and the safeguard of the public interests. Apparently, the
principal doubt entertained by the court was whether the
maintenance of a private fence could be said to be "injurious to
the public at large," but it seems to have been of opinion that
such a nuisance might give rise to disputes and bickerings
prejudicial to the peace and good order of the community.
While the lands in question are all within the State of
Colorado, the government has, with respect to its own lands, the
rights of an ordinary proprietor to maintain its possession and to
prosecute trespassers. It may deal with such lands precisely as a
private individual may deal with his farming property. It may sell
or withhold them from sale. It may grant them in aid of railways or
other public enterprises. It may open them to preemption or
homestead settlement, but it would be recreant to its duties as
trustee for the people of the United States to permit any
individual or private corporation to monopolize them for private
gain, and thereby practically drive intending settlers from the
market. It needs no argument to show that the building of fences
upon public lands with intent to enclose them for private use would
be a mere trespass, and that such fences might be abated by the
officers of the government or by the ordinary processes of courts
of justice. To this extent, no legislation was necessary to
vindicate the rights of the government as a landed proprietor.
But the evil of permitting persons who owned or controlled the
alternate sections to enclose the entire tract, and thus to
Page 167 U. S. 525
exclude or frighten off intending settlers, finally became so
great that Congress passed the Act of February 25, 1885, forbidding
all enclosures of public lands and authorizing the abatement of the
fences. If the act be construed as applying only to fences actually
erected upon public lands, it was manifestly unnecessary, since the
government, as an ordinary proprietor, would have the right to
prosecute for such a trespass. It is only by treating it as
prohibiting all "inclosures" of public lands, by whatever means,
that the act becomes of any avail. The device to which defendants
resorted was certainly an ingenious one, but it is too clearly an
evasion to permit our regard for the private rights of defendants
as landed proprietors to stand in the way of an enforcement of the
statute. So far as the fences were erected near the outside line of
the odd-numbered sections, there can be no objection to them; but
so far as they were erected immediately outside the even-numbered
sections, they are manifestly intended to enclose the government's
lands, though in fact erected a few inches inside the defendants'
line. Considering the obvious purposes of this structure, and the
necessities of preventing the enclosure of public lands, we think
the fence is clearly a nuisance, and that it is within the
constitutional power of Congress to order its abatement
notwithstanding such action may involve an entry upon the lands of
a private individual. The general government doubtless has a power
over its own property analogous to the police power of the several
states, and the extent to which it may go in the exercise of such
power is measured by the exigencies of the particular case. If it
be found to be necessary, for the protection of the public or of
intending settlers, to forbid all enclosures of public lands, the
government may do so, though the alternate sections of private
lands are thereby rendered less available for pasturage. The
inconvenience, or even damage, to the individual proprietor does
not authorize an act which is in its nature a purpresture of
government lands. While we do not undertake to say that Congress
has the unlimited power to legislate against nuisances within a
state which it would have within a territory, we do not think the
admission of a territory as a state deprives
Page 167 U. S. 526
it of the power of legislating for the protection of the public
lands, though it may thereby involve the exercise of what is
ordinarily known as the "police power," so long as such power is
directed solely to its own protection. A different rule would place
the public domain of the United States completely at the mercy of
state legislation.
We are not convinced by the argument of counsel for the railway
company, who was permitted to file a brief in this case, that the
fact that a fence built in the manner indicated will operate
incidentally or indirectly to enclose public lands is a necessary
result -- which Congress must have foreseen when it made the grants
-- of the policy of granting odd sections and retaining the even
ones as public lands, and that if such a result inures to the
damage of the United States, it must be ascribed to their
improvidence and carelessness in so surveying and laying off the
public lands that the portion sold and granted by the government
cannot be enclosed by the purchasers without embracing also in such
enclosure the alternate sections reserved by the United States.
Carried to its logical conclusion, the inference is that, because
Congress chose to aid in the construction of these railroads by
donating to them all the odd-numbered sections within certain
limits, it thereby intended incidentally to grant them the use for
an indefinite time of all the even-numbered sections. It seems but
an ill return for the generosity of the government in granting
these roads half its lands to claim that it thereby incidentally
granted them the benefit of the whole.
The government has the same right to insist upon its
proprietorship of the even-numbered sections that an individual has
to claim the odd sections, and if such proprietor would have the
right to complain of the government's fencing in his lands in the
manner indicated and leasing them for pasturage, the government has
the same right to complain of a similar action upon his part. If
there be any general impression that, in dealing with public lands,
the rights are altogether those of the individual proprietors, and
that such rights as the government has exist only by their
sufferance, the act in question will do much to rectify this
misapprehension.
Page 167 U. S. 527
These grants were made in pursuance of the settled policy of the
government to reserve to itself the even-numbered sections for sale
at an increased price, and if the defendants in this case chose to
assume the risk of purchasing the odd-numbered sections of the
railroad company for pasturage purposes without also purchasing or
obtaining the consent of the government to use the even-numbered
sections, and thereby failed to derive a benefit from the
odd-numbered ones, they must call upon their own indiscretion to
answer for their mistake. The law and the practice of the
government were perfectly well settled, and, if it had chosen in
the past to permit by tacit acquiescence the pasturage of its
public lands, it was a policy which it might change at any moment,
and which became the subject of such abuses that Congress finally
felt itself compelled to pass the Act of February 25, 1885. and
thereby put an end to them. It was not intended, however, to
prohibit altogether the pasturage of public lands, or to reverse
the former practice of the government in that particular. Indeed,
we know of no reason why the policy, so long tolerated, of
permitting the public lands to be pastured may not be still
pursued, provided herdsmen be employed, or other means adopted by
which the fencing in and the exclusive appropriation of such land
shall be avoided. The defendants were bound to know that the
sections they purchased of the railway company could only be used
by them in subordination to the right of the government to dispose
of the alternate sections as it seemed best, regardless of any
inconvenience or loss to them, and were bound to avoid obstructing
or embarrassing it in such disposition. If practices of this kind
were tolerated, it would be but a step further to claim that the
defendants, by long acquiescence of the government in their
appropriation of public lands, had acquired a title to them as
against everyone except the government, and perhaps even against
the government itself.
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 from the even-numbered
Page 167 U. S. 528
sections -- since this was a contingency which the government
was bound to contemplate in granting away the odd-numbered
sections. So long as the individual proprietor confines his
enclosure 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 enclosing his own land, he builds a fence which is useless
for that purpose, and can only have been intended to enclose 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. It may be added, however, that this is
scarcely a practical question, since a separate enclosure of each
section would only become desirable when the country had been
settled and roads had been built which would give access to each
section.
It is equally immaterial that the defendants have undertaken to
build large reservoirs for water to be supplied for the irrigation
of its lands, or that they have proceeded in accordance with the
act of Congress in acquiring the necessary sites to be used in the
construction of such reservoirs, or that they have expended large
sums of money in providing for this improvement. If they have
enclosed the public lands in violation of the statute, it is no
answer to say that they have enclosed them for irrigating as well
as for pasturage purposes. The violation of the statute is
nonetheless manifest from the fact that the defendants had an
ulterior purpose, or a purpose other than that of pasturage.
We are of opinion that, in passing the act in question, Congress
exercised its constitutional right of protecting the public lands
from nuisances erected upon adjoining property, that the act is
valid, and that the judgment of the circuit court of appeals must
be
Affirmed.