United States v. Douglas-Willan Sartoris Co.

• Decision Date: 06 June 1889
• Citation: 3 Wyo. 287,22 P. 92
• Parties: UNITED STATES v. DOUGLAS-WILLAN SARTORIS CO
• Court: Wyoming Supreme Court

22 P. 92

3 Wyo. 287

UNITED STATES v. DOUGLAS-WILLAN SARTORIS CO

Supreme Court of Wyoming

June 6, 1889

Error to district court, Albany county.

This was a proceeding in equity by the United States to restrain defendant corporation from unlawfully inclosing public lands. The district court dissolved the temporary injunction, and dismissed the petition. The plaintiff brings error.

Judgment affirmed.

A. C Campbell, U. S. Atty., and Wm. W. Peck, for plaintiff in error.

Brown Blake & Arnold and Corlett, Lacey & Riner, for defendant in error.

SAUFLEY J. MAGINNIS, C. J., dissenting.

OPINION

SAUFLEY, J., delivered the following separate opinion:

On the 1st day of July, 1862, the congress of the United States passed an act entitled "An act to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific ocean, and to secure to the government the use of the same for postal, military, and other purposes." By the first section of this act the Union Pacific Railroad Company was created, erected into a body corporate, and given the customary powers of a corporation. By the third section there was, in express terms, granted to the corporation, for the purpose of aiding in the construction of its line of railway, and for other avowed purposes, every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile, on each side of the line of railway, and within the limits of 10 miles on each side of the road. By supplemental legislation the grant was so extended as to comprise a belt of 40 miles, or 20 miles on each side of the road. It is agreed by counsel, as per statement of agreed facts on file, that whatever title the Union Pacific Railroad Company had in and to the aforesaid odd-numbered sections was regularly transmitted to the Union Pacific Railway Company, and by the latter transmitted to the Wyoming Land & Improvement Company, and by the lastnamed company to the defendant corporation.

The chief point of contention between the plaintiff and the defendant in error arises out of the asserted right of defendant to build and maintain upon its own land a fence which will operate as an inclosure of the public land. In other words, the complaint of the government is, substantially, that the Douglas-Willan Sartoris Company, with the sole and unlawful design of inclosing the lands of the government, has planned, already built, and proposes to build, a continuous line of barbed-wire fence, which, when completed, will have the effect to sever from the public domain over 200 even-numbered sections in 12 townships, situate in a compact body, and of the form of a quadrilateral. By those familiar with the frame-work of the rectangular system of surveying it is well understood that, after the initial point for the survey within a given surveying district is agreed upon, a principal base line is run east and west therefrom, on a true parallel of latitude. Beginning thereafter at the same initial point, a principal meridian is extended north and south therefrom. Lines, called "standard parallels," are then run every four townships, or 24 miles, north of the base line, and every five townships, or 30 miles, south of the base line. This being done, lines called "guide meridians" are surveyed at intervals of eight ranges, or 48 miles. The parallelograms thus formed are divided into townships, sections, and parts of sections. Each section of every township is numbered, beginning with the numeral 1, and ending with the number 36. For the purpose of this case, the section may be regarded as the unit of the rectangular system. From the pleadings and exhibits it sufficiently appears that the inclosure, as already built and threatened to be built, may be generally described as beginning in section 35, township 17, range 76, and utilizing in its course certain linear fragments of pre-built fence of other parties, as well as the shores of certain lakes; running thence in a north-westerly course; thence deflecting eastwardly; thence north-westerly, until it reaches the northern section line of section 3, township 19, range 76; thence, on a comparatively right line, until it reaches the east line of section 3, township 19, range 75; and thence southerly, ranging south-westerly, until it reaches a point a few sections only from the beginning. The description is inexact, but may serve to illustrate, in the absence of a diagram, the principles of this opinion. By stipulation between the parties the following facts are agreed: That the fence already built is wholly on odd-numbered sections; that the fence proposed to be built will be, if completed, wholly on odd-numbered sections; that the entire line, if completed, will be about four inches from the section lines; that when the corner-stones, which mark the point of contact between the retained and granted sections, are reached, they will be leaped; and that the defendant has neither joined to them nor will join to them.

It is obvious, and in argument is so conceded, that the incidental effect of a fence so located will be to encompass the even-numbered sections of the public domain situate within this large area. The action, therefore, by the government, seeks, in aid of ulterior purposes, the destruction of the fence already built, and a perpetual injunction against its completion on the lines indicated. It is brought under an act of the congress of the United States approved February 25, 1885, entitled "An act to prevent unlawful occupancy of the public lands." 23 U.S. St. 1883-85. The first section provides "that all inclosures of any public lands in any state or territory of the United States heretofore or to be hereafter made, erected, or constructed by any person, party, association, or corporation, to any of which lands included within the inclosure the person, party, association, or corporation making or inclosing the inclosure have no claim 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 any such inclosure was or shall be made, are hereby declared to be unlawful, and the maintenance, erection, construction, or control of any such inclosure is hereby forbidden and prohibited." The second section directs district United States attorneys, on complaint made, to institute civil suits against offending parties, confers jurisdiction upon territorial and other courts to hear and determine the complaint by proceedings in equity, and by writ of injunction, and by final judgment, to summarily decree the destruction of the inclosure. The remaining sections forbid the obstruction, by threats or intimidation, of a settlement on or transit over the public domain, fix penalties, and prescribe the duties of the president in relation to obstructions.

It is insisted by counsel for the defendant that the act quoted was not intended to prohibit, and does not in terms prohibit, that character of inclosure which results incidentally, though necessarily, from maintenance of a continuous line of fence built wholly on his own land, but was intended to forbid, and does forbid, only the construction of fences or other obstructions which are actually erected on land belonging to the government. The only argument advanced in support of this proposition is that, when a statute is susceptible of two constructions, one shall prevail which will not result in the violation of vested or constitutional rights. Counsel cite U.S. v. Brandestein, 13 Sawy. 64, 32 F. 738, (opinion by Judge HOFFMAN, of the district court of California.) That action was instituted under the act of February 25th, just quoted. The point of contention between opposing counsel seemed to be whether the grant of land to the Southern Pacific Railroad by the act of June 27, 1866, was a grant in praesenti, or was in effect an agreement or provision that the title should in the future be conveyed to the corporation on the performance by it of certain conditions precedent. On this point of contention the learned judge pretermitted an expression of decided opinion, and held, in harmony with the view taken by counsel for this defendant, that the act was not intended to prohibit the erection of fences by the defendants on their own land, although such structure served to complete an inclosure of the public domain. My brother, Justice CORN, entertains an opinion similar to that of Judge HOFFMAN, predicating his views. as I understand them, upon the idea that, whatever may be the apparent meaning of the language of the statute, it will not be presumed that it was the legislative intent to forbid to an owner of land the right to erect a fence on his own property, unless such intent be clearly expressed in the statute. The chief justice is of opinion that the act was intended to apply to the case of the defendant, and that it is a valid and constitutional enactment. I concur with the chief justice on the first branch of the propositions, and differ from him on the second.

[SEE CHART IN ORIGINAL]

If the interpretation which gives to the act so limited an application be correct, the inquiry suggests itself, what special object did congress have in enacting the first section of the act? A purpresture is an offense at common law, and, whether it does or does not amount to a nuisance the courts of common-law jurisdiction have power to abate it, and in numerous instances an injunction will lie to prevent it; so, if the destruction and prevention of an inclosure, erected and to be erected solely on public lands, is the limit of the application of this act of congress, then to me it clearly appears that...