Cameron v. United States

• Decision Date: 27 March 1893
• Docket Number: No. 42,42
• Citation: 37 L.Ed. 459,13 S.Ct. 595,148 U.S. 301
• Parties: CAMERON v. UNITED STATES
• Court: U.S. Supreme Court

148 U.S. 301

13 S.Ct. 595

37 L.Ed. 459

CAMERON

v UNITED STATES.

No. 42.

March 27, 1893.

Suit by the United States under Act Feb. 25, 1885, (23 St. p. 321,) against Colin Cameron for the destruction of an inclosure of public lands. Judgment for complainant. 21 Pac. Rep. 177. Defendant appeals. Reversed.

Statement by Mr. Justice BROWN:

This case was originally instituted by the filing of a complaint by the United States in the district court of the first judicial district of the territory of Arizona to compel the removal by the defendant, Cameron, of a wire fence, by which it was alleged he had inclosed about 800 acres of public lands 'without any title or claim or color of title acquired in good faith thereto, and without having first made application to acquire title thereto, or any part thereof, according to law.' The proceeding was taken under an act of congress of February 25, 1885, (23 St. p. 321,) to prevent the unlawful occupancy of public lands. The first section of the act reads as follows: 'All inclosures of any public lands in any state or territory of the United States, heretofore or to be here- after made, erected, or constructed by any person, * * * to any of which land included within the inclosure the person * * * making or controlling the inclosure had no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith, with a view to entry thereof at the proper land office under the general laws of the United States at the time any such inclosure as or shall be made, are hereby declared to be unlawful, and the maintenance, erection, construction, or control of any such inclosure is hereby forbidden and prohibited; and the assertion of a right to the exclusive use or occupancy of any part of the public lands of the United States in any state or any of the territories of the United States without claim, color of title, or asserted right, as above specified, as to inclosure, is likewise declared unlawful, and hereby prohibited.'

In his answer the defendant denied in general terms the allegations of the complaint, and in an amendment thereto set up a Mexican grant of May 15, 1825, to one Romero and other citizens of Santa Cruz; the death of Romero in 1873; the purchase by Alfred A. Green of the interest of his heirs in the grant; the sale by Green to one Rollin R. Richardson of an undivided nine tenths of Green's interest upon certain terms and conditions expressed in the contract; the entry by Richardson upon the land, claiming the right to the possession thereof; the sale by Richardson to the defendant, Cameron, of all his interest in the land, and the assignment of his contract with Green, whereby the defendant became the equitable owner of the said undivided nine-tenths interest, and 'is in the possession thereof, and entitled to be in possession thereof.' The answer further averred that an application was then pending before congress for the confirmation of this grant; that the same had been examined by the surveyor general of Arizona, who had reported it to be a valid grant, and recommended that it be confirmed to the representatives of Romero and his associates to the extent of four square leagues, but defendant claimed that it should be confirmed to the exterior boundaries thereof, as set forth and described in the original expediente. Upon the trial the court found the issues in favor of the United States; decreed the inclosure to be of public lands, and therefore unlawful; and rendered a special judgment in the terms of the act that the fence be removed by the defendant within five days, and, in default of his so doing, that the same be destroyed by the United States marshal.

Defendant thereupon appealed to the supreme court of the territory, by which the judgment was affirmed. 21 Pac. Rep. 177. Defendant was then allowed an appeal to this court.

Mr. Chief Justice Fuller dissenting.

Rochester Ford and Jas. C. Carter, for appellant.

Sol. Gen. Aldrich and Wm. H. Barnes, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

This case was originally dismissed upon the ground that the question at issue between the parties being the fact whether defendant had claim or color of title to the lands in question, acquired in good faith, there was no evidence of the value of such claim or color of title, even if the same were capable of pecuniary estimation, of which the court expressed a doubt. 146 U. S. 533, 13 Sup. Ct. Rep. 184.

