Anthony Wilkinson Live Stock Company v. McIlquam

Decision Date16 December 1905
Citation14 Wyo. 209,83 P. 364
PartiesANTHONY WILKINSON LIVE STOCK COMPANY v. McILQUAM
CourtWyoming Supreme Court

ERROR to the District Court, Laramie County, HON. RICHARD H. SCOTT Judge.

Action to enjoin the erection of fences upon lands of the defendant which it was alleged would prevent plaintiff's cattle from grazing upon open and uninclosed public lands; and to restrain an alleged illegal assertion by defendant of a right of exclusive possession to certain public lands. From a judgment in favor of the plaintiff, the defendant brought error. The facts are stated in the opinion.

Reversed.

John W Lacey and C. W. Burdick, for plaintiff in error.

The fence of defendant below does not and was not intended to enclose government land. It interfered with the plaintiff only by preventing him from forcing his cattle across defendant's land to the government lands beyond. An injury can only arise from an unauthorized invasion of the rights of another. By guarding its premises from the trespass of plaintiff's cattle, the defendant committed no wrong. It might have stationed men on its land to keep off plaintiff's cattle, and surely it can build a line fence to accomplish the same purpose, without invading any right of the plaintiff. There is no reason for requiring defendant to either entirely enclose its lands by a fence or else build no fence at all. The only right claimed by the plaintiff is to depasture government lands under an implied license common to all stock raisers. He has no other right to such lands. He has not, therefore, any legal or equitable right, but, on the contrary, a mere permissive license arising solely from the silence of the government. It is incumbent upon a party seeking relief by injunction to show some clear legal or equitable right, and a well grounded apprehension of immediate injury to those rights. The plaintiff has not shown any such right as the law requires. He cannot enforce a public right. (High Inj., Secs. 7, 9, 651, 652-698; Hilliard Inj., 319; McGinnis v. Freidman, 17 P. 635; Spelling Ex. Rem., Sec. 364; R. R. Co. v. Spratt, 12 Fla. 26; Gleason v. Jefferson, 78 Ill. 399; Hardesty v. Taft, 23 Md. 512; Bennett v. Am. Art. Union, 5 Sandf., 614; Smith v. Henston, 28 N.E. 358; Treadwell v. Payne, 15 Cal. 496; Mowday v. Moore, 19 A. 626; Spangler v. Cleveland, 43 Ohio St. 526; Delaware, &c., Co. v. Central, &c., Co. (N. J.), 17 A. 146; Harper v. McElroy (N. J.), 10 A. 879; Laird v. Boyle, 2 Wis. 413; Atty. Gen'l. v. Ins. Co., 3 Johns. Ch., 371; 1 High Inj., Sec. 20.)

W. R. Stoll, for defendant in error.

All owners of live stock under the license of the government of the United States have a right for their live stock to graze and pasture at will upon the public domain adapted to such use and which public lands are not enclosed or otherwise withdrawn from such use by the government; and in the enjoyment of such right such owners will be protected by any proper remedy of the courts. (Buford v. Houtz, 133 U.S. 320; Matthews v. Ry. Co., 7 N. D., 81; Garst v. Love, 6 Okla., 46; Ketchum v. Davis, 3 Wyo. 164; Delaney v. Errickson, 11 Neb. 533; Powers v. Kindt, 13 Kan. 74; Caulkins v. Mathews, 5 Kan. 199; R. R. Co. v. Rollins, 5 Kan. 167; Harrison v. Adamson, 76 Iowa 337; Lazarus v. Phelps, 152 U.S. 81; Hecht v. Harrison, 5 Wyo. 279; State v. Johnson, 7 Wyo. 512, and Cosgriff v. Miller, 10 Wyo. 190; U. S. v. Dastervignes, 118 F. 199; S. C.., 122 F. 30; U. S. v. Tigh Vally L. & L. S. Co., 76 F. 693.)

It is unlawful for any person to enclose government land to which he has no title or color of title, and it is equally unlawful for any person to seek to appropriate to his own exclusive use any such government land, or to obstruct or prevent full passage or transit over the same by means of fences or otherwise. If any person does enclose such land or seek to appropriate the same to his own use, he may be proceeded against at law, in equity or criminally, by the government of the United States. (U. S. St. of Feb. 25, 1885, Ch. 149 (23 St. at Large, 321); Buford v. Houtz, 133 U.S. 320; U. S. v. Brighton Ranch Co., 26 F. 218; U. S. v. Brighton Ranch Co., 25 F. 465; U. S. v. Buford (Utah), 30 P. 433; U. S. v. Cleveland, &c., Co., 33 F. 323; U. S. v. Camfield, 59 F. 562; Camfield v. U.S. 66 F. 101; Cameron v. U.S. 148 U.S. 301; U. S. v. Bisel, 8 Mont., 20; U. S. v. Flaherty, 8 Mont., 31; Barclay v. U.S. 3 Wash., 522; U. S. v. Cook, 36 F. 896; U. S. v. Felderward, 36 F. 490; State v. Goodnight, 70 Tex. 682.)

From the foregoing, we submit, it follows that if by doing so such person violates the right of any other person to the proper use of such lands, such other person must necessarily have his proper remedy in the courts for such violation.

