MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This cause is before this court on appeal from an order of the district court of Lewis and Clark county, refusing to dissolve an injunction pendente lite. The writ was issued upon the verified complaint alone, which states three causes of action, namely, for a trespass alleged to have been committed by the defendants in the summer of 1903; for a like trespass committed in the winter of 1903 and 1904; and for an injunction to restrain further trespasses, which it is alleged are threatened, until the rights of the parties may be finally adjudged.
The plaintiff in his third cause of action alleges, in substance, that on or about January 1,. 1903, he secured from the state of Montana, through the officers of its land department, a lease of section 16, township 16 north of range 3 west, in Lewis and Clark county; that he paid to the state the annual rental therefor, and went into the actual and peaceable possession thereof; that he is now in possession and is, and has been, entitled to such possession since the date mentioned; that within the past thirty days, the plaintiff being in the actual and peaceable possession as aforesaid, the defendants have cut the wire fence erected by plaintiff enclosing said land, have torn «down the gates leading to the same, and have removed the lower wire of the fencé for the purpose of driving their sheep thereon, and are about to take possession of the land for the season of 1905, and to depasture the same with their sheep; that the defendants, as plaintiff is informed and believes, are insolvent and unable to respond in damages; that the plaintiff has arranged to graze on the said land, for the year 1905, registered cattle and standard bred horses; that he has no other place where he can graze the said cattle and horses; that they cannot be turned out upon the open range without coming in contact with ordinary range stock; that if he is compelled by the action of defendants to turn them upon the open range, it will impair their value and usefulness for breeding purposes for the season of 1905; and that, if the defendants are allowed to continue their [325]*325trespasses in breaking down tbe enclosure aforesaid, tbe land of the plaintiff will be depastured and tbe plaintiff will be compelled to allow bis said stock to run at large upon tbe common range, at a loss to him of from $4,000 to $5,000.
Tbe complaint was filed and tbe injunction issued on June 20, 1905. On July 22, 1905, the court beard tbe motion of defendants for a dissolution of the writ. It was based upon tbe ground, among others, that tbe plaintiff bad no interest in tbe lands, and premises described in tbe complaint. Tbe defendants filed a demurrer to tbe complaint. Tbe motion was beard upon tbe complaint, affidavits and documentary evidence, tbe allegations of tbe complaint being admitted, except that tbe defendants are insolvent. This is controverted. After consideration of tbe evidence submitted, tbe motion was denied. Tbe evidence showed that tbe lands in controversy are a part of tbe unsurveyed public domain; that on or about January 1, 1903, tbe plaintiff, having obtained an alleged lease of them from tbe register of tbe state land office, at once entered into possession and erected a four-wire fence, enclosing tbe lands for tbe purpose of pasturing tbe stock mentioned in tbe complaint; that bis lease was renewed for the year 1904, but not for tbe year 1905, because such renewal, though requested by plaintiff, was refused; and that plaintiff has no other right to tbe possession than such as be obtained by virtue of his enclosure made under tbe alleged lease from tbe state of Montana for tbe years 1903 and 1904.
Tbe question presented for determination therefore is: Whether a person, by enclosing portions of tbe public domain, thereby acquires such a right therein as will enable him to protect bis possession against repeated trespasses thereon by other persons having an equal right to tbe use and enjoyment thereof. Incidentally, also, arises the question whether tbe state acquires such a right, under its grant from tbe United States government of lands in aid of common schools, as to enable it, prior to tbe official survey by tbe United States, and tbe approval of the plat by tbe commissioner of tbe land office of tbe United States, to lease tbe lands so granted, and thus give a [326]*326right to a citizen of the state to the use and enjoyment thereof, to the exclusion of other citizens.
