United States v. Buford

• Decision Date: 06 July 1892
• Citation: United States v. Buford, 30 P. 433, 8 Utah 173 (Utah 1892)
• Court: Utah Supreme Court
• Parties: UNITED STATES, RESPONDENT, v. MARCUS B. BUFORD AND OTHERS, APPELLANTS

30 P. 433

8 Utah 173

UNITED STATES, RESPONDENT, v. MARCUS B. BUFORD AND OTHERS, APPELLANTS

Supreme Court of Utah

July 6, 1892

APPEAL from a judgment of the district court of the first district. The opinion states the facts.

Affirmed.

Messrs Evans and Rogers, for the appellants.

Cited United States v. Douglas Willan-Sartoris Co., 22 P 92.

Mr Charles S. Varian, U. S. District Attorney, for the respondent.

BLACKBURN, J. ZANE, C. J., and ANDERSON, J., concurred.

OPINION

BLACKBURN, J.:

The appellants were convicted on an indictment charging them with fencing in the public lands contrary to the statute of the United States. A motion was made for a new trial, the motion overruled, and the defendants appeal. The statute of the United States is as follows: "That all inclosures of any public lands of any territory of the United States heretofore or hereafter made by any person, to any of which land included within the inclosure the person making or controlling such inclosure had no right or color of title made or acquired in good faith, or an asserted right thereto by or under claim made in good faith, with a view to entry thereof, at the proper land office, under the general laws of the United States, at the time such inclosure was or shall be made, are hereby declared to be unlawful, and the maintenance, construction, or control of any such inclosure is hereby forbidden and prohibited, and the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States, without claim, color of title, or asserted right, as above specified, as to inclosure, is likewise declared unlawful, and hereby prohibited." 23 St. at Large, p. 321. The indictment charges the violation of this section by inclosing eight sections of public lands; also a violation of § 3, which prohibits the obstructing free passage or transit over public lands. The case was submitted to the jury on an agreed statement, as follows: "(1) That defendants constructed and maintained the fence mentioned in the indictment; that it inclosed sections 8 and 26 in township 11, sections 32 and 26 in township 12, and section 36 in township 13, all in range 5. (2) That the lands were public lands subject to entry under the land laws of the United States, and that no lawful filing had been attached or entry made. (3) That the fence was constructed, etc., wholly on lands owned and possessed by defendants, being the alternate and odd-numbered sections granted the Central Pacific Railroad Company of California by certain acts of Congress, and even-numbered sections, as to which entries were filed in behalf of defendants and licensees prior to the building of the fence, which during the times mentioned in the indictment were in force and effect." There was no other evidence submitted to the jury. The defendants moved the court to instruct the jury to find a verdict of acquittal. The court refused, and defendants excepted. And thereupon the court instructed the jury, among other things, "that if they believed, beyond a reasonable doubt, that the facts as admitted were true, and that the offense charged was established by the admissions, and that the defendants constructed and maintained the fence with an unlawful purpose and intent to inclose the land of the United States, and, at the time of such inclosure, they had no claim or color of title made or acquired in good faith thereto, or an asserted right thereto, by or under any claim made in good faith, with a view to entry thereon under the laws of the United States they should find the defendants guilty." The court further instructed the jury that the fact, if shown, that the defendants built the fence on their own land, would not justify them in doing so, provided such fence and inclosure was so constructed by them as to purposely, intentionally, and exclusively inclose the government land in the same inclosure for their exclusive use, and...