United States v. Camfield

59 F. 562, 1894 U.S. App. LEXIS 3189

• Court: U.S. Circuit Court for the District of Colorado
• Decided: January 25, 1894
• Docket: No. 2,972
• Status: Published

Opinion

1IALLETT, District Judge.

The act of congress of February 25, 1885, (23 Stat. 321,) declares that any inclosure of public lands made without claim or color of title shall be unlawful, and confers jurisdiction on federal courts to abate and remove, in a summary way, all fences erected contrary to the provisions of the act. In this bill tbe government seeks to enforce the act with respect to certain fences erected by respondents, inclosing government lands in townships 7 and 8 Á., of range 63 ~W. of the sixth principal meridian, covering an area of 20,000 acres. It is charged in the hill that respondents, owning odd-numbered sections in these townships and other townships adjacent, have erected a fence on their own lands in such manner as to inclose the even-numbered sections in townships 7 and 8, belonging to the government. Respondents confess the fact to be as alleged, and say that the inclosure was made with a view to bring the lands under cultivation by building canals and reservoirs, from which they may' be irrigated. As to respondents’ intent we cannot inquire, for that is not, under this statute, a judicial question. If the fence is forbidden by statute, we arc; not at liberty to inquire with what intent it was built; a,nd obviously the case is within the statute, which declares “that all inclosures of public lands” shall be unlawful, without reference to whether the; fence constituting the inclosure shall he on public or private lands. The circumstance that respondents have put their fence on their own lands is of no weight against the fact that the fence makes an inclosure of public lands. Often, in this circuit, the statute has been declared to have this effect, and some of the cases are found in In reports. U. S. v. Brighton Ranch Co., 25 Fed. 465, 26 Fed. 218; U. S. v. Cleveland & Colo. Cattle Co., 33 Fed. 323. Respondents rely on two cases which seem to support the answer, but they cannot be accepted in this court: U. S. v. Douglas-Willan Sartoris Co., 3 Wyo. 288, 22 Pac. 92; U. S. v. Brandestein, 32 Fed. 738. The exceptions to the answer will be sustained.