The question of the right of the state to make sales or valid leases of lands granted to it for school purposes by the United States, prior to the official survey thereof, is referred to as incidental, because the respondent does not, in this court, rely, except incidentally, upon a lease from the state for the protection of his alleged right to the exclusive use of the lands in controversy. He relies mainly upon his actual, peaceable possession of the land as a part of the public domain. He concedes that it is unsurveyed and that, until it is surveyed, the state has no title which it may convey; and this concession we think properly made. For it seems to be the rule, applicable to such grants, that, though they operate for some purposes as grants m praesenti, conveying the fee, yet, until the official survey is made and the plat has been approved by the federal authorities, the grant is not effective to vest title to any specific portion of the land described by the designation of section numbers only. (Middleton v. Low, 30 Cal, 596; Medley v. Robertson et al., 55 Cal. 396; Linn v. Scott, 3 Tex. 67; United States v. Montana L. & M. Co., 196 U. S. 573, 25 Sup. Ct. 367, 49 L. Ed. 604.) Even a partial survey of the particular section is not sufficient to identify it. (United States v. Birdseye, 137 Fed. 516.) The reason of the rule is that, until the subject of the grant is identified, there is no particular portion of the great body of lands in which it is included to which the state may assert title, or over which it can exercise exclusive right. The concession logically carries with it the further concession that, for the same reason, the state may not carve out of the subject of the grant a less estate than the fee and convey that. In other words, if it cannot, for the reasons stated, convey the fee, it may not for the same reason grant a lease.
So far as we are aware, the state has never by any legislation assumed, or attempted to assume, control of unsurveyed school lands. So we are relieved of the necessity of discussing further any right of the-plaintiff founded upon a lease from the state; [327]*327for, though the respondent contends that even if the state cannot convey title, yet, since he went into possession and erected his enclosure under a lease which the state assumed to execute, he is in possession under color of title, it is apparent that this lease could have no efficiency whatever as a protection for his unlawful occupation.
We therefore pass to the question presented for decision, to-wit: May one citizen unlawfully enclose a portion of the public domain and protect his possession, thus acquired and held against the trespasses of another citizen who also has right of entry thereon, by invoking the injunctive power of a court of equity? That the enclosure of the plaintiff is violative of the statute of the United States prohibiting the fencing of public land is clear.
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This cause is before this court on appeal from an order of the district court of Lewis and Clark county, refusing to dissolve an injunction pendente lite. The writ was issued upon the verified complaint alone, which states three causes of action, namely, for a trespass alleged to have been committed by the defendants in the summer of 1903; for a like trespass committed in the winter of 1903 and 1904; and for an injunction to restrain further trespasses, which it is alleged are threatened, until the rights of the parties may be finally adjudged.
The plaintiff in his third cause of action alleges, in substance, that on or about January 1,. 1903, he secured from the state of Montana, through the officers of its land department, a lease of section 16, township 16 north of range 3 west, in Lewis and Clark county; that he paid to the state the annual rental therefor, and went into the actual and peaceable possession thereof; that he is now in possession and is, and has been, entitled to such possession since the date mentioned; that within the past thirty days, the plaintiff being in the actual and peaceable possession as aforesaid, the defendants have cut the wire fence erected by plaintiff enclosing said land, have torn «down the gates leading to the same, and have removed the lower wire of the fencé for the purpose of driving their sheep thereon, and are about to take possession of the land for the season of 1905, and to depasture the same with their sheep; that the defendants, as plaintiff is informed and believes, are insolvent and unable to respond in damages; that the plaintiff has arranged to graze on the said land, for the year 1905, registered cattle and standard bred horses; that he has no other place where he can graze the said cattle and horses; that they cannot be turned out upon the open range without coming in contact with ordinary range stock; that if he is compelled by the action of defendants to turn them upon the open range, it will impair their value and usefulness for breeding purposes for the season of 1905; and that, if the defendants are allowed to continue their [325]*325trespasses in breaking down tbe enclosure aforesaid, tbe land of the plaintiff will be depastured and tbe plaintiff will be compelled to allow bis said stock to run at large upon tbe common range, at a loss to him of from $4,000 to $5,000.