If it is true that the government of the United States has given the settlers upon the public domain the right to pasture and graze their live stock thereon, or to make other use of the public domain, and settlers have availed themselves of this license, would the license be of any avail to them if its invasion could not be prevented or punished or compensated for in a court of justice? How can the courts in this country recognize any right whatever in the settlers in this regard unless they can at the same time enforce such right? Does not the violation of a right require a remedy?

The defendant in error does not dispute the right of the plaintiff in error to pasture its cattle or live stock upon the lands in question, but it does dispute its right to claim the exclusive possession of those lands for its own cattle to the exclusion of the cattle of the defendant in error. The whole question is simply a question of the plaintiff in error appropriating to itself a large area of government land to the exclusion of all use for the purposes of pasturing the live stock of the defendant in error.

If the plaintiff in error were to erect a fence about the lands in question, it could not thereby exclude the cattle of the defendant in error. If he should do so, the defendant in error could come into a court of equity and have his right to pasture the land in question recognized, and a judgment restraining the defendant from interfering with his cattle. Now, if this is so, is it not equally true that the plaintiff in error cannot exclude the cattle of defendant in error from the public lands in question by means of fraudulent oil filings? What is the difference whether the defendant builds a fence, drives his cattle off the land, or herds them off, or puts a paper on record, so long as the object in doing so is simply to occupy those lands for itself and for its own cattle to the exclusion of the cattle of the defendant in error? The defendant in error is entitled as of right to have his cattle pasture upon the public domain. There is no question in the case as to the fact that the lands are not oil lands; that they have not been filed upon for any bona fide purpose; that no attempt has been made to develop these lands as mineral lands; that no discovery has ever been made of oil upon them; and that the only object and purpose of the plaintiff in error in putting oil filings upon the lands was a fraudulent and fictitious one, whereby the plaintiff in error claimed that it would have the exclusive right to the pasture upon these lands; and in the same connection with this claim and for the purpose of emphasizing it, it built the fence in question.

POTTER, CHIEF JUSTICE. BEARD, J., and CARPENTER, District Judge, concur. VAN ORSDEL, J., did not sit, having formerly been counsel in the cause, and HON. CHARLES E. CARPENTER, Judge of the Second Judicial District, was called in to sit in his stead.

OPINION

POTTER, CHIEF JUSTICE.

The plaintiff below, John J. McIlquam, seeks in this action to enjoin the construction and maintenance of certain fences, which, it is alleged, will exclude plaintiff's cattle from certain alleged unappropriated public lands of the United States, and which the defendant below, the Wilkinson Live Stock Company, is alleged to have constructed or threatened to construct, and also to restrain the defendant from otherwise interfering with the pasturing and grazing of said cattle upon such public lands.

The fences complained of are built or are proposed to be built upon lands owned or leased by the defendant, the Wilkinson Live Stock Company, in Township 17 North, Range 64 West, in Laramie County. It appears that the plaintiff is the owner of the northwest quarter of section ten (10) in that township and range, and also the following tract in township eighteen: The east half, and the east half of the southwest quarter, of section 34, and the west half of the southwest quarter of section 26; that he makes his home on section 34; that for twelve years he has been engaged in the ranching and cattle business, allowing his cattle, consisting of four hundred to five hundred head, to run at large, pasture and graze upon the unenclosed public and other lands in that vicinity, their range having been chiefly the lands lying south and west of said section ten (10), in township 17, and embraced in four or five adjoining townships.

The defendant is the owner and is in possession of all the odd numbered sections in township 17, and the odd numbered sections in township 18 from 25 to 35, both inclusive, and has leased and is in possession of sections 16 and 36, in township 17, and section 36, in township 18.

Plaintiff's land in township 18 is enclosed by his own fences, and his land in section ten, in township 17, is enclosed together with the southwest quarter of that section, the west half of that section being in one enclosure; two gaps were, however left by plaintiff in the fence enclosing his land in that section, one in the fence on the west line of the...

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18 cases
  • Mountain States Legal Foundation v. Hodel
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 22, 1986
    ...neither Wyoming nor federal law prohibits the Association from fencing out wild horses and burros. In Anthony Wilkinson Livestock Co. v. McIlquam, 14 Wyo. 209, 83 P. 364 (1905), the court upheld a landowner's right to erect a lawful fence to keep out his neighbor's trespassing cattle. Altho......
  • Gillespie v. Board of Com'rs of Albany County
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    • March 13, 1934
    ... ... erred in permitting evidence of a stock-driveway established ... by the Government, ... Domain, Section 655; Pacific Live Stock Co. v. Irr ... Dist. 270 F. 555, (C. C ... 287; Light Company v. Creed (Mo.) 32 S.W.2d 783; ... Yolo Water & ... moment. Anthony Wilkinson Livestock Co. v. McIlquam, ... 14 ... ...
  • U.S. ex rel. Bergen v. Lawrence
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 17, 1988
    ...can be reached without crossing the ranch, the fences in question do not constitute an inclosure...."); Anthony Wilkinson Livestock Co. v. McIlquam, 14 Wyo. 209, 83 P. 364, 367-68 (1905) ("Cases arising out of the unlawful inclosure of government lands are not applicable to the case at bar.......
  • State v. Omaechevviaria
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    • October 5, 1915
    ... ... which citizens have of grazing their stock upon ... the public domain are subject to ... Friedman, 2 Idaho 393, 17 P ... 635; Wilkinson Livestock Co. v. McIlquam, 14 Wyo. 209, 83 P ... ...
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