Hanley v. United States

• Decision Date: 06 February 1911
• Docket Number: 1,814.
• Citation: 186 F. 711
• Parties: HANLEY v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

186 F. 711

HANLEY v. UNITED STATES. ^[1]

No. 1,814.

United States Court of Appeals, Ninth Circuit.

February 6, 1911

C. E S. Wood and John M. Gearin, for plaintiff in error.

John McCourt, U.S. Atty.

Before GILBERT and ROSS, Circuit Judges, and HANFORD, District Judge.

ROSS Circuit Judge.

The plaintiff in error was defendant in the court below to an indictment containing two counts, the first of which charged him with unlawfully maintaining and controlling certain fences, which, together with natural barriers and cross-fences, inclosed a large body of public land of the United States situated in Harney county, state of Oregon, and the second of which counts charged him with unlawfully preventing and obstructing persons from peaceably entering upon or establishing a settlement or residence on the tracts of public land within the inclosure, and preventing and obstructing their passage over and through the public lands so inclosed by means of the fences described in the first count, contrary to the provisions of Act Cong. Feb. 25, 1885, c. 149, 23 Stat. 321 (U.S. Comp. St. 1901, p. 1524). Upon the trial of the issues made by the defendant's plea of not guilty, a verdict was rendered in his favor upon the second count of the indictment and of guilty under the first count.

The inclosure complained of was constructed many years prior to the times in question here by one Peter French, who was the owner of a large amount of land called the 'P Ranch,' upon which he had a great many head of stock, and consisted of a wire fence fastened to posts set about 30 feet apart which was erected upon a string of 40-acre tracts of land owned by French, and extending many miles to where it connected with natural barriers consisting of precipitous rim rock several hundred feet in height. The ranch consisted of about 140,000 acres, and within the inclosure were also many thousand acres of public land of the United States. Several public roads pass through the lands over which the government mails are carried, and which are also used as common highways by the traveling public. At some at least of the points where the roads were crossed by the fence gates were placed by the builder of the fence. After the death of French, which occurred in 1897, the administrator of his estate operated the property and made use of the inclosure as French had done until the fall of 1906, when it was acquired by other parties, for whom the defendant Hanley in April, 1907, became general manager of the ranch as well as the stock thereon.

It is insisted on his behalf that the trial court should have directed a verdict in his favor upon the ground that the evidence failed to show that he ever maintained or controlled the inclosure including the government land. An attentive consideration of the record, however satisfies us that the facts and circumstances of the case as disclosed by the evidence were such that the jury might properly conclude that Hanley knew that the fence was originally constructed upon the ranch lands, in connection with natural barriers, so as to include within such inclosure a large amount of government lands, thereby giving the ranch owners practically exclusive possession and control of those public lands; that, when he became general manager of the ranch and of the stock upon it for the new owners, he came into control of the fences, which control he exercised by means of a general foreman and subordinate ones; and that the property under his management was operated as though the fences were maintained for the purposes for which they were originally constructed. Indeed there was direct testimony to the effect that the inclosure was repaired by a foreman appointed by the defendant after he became manager. In respect to that, however, the court instructed the jury:

'The defendant can only be held responsible for his own acts and his own knowledge, and not for the independent acts of his foreman or subordinates not done pursuant to his instructions or with his knowledge or approval. So that if these fences were repaired or maintained by those in immediate charge of the property as a part of their general care and without orders from the defendant, and without the knowledge or approval of the defendant, he would not be guilty. And so the defendant cannot be found guilty under the indictment, no matter what the condition of the fences was in fact, if, as an agent for the property, he had no knowledge of the condition of the fence in its actual location and construction, so as to constitute an inclosure or barrier, but understood that the fence was down and no obstruction, and after assuming charge of the property he did nothing personally, or by his instructions or counsel or with his approval or assent, to keep up the fence as such inclosure or obstruction. In arriving at your verdict, however, you will take into consideration the defendant's relation as a manager of the Harney Valley Development Company, his prior acquaintance with and knowledge, whatever it was, of the lands and the premises owned by that company, of the topography and lay of the country, of the manner in which the deeded lands or parts of them were inclosed, of his authority over the other agents and employes about the ranches concerned, and of all facts and circumstances appearing in evidence that have a tendency to throw light upon the subject; and, if from all this it appears that he aided or assisted, counseled, or advised the maintenance or control of said alleged inclosure in any way, then you should find him guilty. Otherwise, not.'

It is true that there is uncontradicted evidence to the effect that the defendant told the agent sent by the Land Department of the government to examine the inclosure in question, that he thought the fences were down and open in places, and that, if they were not in a condition satisfactory to the government, he would make them so, and would willingly go with the agent in person for that purpose; still, if the fences under the defendant's control did in fact unlawfully inclose land of the government, we do not think it can be properly held that the defendant's offer to the land agent would render the offense nugatory. We are of the opinion that the evidence was such as to make proper the action of the trial court in refusing to direct a verdict for the defendant.

The remaining question relates to the instructions given and refused by the court. Any person may lawfully...