Tbe complaint was filed and tbe injunction issued on June 20, 1905. On July 22, 1905, the court beard tbe motion of defendants for a dissolution of the writ. It was based upon tbe ground, among others, that tbe plaintiff bad no interest in tbe lands, and premises described in tbe complaint. Tbe defendants filed a demurrer to tbe complaint. Tbe motion was beard upon tbe complaint, affidavits and documentary evidence, tbe allegations of tbe complaint being admitted, except that tbe defendants are insolvent. This is controverted. After consideration of tbe evidence submitted, tbe motion was denied. Tbe evidence showed that tbe lands in controversy are a part of tbe unsurveyed public domain; that on or about January 1, 1903, tbe plaintiff, having obtained an alleged lease of them from tbe register of tbe state land office, at once entered into possession and erected a four-wire fence, enclosing tbe lands for tbe purpose of pasturing tbe stock mentioned in tbe complaint; that bis lease was renewed for the year 1904, but not for tbe year 1905, because such renewal, though requested by plaintiff, was refused; and that plaintiff has no other right to tbe possession than such as be obtained by virtue of his enclosure made under tbe alleged lease from tbe state of Montana for tbe years 1903 and 1904.
Tbe question presented for determination therefore is: Whether a person, by enclosing portions of tbe public domain, thereby acquires such a right therein as will enable him to protect bis possession against repeated trespasses thereon by other persons having an equal right to tbe use and enjoyment thereof. Incidentally, also, arises the question whether tbe state acquires such a right, under its grant from tbe United States government of lands in aid of common schools, as to enable it, prior to tbe official survey by tbe United States, and tbe approval of the plat by tbe commissioner of tbe land office of tbe United States, to lease tbe lands so granted, and thus give a [326]*326right to a citizen of the state to the use and enjoyment thereof, to the exclusion of other citizens.
The question of the right of the state to make sales or valid leases of lands granted to it for school purposes by the United States, prior to the official survey thereof, is referred to as incidental, because the respondent does not, in this court, rely, except incidentally, upon a lease from the state for the protection of his alleged right to the exclusive use of the lands in controversy. He relies mainly upon his actual, peaceable possession of the land as a part of the public domain. He concedes that it is unsurveyed and that, until it is surveyed, the state has no title which it may convey; and this concession we think properly made. For it seems to be the rule, applicable to such grants, that, though they operate for some purposes as grants m praesenti, conveying the fee, yet, until the official survey is made and the plat has been approved by the federal authorities, the grant is not effective to vest title to any specific portion of the land described by the designation of section numbers only. (Middleton v. Low, 30 Cal, 596; Medley v. Robertson et al., 55 Cal. 396; Linn v. Scott, 3 Tex. 67; United States v. Montana L. & M. Co., 196 U. S. 573, 25 Sup. Ct. 367, 49 L. Ed. 604.) Even a partial survey of the particular section is not sufficient to identify it. (United States v. Birdseye, 137 Fed. 516.) The reason of the rule is that, until the subject of the grant is identified, there is no particular portion of the great body of lands in which it is included to which the state may assert title, or over which it can exercise exclusive right. The concession logically carries with it the further concession that, for the same reason, the state may not carve out of the subject of the grant a less estate than the fee and convey that. In other words, if it cannot, for the reasons stated, convey the fee, it may not for the same reason grant a lease.
So far as we are aware, the state has never by any legislation assumed, or attempted to assume, control of unsurveyed school lands. So we are relieved of the necessity of discussing further any right of the-plaintiff founded upon a lease from the state; [327]*327for, though the respondent contends that even if the state cannot convey title, yet, since he went into possession and erected his enclosure under a lease which the state assumed to execute, he is in possession under color of title, it is apparent that this lease could have no efficiency whatever as a protection for his unlawful occupation.
We therefore pass to the question presented for decision, to-wit: May one citizen unlawfully enclose a portion of the public domain and protect his possession, thus acquired and held against the trespasses of another citizen who also has right of entry thereon, by invoking the injunctive power of a court of equity? That the enclosure of the plaintiff is violative of the statute of the United States prohibiting the fencing of public land is clear. Congress has declared unlawful all enclosures of any public lands, in any state or territory, made or maintained by any person, party, association or corporation, without 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 laws of the United States. (Act of February 25, 1885, c. 149; U. S. Comp. Stats. (1901), p. 1524.) The violation of this prohibition is made a misdemeanor, for which severe penalties are exacted. (Id.)
