Allen v. Bailey

• Decision Date: 12 September 1932
• Docket Number: 12881.
• Citation: 14 P.2d 1087,91 Colo. 260
• Parties: ALLEN et al. v. BAILEY et al.
• Court: Colorado Supreme Court

14 P.2d 1087

91 Colo. 260

ALLEN et al. v. BAILEY et al.

No. 12881.

Supreme Court of Colorado, En Banc.

September 12, 1932

Rehearing Denied Oct. 10, 1932.

Error to District Court, Delta County; George W. Bruce, Judge.

Action by Charles E. Bailey and others against Frank Allen and others. To review an adverse judgment, the defendants bring error.

Affirmed.

BURKE and ALTER, JJ., dissenting.

Moynihan, Hughes & Knous, of Montrose, for plaintiffs in error.

Fairlamb & Fairlamb, of Delta, for defendants in error.

Frank Delaney, of Glenwood Springs, and Clifford H. Stone and Richard E. Conour, both to Gunnison, amici curiae.

ADAMS C.J.

Bailey and twenty-five other cattlemen brought an action against Allen and about thirty other sheepmen under chapter 125 pages 443-450, Laws 1929, known as the Public Domain Range Act, to apportion and divide the use of an extensive range in Delta county, Colo. The decree of the district court, which followed the findings of referees, designated a certain portion of the public range as cattle range and another portion as sheep range, and contained injunctive relief. After the suit was commenced, most of the sheepmen stipulated with defendants in error as to the fixing of range lines, but four dissatisfied sheepmen, Walter January, Victor A. Phillips, Welland States, and Glenn McNaught, prosecute error. They challenge the constitutionality of the statute under which the proceedings were had and allege other errors. We shall refer to the cattlemen as plaintiffs and to the sheepmen as defendants, as aligned at the trial.

The act above mentioned is entitled: 'An Act relating to livestock and the regulation and use of the public domain range and providing a method to adjudicate disputes and providing penalties for the violation of this act.'

Sections 1 and 2 (Laws 1929, pp. 443, 444) read as follows:

'Section 1. To prevent dissension and breach of the peace, the question as to the kind of livestock, whether cattle or sheep, that shall have the preferred or better right to graze upon any particular portion of the public domain within this state shall, fro and after the passage of this act, be determined according to the use made thereof during the last grazing season prior to the passage of this act whether such use was as a cattle or sheep range and whether the same was used as a spring, summer, fall, winter, or other kind of range; provided that a single instance of grazing or herding certain kind of livestock on any such range prior to the passage of this act and subsequent to January 1, 1929, over the protest of others in prior use and occupancy thereof, who graze a different kind of livestock will not confer a better right.

'Sec. 2. Any range now being used as a mixed cattle and sheep range may be apportioned and divided between the different classes of livestock, that is cattle or sheep, grazed thereon, by the District Court having jurisdiction whenever a controversy or dispute shall arise upon complaint of any interested party or person using said range. Any such range shall, upon final hearing, be apportioned according to the requirements of the different kinds of livestock grazed or herded thereon and the nature of the different parts of the range to be apportioned and in accordance with the quities and rights of the owners of the different kinds of livestock using such range as a class, regard being had to the extent of the user theretofore made by each closs of livestock growers.'

Section 3 (Laws 1929, p. 444) reads, in part, as follows: 'Whenever a dispute shall arise as to which respective class of livestock has the better right to graze upon any particular portion of said public domain, the district court of the county wherein such disputed area or some part thereof lies, shall have jurisdiction to determine the matters in an action in equity for an injunction to be brought by any person or persons claiming such better right and against any and all persons violating or threatening to violate any such alleged better right. * * *'

Other provisions of section 3 are that service of process may be made in person or by publication; that the procedure shall be as provided by the Code of Civil Procedure of this state; that the court may in its discretion grant a temporary restraining order or a temporary injunction as in ordinary cases in suits for injunction; that when the cause is at issue, the court shall in the first instance refer all questions of fact to three referees, one in the cattle business, and one in the sheep business, if available, the third to be a disinterested person selected by the other two, or by the court, subject to objection. Within ten days after the report of the referees is filed, either party may file written objections which the court shall hear and determine. The court may require further findings or may assume jurisdiction and determine all questions at issue and enter a final decree. If it appears that plaintiff has the preferred or better right to the use of the public domain, the court shall enter a decree determining boundaries and enjoining and restraining the defendants from interfering with such rights of the plaintiff and others engaged in the same business, and award such other relief as justice and equity may require.

