United States v. Brighton Ranche Co.

• Decision Date: 01 January 1885
• Citation: 26 F. 218
• Parties: UNITED STATES v. BRIGHTON RANCHE CO.
• Court: U.S. District Court — District of Nebraska

26 F. 218

UNITED STATES v. BRIGHTON RANCHE CO.

United States Circuit Court, D. Nebraska.

May Term, 1885

G. M Lambertson, for the United Stats.

J. M Woolworth, for defendants.

BREWER J.

This case comes before us on three exceptions to the answer. Judge DUNDY and I have each examined the case, and agree in conclusions which I now announce.

The underlying facts are these: The defendant has built a fence partly on his own land and partly on land belonging to the government, and inclosing a tract of several thousand acres. This is an action in equity to compel, by mandatory injunction, the defendant to remove its fence from the government land, and thus leave the inclosed government land free from all obstructions to approach. Of course, the government title is conceded, and its right to proceed by an action of ejectment to remove the defendant from occupancy of any of its land is unquestioned.

The question made is whether the government can come into a court of equity and avail itself of the summary remedies given by such a court. We are of the opinion that it can; and, whether the act of the defendant comes within the technical definition of purpresture of that of a public nuisance, we are of the opinion that the government can come into a court of equity and by its orders have an end put to this trespass on the public rights.

Something was said in the argument in respect to the government tolerating such occupation of its public land, and the answer alleges that it has been the policy of the government to permit occupation similar to that of the defendant. The case of Rector v. Gibbon, 111 U.S. 276, ^[1] is cited in support of this view. Doubtless the government has and does tolerate in a certain sense the occupation of the public lands, and wherever such occupation is either under the homestead or pre-emption act, or other acts, with a view to the purchase of the land, the occupation may be considered rightful. But the answer fails to disclose an occupation with any such intent, and the only occupation disclosed is one not for the purpose of subsequent purchase, but with the idea of getting the benefit of the land for grazing purposes. Even if the policy of the government heretofore had been to tolerate the occupation and inclosing of tracts of government land for grazing purposes, the fact that an action is now commenced to put an end to such occupation is conclusive that the policy of...