It is practically admitted that the plaintiff has no foundation for his claim to the land in controversy other than his enclosure; nor is it asserted or proved that he expects or intends to acquire title to the land within it from the United States. Indeed, we think it may be assumed that he cannot do so, for the area enclosed cannot be acquired by a single citizen under any provision of the laws of the United States. So he stands before a court of conscience, asserting that he is a trespasser and misdemeanant, without right of possession or color of title, and without hope of acquiring any, and demands that it use its power to aid him in maintaining his unlawful course, and that, too, against a citizen who has the same right of entry that he has himself. No case has been called to our attention in which a [328]*328court has used its power for this purpose; and it seems to us that every principle of justice is against it.
The action was not brought for damages for the destruction of the fence' or other improvements, but for the depasturing of the land and the consequential injury wrought by plaintiff’s being compelled to allow his standard bred stock to run at large upon the common range. The purpose for which the injunction is sought is to prevent further injury of the same kind. The United States government has for many years encouraged its citizens in this western country to use the public domain to pasture their flocks and herds. So long has this condition of affairs prevailed, that it may be said that the government has granted to each citizen a license to go upon and use these pastures. (Buford v. Houtz, 133 U. S. 320, 10 Sup. Ct. 305, 33 L. Ed. 618.) No citizen, then, has a right to take away or destroy or limit this privilege, and if he does so — as plaintiff has done in this case — he should not be heard by a court of equity to allege his wrong as a reason why a court of equity should protect him.
The cases cited by plaintiff are not in point. In Monroe v. Cannon, 24 Mont. 316, 81 Am. St. Rep. 439, 61 Pac. 863, this court considered the rights of citizens under the fencing law of this state. The question decided was whether, under the statute (Pol. Code, sec. 3258), one citizen is at liberty to drive his stock upon the land of another and depasture it, though it is not enclosed by a legal fence, as provided by section 3250. It was held that when one person knowingly and willfully appropriates another’s land in this way, though it be not fenced at all, he is liable for the damages sustained by the owner. It will be noted that the plaintiff in that case was admittedly the owner of the land in controversy, and that the defendant, knowing this fact, caused his sheep to be herded thereon and depastured it. And so with the other cases cited; none of them recognize the right of one person to sue and recover for damages for injury by others to the lands claimed by him, where such claim is not founded upon some color of title under the laws of the United States, or a settlement with bona fide intention to acquire title.
[329]*329Plaintiff contends that, since he is in the actual, peaceable possession, and the federal government makes no complaint, he is, as against the defendants, the owner of the fee, or, at least, entitled to maintain his possession. He says that the courts will not sanction the enforcement of individual rights by violence, or look with favor upon a citizen who assumes to take the law into his own hands, and, by mere might or power, do what he should invoke the law to do for him; for this course would encourage violence and crime. This is conceded. What we here say has no application to actions at law for injuries to property belonging to the plaintiff; nor to summary actions to recover possession of real estate, the actual, peaceable possession of which is taken or detained from the plaintiff by force accompanied by circumstances of terror, authorized by statute to prevent breaches of the peace. In such cases the title to land is not involved. We think, however, different principles should apply where the plaintiff seeks to recover for damage to land to which he shows he has no other right but a tortious possession. The proprietary title to the public lands is in the United States, and it alone can maintain an action for injury to them. If plaintiff could maintain this action for depasturing this land, he could maintain one for the cutting of timber thereon, or removal of mineral therefrom, upon the strength of his enclosure alone. That he can maintain an action for either of the latter injuries, no one will claim. If the action may not be maintained for the depasturing of the land, then it must follow that the plaintiff cannot have incidental relief by way of injunction.
The order is reversed.
Reversed.
Me. Justice Holloway concurs.