Section 4 (Laws 1929, p. 446) provides in substance that when any portion of such public domain shall have been so decreed as a sheep or cattle range, or that the same is entitled to be used by sheep or cattle owners, three copies of a notice of the decree shall be posted in conspicuous places upon the range by the sheriff. Section 4 makes a violation of the act a misdemeanor, punishable by a fine of not more than $1,000 or by imprisonment in the county jail for not more than six months, or by both fine and imprisonment, in the discretion of the court.

The substance of section 5 of the act (Laws 1929, p. 447) is that if any given area has been adjudged to be subject to use either as a cattle or sheep range, any one in interest may thereafter institute supplemental proceedings for a reapportionment of the range under certain specified conditions, which change may be permitted by supplemental decree, provided that sufficient range shall be left subject to the terms of the original decree to meet the actual requirements of all persons still running live stock of the kind given the preferred or better right under the original decree. Notice of the provisions of the supplemental decree shall be given as in case of the original decree.

Section 6 (Laws 1929, p. 448) reads, in part: 'It is hereby declared the policy of this state to preserve the grasses and vegetation on the public domain and protect the wild game of this state in their natural ranges, and especially on the winter ranges and to prevent erosion of the soil and thereby conserve the waters and water supply originating on the public domain ranges of this state and the indiscriminate and unregulated overstocking of such ranges tend to deplete and destroy such vegetation, increase erosion and diminish the water supply of the streams and springs of the State of Colorado. * * *'

Section 6 also provides for supplemental proceedings to establish the fact when the range is or is about to be overstocked, and for a decree of court determining the number of live stock the range is capable of supporting.

Sections 7 and 8 of this 1929 act (pages 449, 450) are as follows:

'Sec. 7. Nothing herein contained shall be construed to prohibit free transit over the public domain as provided by the acts of Congress, or to confer upon any individual as such an exclusive right to the use or occupancy of any part of the public domain.

'Sec. 8. If any section, paragraph, clause, word or phrase of this act shall be declared unconstitutional, the invalidity thereof shall not affect the remainder of this act.'

The chapter concludes with an emergency clause, declaring that the act is necessary for the immediate preservation of the public peace, health, and safety. The foregoing indicates the purport of the act as far as we deem it necessary to determine its constitutionality.

Defendants contend that the 1929 act violates the following constitutional provisions and congressional enactments:

Clause 2, § 3, article 4, U.S. Constitution, which reads: 'The congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.'

Act of Congress Feb. 25, 1885, ch. 149, § 1, 23 Stat. 321 (section 1061, title 43, ch. 25, p. 302, U.S. Code Ann.), pertaining to inclosure of or assertion of right to public lands without title.

Act of Congress Feb. 25, 1885, ch. 149, § 3, 23 Stat. 322 (section 1063, title 43, ch. 25, p. 313, U.S. Code Ann.). In substance, this section makes it unlawful to prevent or obstruct any person from peaceably entering on or settling on the public domain, or to prevent or obstruct free passage or transit over or through public lands.

The Fourteenth Amendment to the United States Constitution, which prevents the abridgment of the privileges or immunities of citizens of the United States, guarantees due process of law, and the equal protection of the laws.

The Enabling Act, passed by the Contress, upon the admission of this state into the union, i. e., that part of section 4 thereof (C. L. 1921, pp. 31, 32) which reads, in part 'That the people inhabiting said territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and...