Buford v. Houtz

• Decision Date: 26 June 1888
• Citation: Buford v. Houtz, 5 Utah 591, 18 P. 633 (Utah 1888)
• Court: Utah Supreme Court
• Parties: M. B. BUFORD AND OTHERS, APPELLANTS, v. JOHN S. HOUTZ AND OTHERS, RESPONDENTS

18 P. 633

5 Utah 591

M. B. BUFORD AND OTHERS, APPELLANTS, v. JOHN S. HOUTZ AND OTHERS, RESPONDENTS

Supreme Court of Utah

June 26, 1888

APPEAL from a judgment on demurrer of the district court of the third district.

The complaint alleges title in the plaintiff, describing the alternate sections by number, township and range, that the said lands above described comprise in all more than three hundred and fifty thousand (350,000) acres, and extend over an area of forty miles in a northerly and a southerly direction, by about thirty-six miles in an easterly and westerly direction; that said lands are very valuable for the pasturage and grazing of stock and are of little or no value for any other purpose, and were acquired and are now held by plaintiffs for the purposes aforesaid solely. That owing to the character of said lands, and the scarcity of water and the aridity of the climate where said lands are situated they can never be subjected to any beneficial use other than the grazing of stock; that said plaintiffs own and are possessed of a large number of horned cattle, to-wit: more than 20,000 head, of great value, to-wit: of the value of $ 100,000, and are engaged in the sole business of stock raising; that said plaintiffs now have, and for a long time last past have had all said cattle running and grazing upon said lands; that said plaintiffs have no other lands upon which they can graze or pasture said cattle or any part or portion thereof, nor have plaintiffs any means whatever whereby they can keep or maintain said cattle or any part or portion thereof, except by pasturing them upon these said lands, and that said lands are of no value to plaintiffs except for the purposes of pasturage for said cattle; that all the even numbered sections in each and all of the townships and fractional townships above mentioned belong to, and are a part of the unoccupied public domain of the United States; that said defendants have not, nor has either of them any right, title or interest or possession or right of possession of or to any of the lands embraced within any of the townships or fractional townships above mentioned or ever had; that none of said lands are fenced or enclosed except small portions thereof belonging to said plaintiffs, used for corrals, that it is impossible for plaintiffs to fence and enclose their said lands without enclosing large portions of said lands of the United States lying within the exterior boundaries of plaintiffs' lands; that they cannot fence and enclose their said lands without rendering large and valuable portions thereof of little or no value for purposes of pasturage because the cattle of plaintiffs running thereon would thereby be shut off and prevented from obtaining necessary water which only rises and flows in isolated subdivisions of said lands, and the sources of water supply are long distances apart; that said defendants, Houtz &amp Conant, now own, and for a long time last past, have owned a large number, to-wit: 15,000 head of sheep, and each of the other defendants to this action is now, and for a long time last past has been, the owner of a large band or herd of sheep; that the least number of sheep owned by any one of said defendants exceeds, as plaintiffs are informed and believe, 5,000 head; that they are informed and believe, and therefore charge the fact to be that the aggregate number of sheep so owned by said defendants, severally, exceeds 200,000 head; that the United States official survey has been extended over all the lands embraced within all of the townships and fractional townships aforesaid; that there are seven convenient, well known, well defined and regularly traveled highways over the land aforesaid, four of which run in a northerly and southerly direction, and three in an easterly and westerly direction, entirely across the lands embraced within all the aforesaid townships and fractional townships; yet notwithstanding the facts aforesaid, that each of said defendants claims and asserts that he has the lawful right and is entitled to drive all sheep owned by him over across and upon any and all of said lands of these plaintiffs and to graze and pasture the said sheep thereon wherever and whenever he may wish or desire so to do; that all said defendants, respectively, rely upon and set up a common though not a joint, pretended right as the foundation of the said asserted right of each so to drive, graze and pasture his sheep thereon, and each of said defendants bases his said pretended and asserted right so to drive, graze and pasture his sheep on said lands of plaintiffs upon precisely the same state of facts as that relied upon by each of the other of said defendants in the assertion of his said asserted and pretended right so to do and not upon any other or different fact or state of facts. That is to say, each of said defendants claims that all the even numbered sections in each of said townships and fractional townships, being as aforesaid unoccupied public domain of the United States, he has an implied license from the government of the United States to drive, graze and pasture his sheep thereon and that he cannot so drive, graze and pasture his sheep upon said government lands without having them run, graze and pasture upon said lands of plaintiffs, and therefore, each of said defendants claims and asserts that he is entitled to have his said sheep run, graze and pasture upon said lands of plaintiffs as aforesaid.

That during the year last past, and while said plaintiffs were so the owners, in possession and...