Northern Pac. Ry. Co. v. Cunningham

Decision Date14 October 1898
Citation89 F. 594
CourtUnited States Circuit Court, District of Washington, Southern Division
PartiesNORTHERN PAC. RY. CO. v. CUNNINGHAM.

Crowley & Grosscup, for complainant.

A. S Bennett, for defendant.

HANFORD District Judge.

This is a suit for an injunction to restrain the defendant from pasturing sheep upon uninclosed lands owned by the plaintiff situated in Yakima county, in the state of Washington, said lands being part of the land grant to the Northern Pacific Railroad Company. The answer sets up that the lands referred to in the plaintiff's bill of complaint are alternate odd-numbered sections, and that the same are uninclosed, and the boundaries thereof unmarked, the original survey stakes set at the section corners having been destroyed; that the alternate even sections are public lands of the United States, upon which the plaintiff claims the right, as a licensee of the government, in common with all other citizens, to pasture sheep; that it is impossible for the defendant, or others having the right, to use the vacant uninclosed grazing lands belonging to the United States in the vicinity described in the complaint without crossing over the alternate odd-numbered sections to which the plaintiff claims title; that the defendant is innocent of any intention to trespass upon the plaintiff's lands; and that his sheep do graze upon the plaintiff's lands only to a limited extent, which the defendant is unable to prevent because of the failure of the plaintiff to inclose its lands or to mark the boundary line separating the odd-numbered from the alternate even-numbered sections. The plaintiff has filed exceptions on the ground that the matters so pleaded in the answer do not constitute a defense.

In the argument, counsel for the defendant has presented with earnestness and ability the following propositions:

'(1) That in all such grants or conveyances-- that is, where the land granted is entirely surrounded by the land reserved to the grantor, and vice versa-- that there is a way of necessity which passes to the grantee, on the one hand, and is reserved by the grantor, on the other, to pass across the land granted or reserved, as the case may be, to reach its own land.
'(2) That this right goes with the land, and passes to any person using the land, with the consent of the owner, whether it be a tenant or a licensee, going there with the permission of the owner.
'(3) That the defendant in this case, in common with all citizens of the country, is a licensee of the government in the use of its public lands for grazing purposes, and goes there to use the land with its permission and authority, and therefore, as long as such implied permission and authority continue, has the same right to go across plaintiff's land to reach the government sections, as against the plaintiff, as the government itself would have.'

I can, and do, give the defendant the full benefit of the above propositions in their entirety; but, having done this, I am still far away from the conclusion which the defendant's counsel has endeavored to draw from these propositions. A way of necessity can be claimed only on the ground of necessity. The right is limited to the single purpose of affording access to premises which would otherwise be inaccessible, and under this pretense there can be no legal or equitable claim to an easement in all of the lands surrounding the premises to which the right of access may be claimed, nor to any greater area than is reasonably sufficient for the purpose of a highway. In face of the facts pleaded in this answer, the plaintiff would have no case if the object of the suit was to restrain the defendant from driving sheep across its lands for the purpose of pasturing the same upon the alternate sections owned by the government. But the purpose of this suit is different. The plaintiff complains because the defendant's sheep consume the entire crop of grass upon its lands, and are doing permanent injury to the land itself, by destroying the roots of the grasses, and poisoning the lands; and it is no answer to this complaint for the defendant to say that he claims an easement and a right to use sufficient of the plaintiff's lands as a highway to gain access to other lands where he may lawfully take his sheep for pasturing.

The case of Buford v. Houtz, 133 U.S. 320-332, 10 Sup.Ct. 307, upon which the defendant relies, would be conclusive in his favor upon this hearing, if the local law upon which that decision rests prevailed in this state. In the opinion by Mr. Justice Miller, the supreme court is careful to make it clear that in Utah, where the case arose the rule of the common law, that the owner of domestic...

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7 cases
  • Walker v. Bacon
    • United States
    • Idaho Supreme Court
    • 1 Junio 1905
    ... ... Oregon Short Line R. R. Co., 7 Idaho 355, 63 P. 112, 53 ... L. R. A. 744; Northern P. Ry. Co. v. Cunningham, 89 ... F. 594.) The police control must be general in its ... ...
  • Rutherford v. The Lucerne Canal and Power Company
    • United States
    • Wyoming Supreme Court
    • 18 Febrero 1904
    ...2 Story's Eq. Jur., 928, 929; 2 Beach Inj., Sec. 1186; Freehold v. Gallegos, 89 F. 769; Tallman v. R. R. Co., 121 N.Y. 119; Ry. Co. v. Cunningham, 89 F. 594; Halpin v. McCune (Ia.), 78 N. W., 210; Peterson v. Hopewell (Neb.), 76 N. W., 451; Lembeck v. Nye (O.), 24 N. E., 686; Wheelock v. No......
  • Winters v. Turner
    • United States
    • Utah Supreme Court
    • 4 Enero 1929
    ... ... numerous cases. N. P. Ry. Co. v. Cunningham ... (C. C.) 89 F. 594; Bulpit v. Matthews , 145 ... Ill. 345, 34, 34 N.E. 525 [74 Utah 234] ... 599, 16 L. R. A. (N. S.) 647, 125 Am. St. Rep. 688, 14 Ann ... Cas. 621; Missouri Pac. R. Co. v. Olden , 72 ... Kan. 110, 83 P. 25 ... Of the ... propriety and power of ... ...
  • Martin v. Platte Valley Sheep Company
    • United States
    • Wyoming Supreme Court
    • 25 Abril 1904
    ... ... The fence is all constructed on the northern or eastern side ... of that river, and is so located that it takes in several ... sections of ... decision rests prevailed in the State of Washington. ( N ... Pac. Ry. Co. v. Cunningham, 89 F. 594.) ... It was ... said in Texas: "Whether the ... ...
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