The case was subsequently reinstated upon it being made to appear that the inclosed tract contained 1,200 acres; that defendant had been engaged since 1883 in the business of grazing cattle upon this grant and the lands adjacent thereto; that his fence inclosed and controlled the only unappropriated water in a section of grazing country embracing not less than 100 square miles; that without such fence the use and control of the inclosed land and water would be of no use to him; that if he had not the ability to maintain the fence, the land and water would be at once seized and appropriated by other persons, and defendant's cattle driven and kept away; that he would be unable to conduct his cattle business in this section and that the possession, use, and occupation of such inclosure exceeds the value of $10,000. These facts make a wholly different showing, and the case is, therefore, properly before us on its merits.

1. A preliminary objection is made by the appellee to the considration of the case upon the ground that the proceeding is in the nature of a common-law action; that it was tried without the intervention of a jury, and without a stipulation waiving a trial by jury; that the supreme court of Arizona could not properly consider any of the matters raised by the bill of exceptions, nor can this court do so; that all the supreme court could do was to affirm the judgment of the district court; and that all this court can do is to affirm the judgment of the supreme court of Arizona. By section 2 of the act of February 25, 1885, under which this prosecution was commenced, the district attorney was given authority 'to institute a civil suit in the proper * * * territorial district court in the name of the United States, and against the parties named or described who shall be in charge of or controlling the inclosure complained of as defendants; and jurisdiction is also hereby conferred on any * * * territorial district court having jurisdiction over the locality where the land inclosed, or any part thereof, shall be situated, to hear and determine proceedings in equity, by writ of injunction, to restrain violations of the provisions of this act. * * * In any case, if the inclosure shall be found to be unlawful, the court shall make the proper order, judgment, or decree for the destruction of the inclosure in a summary way, unless the inclosure shall be removed by the defendant within five days after the order of the court.'

It is a sufficient answer to this objection of the government to say that this is not a common-law action, but a summary proceeding, more in the nature of a suit in equity, and that the decree provided by the act for the abatement of the inclosure is unknown to an action at common law as administered in this country. Proceedings by assize of nuisance and by writ quod permittat prosternere have been abolished by statute in England, and are now obsolete, if ever used, in this country. 3 Bl. Comm. 221. In cases like the present the only common-law remedy available to the United States would be an action of ejectment or trespass to oust the intruders. The proceeding contemplated by this act is more nearly analogous to the summary remedies provided for the enforcement of mechanics' liens, considered by this court in Implement Co. v. Bradbury, 132 U. S. 509, 10 Sup. Ct. Rep. 177, or the special proceedings under the territorial statutes of Utah, discussed in Stringfellow v. Cain, 99 U. S. 610; Cannon v. Pratt, Id. 619; Neslin v. Wells, 104 U. S. 428; Gray v. Howe, 108 U. S. 12, 1 Sup. Ct. Rep. 136; and in Ely v. Railroad Co., 129 U. S. 291, 9 Sup. Ct. Rep. 293, appealed from the supreme court of Arizona. In these cases the validity of special statutory proceedings of this description was sustained, and in Hecht v. Boughton, 105 U. S. 235, it was held that under the act of April 7, 1874, (18 St. pt. 3, p. 27,) an appeal was the only proceeding by which this court could review the judgment or decree of a territorial court in a case where there was not a trial by jury.

The practice pursued in this case conformed to the territorial statutes of Arizona, which provide for a waiver by oral consent in open court of a trial by jury in actions arising upon contract, and, with the assent of the court, in other cases. The case is not governed by section 649 of the Revised Statutes.

2. The act of congress which forms the basis of this proceeding was passed in view of a practice which had become common in the western territories of inclosing large areas of lands of the United States by associations of cattle raisers, who were mere trespassers, without shadow of title to such lands, and surrounding them by barbed wire fences, by which persons desiring to become settlers upon such lands were driven or frightened away, in some cases by threats or violence. The law was, however, never intended to operate upon persons who had taken possession under a bona fide claim or color of title; nor was it intended that, in a proceeding to abate a fence erected in good faith, the legal validity of the defendant's title to the land should be put in issue. It is a sufficient defense to such a proceeding to show that the lands inclosed were not public lands of the United States, or that defendant had claim or color of title, made or acquired in good faith, or...