Richards v. Sanderson

• Decision Date: 04 March 1907
• Citation: 89 P. 769,39 Colo. 270
• Parties: RICHARDS et al. v. SANDERSON.
• Court: Colorado Supreme Court

89 P. 769

39 Colo. 270

RICHARDS et al. v. SANDERSON.

Supreme Court of Colorado

March 4, 1907

Appeal from District Court, Arapahoe County; Frank T. Johnson Judge.

Action by John P. Sanderson against Jarvis Richards and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Richardson & Hawkins, for appellants.

Ward &amp Ward, for appellee.

GABBERT J.

Appellee as plaintiff, brought an action against appellants, as defendants, to recover damages resulting from the wrongful driving of cattle belonging to the plaintiff. There was judgment for plaintiff, from which the defendants appeal.

It appears from the pleadings and testimony that the parties to this action each owned, or had leased, in severalty, several thousand acres of land. For the most part, these lands were alternate sections; the intervening sections being government land. The major part of the lands of plaintiff were north of Bijou creek, while the greater part of the lands of defendants were south of this stream. The lands of both parties were adjacent to each other, except as separated by that belonging to the government, or, perhaps more accurately speaking, were in the same general territory, with the principal holdings divided by Bijou creek; the different tracts of each being mostly separated by intervening alternate sections belonging to the government. Both parties were engaged in the business of keeping and raising cattle upon their respective lands and upon those adjacent, belonging to the United States. With a few exceptions, which will be noted later, none of these lands were fenced, and the cattle of plaintiff ranged over the entire territory within which the lands of the parties are situate, and in so doing grazed upon lands belonging to the defendants. The usual summer range of plaintiff's cattle was in a section of country south of Bijou creek known as 'Six Shooter Gulch.' The testimony establishes beyond dispute, in fact, it is admitted by the defendants, that in the spring, summer, and early autumn of 1901 they drove the cattle of the plaintiff from this locality off their lands, and, incidentally, over and across intervening government land, and beyond the territory within which these lands are included, for the purpose of preserving the herbage and grass upon their own lands.

The important question presented at the outset is whether the defendants had the right to do so, it being contended on their behalf that they had, provided that in driving the cattle of plaintiff reasonable care was exercised to prevent injury to them. An instruction to this effect was requested on behalf of the defendants, and refused. There was no error in this refusal. There is an implied license that the public lands of the United States shall be free to the people who seek to use them for the purpose of grazing stock, so long as the government does not forbid such use. To protect this use, Congress in 1885 passed an act the purpose of which was to prevent parties from monopolizing any part of the public domain. Act. Feb. 25, 1885, c. 149 (23 Stat. 321, 322 [U. S. Comp. St. 1901, p. 1524]). Our state laws bearing on the subject indicate the same policy. The privilege of grazing stock upon the public lands cannot be monopolized by any one, directly or indirectly, or under claim that he is but protecting his own lands. Buford v. Houtz, 133 U.S. 320, 10 S.Ct. 305, 33 L.Ed. 618; Taylor v. Buford, 8 Utah 113, 29 P. 880; Martin v. Platte Valley Sheep Co., 76 P. 571, 78 P. 1093, 12 Wyo. 432. The defendants had the right to drive the cattle of plaintiff from their own lands, exercising that degree of care to prevent injury thereto that would ordinarily be observed by a prudent person, but, when the cattle crossed the line of the land of the defendants on to land belonging to the government, the right to drive them further ceased. In the government land the rights of both parties were the same. The plaintiff had the right to have his cattle graze upon these lands in common with others who chose to exercise the same right. They constituted part of the usual summer range of his cattle. The defendants, under the claim that it was necessary in order to prevent the cattle returning to graze upon their lands, could not drive them from lands which they were lawfully upon. The principle of law derived from England that the owner must prevent his stock from going upon the uninclosed lands of his neighbor is not applicable to the vast regions of the public domain which have been open to the use of stock raisers for more than a century. Morris v. Fraker, 5 Colo. 425; Willard v. Mathesus, 7 Colo. 76, 1 P. 690; Nuckolls v. Gaut, 12 Colo. 361, 21 P. 41; Pace v. Potter, 85 Tex. 473, 22 S.W. 300. And hence the law does not recognize that the owner of uninclosed lands has any right to prevent such use of the public domain under claim that thereby he is protecting his own land. Were the law otherwise, ownership of a piece of land would enable the owner, under the guise of a right to prevent cattle grazing upon his land, to practically control a large area by driving such a distance as would be necessary to prevent their return to his land.

The complaint consisted of two counts--the first, under the common law, for negligently, wrongfully, and maliciously driving the cattle of the plaintiff; the second, under the statute, which provides, in effect, that if any person shall maliciously drive cattle from their usual range he shall be deemed guilty of a misdemeanor, and shall be liable to the party injured by such action in three times the amount of the actual injury occasioned by the commission of the offense. Sections 1424, 1425, 1 Mills' Ann. St.

The jury returned a verdict under the second count, and we will now consider the errors assigned on the refusal of the court to give other instructions requested. An instruction was refused to the effect that the statutes above referred to were highly penal in their nature, and that before the plaintiff could recover under these statutes it was necessary for him to clearly prove that the defendants had actually violated the terms thereof. Whether or not this instruction correctly stated the law, as a general proposition, is not involved in this case. The defendants admitted that they had, or had caused, the cattle of the plaintiff to be willfully driven. It is undisputed that the vicinity from which they were driven was their usual range, and had been used and occupied by the plaintiffs for the purpose of keeping and raising cattle for more than 20 years; so that it was not necessary to instruct the jury, whatever might be the rule ordinarily, as to the quantum of proof which was required on the part of the plaintiff, to establish the fact that the defendants had willfully driven his cattle from their usual range.

Error is also assigned upon the refusal of the court to give an instruction defining the meaning of the word 'range.' In the circumstances of this case there was no error in such refusal, for the reason, as above stated, that the testimony is undisputed that the government lands from which the cattle of plaintiff were driven by the defendants was the usual range of such cattle. It is urged the testimony discloses that the range of plaintiff's cattle was over a territory much greater than the vicinity from which they were driven, and by certain instructions requested it was sought to advise the jury that no damages could be recovered under the statute for driving from one part of the range to another. Cattle unrestrained will range over a large scope of country. Where they formerly ranged, the condition of grass and water, the season of the year, and storms will cause cattle following their natural tendency to roam more or less; but it is not necessary, in order to establish a cause of action under the statutes, that they be driven beyond the limits of the territory within which they may naturally range. Willful driving to any material extent from public domain within such territory to another locality, within or without such territory, is driving from their usual range.

An instruction was also requested to the effect that lands which are the subject of private ownership do not constitute a cattle range within the meaning of the law against the expressed will of the owner. We do not see how the refusal of this instruction could have in any manner prejudiced the defendants. There was no claim on the...