State v. Goodnight
| Decision Date | 01 July 1888 |
| Citation | 11 S.W. 119 |
| Parties | STATE <I>ex rel.</I> TEMPLETON, Attorney General, <I>v.</I> GOODNIGHT.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Supreme Court |
Appeal from district court, Donley county; FRANK WILLIS, Judge.
Petition for mandatory injunction by the state of Texas ex rel. John D. Templeton, Atty. Gen., against Charles Goodnight. Demurrer to petition sustained, petition dismissed, and the state appeals.
John D. Templeton, Atty. Gen., for the State. Walton, Hill & Walton, for appellee.
On the 5th of May, 1886, the state of Texas, by John D. Templeton, its attorney general, filed its petition against the appellee, Charles Goodnight, for a mandatory injunction to compel the removal of certain inclosures around public lands of the state, and to restrain the construction of any additional fences. The defendant filed a plea in abatement on the ground that there was a want of necessary parties to the action; and also a general demurrer to the petition. The plaintiff excepted to the plea in abatement, and the exceptions were overruled. The court then sustained the demurrer to the petition, and, the state declining to amend, the petition was dismissed.
We are of the opinion that the demurrer to the petition was improperly sustained. The allegations show that the defendant had practically inclosed, for the purposes of pasturing and raising cattle and horses, over 600,000 acres of the public school lands of the state; and also over 14,000 acres of its unappropriated public domain; and that, when the fences are not continuous, the inclosures are "guarded by line riders, or in some other equally effective manner." It is alleged that the inclosures prevent the use of the public lands so inclosed as commons for grazing purposes by the inhabitants of the state, and greatly interfere with the moving of stock to market by her people, and obstruct the travel of the public; and that they are contrary to the policy of the state, are expressly forbidden by the act of the legislature, approved February 7, 1884, and seriously impede the sale of the lands under the laws which have been enacted for that purpose. We think the inclosures set forth in the petition both a purpresture and a public nuisance. "A purpresture strictly is an encroachment upon a public right in lands or navigable streams that does not operate as an obstruction or injury to individual members of the public, but only to some right incident and peculiar to it in its aggregate capacity as such." Wood, Nuis. § 84, p. 87. In so far as the fences alleged in the petition interfere with the sale or lease of the public lands, the petition shows an injury to the public as an aggregate body; they affect all alike. This is an obstruction of a right which the state, before the passage of the act of February 7, 1884, might have waived, but which, since the passage of that act, it becomes the duty of its proper officers to remove by legal proceedings. But the obstruction complained of in this case is something move than an interference with the rights of the state as a body politic. In so far as it obstructs the right of common in the public lands, and the moving of cattle to market, and their passage in being removed from one part of the country to the other, it is an interference with individual rights to public property. The inclosure of public lands for private use, whether viewed as a wrong merely to the body politic or as an infringement of the privileges of its citizens, is a nuisance subject to be abated at the suit of the state, and an injunction is a well-organized and appropriate remedy. U.S. v. Ranch Co., 25 Fed. Rep. 465, 26 Fed. Rep. 218; Railway Co. v. Ward, 2 Black, 485; State v. Atkinson, 24 Vt. 448; State v. Woodward, 23 Vt. 92; Attorney General v. Woods, 108 Mass. 436; Lead Co.'s Appeal, 96 Pa. St. 116.
But it is insisted in the brief of counsel for appellee that the state has a plain, adequate, and complete remedy without resort to the writ of injunction. We understand it to be claimed, in the first place, that because the act of February 7, 1884, makes the inclosure of the public lands a penal offense, and provides for the prosecution and punishment of offenders against it, that therefore a court of equity will not interfere. But this proposition cannot be maintained. Public nuisances were indictable at common law, and yet were always subjected to be enjoined. People v. St. Louis, 5 Gilman, 351; Lead Co.'s Appeal, 96 Pa. St. 116; Attorney General v. Hunter, 1 Dev. Eq. 12; Railway Co. v. Ward, 2 Black, 485. In Attorney General v. Woods, 108 Mass. 436, an injunction was held to be a proper remedy, although the statute which declared the nuisance which was sought to be enjoined made provision for the indictment of those who offended against its requirements. Besides, the act provides that its provisions shall not apply to any person or corporation who has heretofore, or who may thereafter, in good faith fence land not his own. Acts 1884, p. 69, § 3. Hence a criminal prosecution would not succeed, unless it were shown beyond a reasonable doubt that the inclosure was erected with unlawful intent; whereas, in a suit for an injunction, proof of good faith would constitute no defense.
But we are also referred to our statutes, which provide for the action of trespass to try...
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