Golconda Cattle Co. v. United States

214 F. 903, 131 C.C.A. 199, 1914 U.S. App. LEXIS 1186
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 6, 1914
DocketNo. 2143
StatusPublished
Cited by3 cases

This text of 214 F. 903 (Golconda Cattle Co. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Golconda Cattle Co. v. United States, 214 F. 903, 131 C.C.A. 199, 1914 U.S. App. LEXIS 1186 (9th Cir. 1914).

Opinions

ROSS, Circuit Judge.

Our former decision in this case is reported in 201 Fed. 281, 119 C. C. A. 519. A rehearing was granted, and after its reargument, and a very careful reconsideration of the record, we are convinced that in two respects indicated in the former opinion the court was in error — one as to a matter of fact and the other of law. In regard to the latter, it was said in the opinion — following the decision of the Circuit Court of Appeals of the Eighth Circuit in the case of Homer v. United States, 185 Fed. 741, 108 C. C. A. 79 — that the question of intent with which the fencing was done could not be considered by the court. A reconsideration of that question satisfies us that this court had held the reverse in the cases of Potts v. United States, 114 Fed. 52, 51 C. C. A. 678, and Hanley v. United States, 186 Fed. 711, 108 C. C. A. 581, and that the Supreme Court so held in the case of Camfield v. United States, 167 U. S. 528, 17 Sup. Ct. 864, 42 L. Ed. 260. In the opinion in the case of Homer v. United States, supra,' from which Judge Van Devanter, now a Justice of the Supreme Court, dissented, the court said:

“The Camfield Case was heard on an exception to defendant’s answer to the effect that said answer did not state facts sufficient to constitute a defense to the bill. The answer sought to justify the erection of the fence in that cáse on the ground that defendants owned all the odd-numbered sections upon which the fence was built, and that they were engaged in building large reservoirs for the purpose of irrigating the land by them owned. They also denied that they had any intention of monopolizing the even-numbered sections or to exclude the public therefrom. With these allegations in the answer, this court affirmed the judgment of the Circuit’Court abating the fence, and the Supreme Court, in affirming the judgment of this court, necessarily decided that building a fence on one’s own land without an intention of inclosing lands of the United States was no defense, if in fact the lands mentioned were actually inclosed.”

Turning to the case of Camfield v. United States, 167 U. S. 518, 17 Sup. Ct. 864, 42 L. Ed. 260, it is seen that the bill averred in substance that the defendants, 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 inclosed and in-[905]*905eluded about 20,000 acres of the public domain; that the effect of such inclosure was to exclude the United States and all other persons except the defendants therefrom; and that the lands thus wrongfully inclosed 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 that railroad company the right to use all the odd-numbered sections of land which lie within the 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 the odd-numbered sections, either within or without townships 7 and 8, so as to completely inclose all of the government lands aforesaid, but without locating the fence on any part of the public domain so included. The defendants by the answer admitted that they had constructed a fence so as to inclose all of the even-numbered sections in townships 7 and 8 substantially as set out in the bill, 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 inclosed by the aforesaid fence, and by their answer sought, among other things, 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 they denied that they had any intention of monopolizing the even-numbered sections inclosed by said fence, or to exclude the public therefrom.

An exception to the answer upon the ground that it was insufficient to constitute a defense to the bill was sustained by both the trial and the Supreme Court. The latter, after setting out the provisions of the statute of February 25, 1885, entitled “An act to prevent unlawful occupancy of the public lands,” 23 Stat. 321, the construction and application of which were involved, said:

“Defendants are certainly within the letter of this statute. They did inclose 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.”

And, after referring to the general proposition that a man may do what he will with his own, and pointing out that that right will not justify him in maintaining a nuisance, or in carrying on a business or trade that is offensive to his neighbors, proceeded as follows:

“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 needs no argument to show that the building of fences upon public lands with intent to inclose 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 con[906]*906trolled the alternate sections, to inclose the entire tract, and thus to exclude or frighten off intending settlers, finally became so great that Congress passed the act of February 25, 1885, forbidding all inclosures 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 inclose the government’s lands, though in fact erected a few inches inside . the defendants’ line.

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Bluebook (online)
214 F. 903, 131 C.C.A. 199, 1914 U.S. App. LEXIS 1186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/golconda-cattle-co-v-united-states-ca9-1914.