United States v. Elliot

• Decision Date: 01 July 1891
• Citation: 7 Utah 389,26 P. 1117
• Court: Utah Supreme Court
• Parties: UNITED STATES, RESPONDENT, v. LEWIS A. SCOTT ELLIOT, APPELLANT

26 P. 1117

7 Utah 389

UNITED STATES, RESPONDENT, v. LEWIS A. SCOTT ELLIOT, APPELLANT

Supreme Court of Utah

July 1, 1891

APPEAL from a judgment of the district court of the first district and from an order overruling a motion for a new trial. The opinion states the facts.

Reversed.

Mr Graham F. Putnam, with Messrs. Thurman and King on the brief for the appellant.

Mr David Evans, Assistant U. S. Attorney, with Mr. George Sutherland on the brief, for the respondent.

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

OPINION

ANDERSON, J.:

This is an action against the defendant for unlawfully inclosing public lands. The lands in question are what are called "school lands," being a part of section 16, in township 15 S., of range 13 E., of the Salt Lake meridian, and have been surveyed by the government. The defendant owns land on two sides of the section, and in fencing his own land constructed his fence diagonally across the section, inclosing about 400 acres of it. He averred in his answer that he inclosed the land in good faith, intending to acquire a title to it as soon as it came into the market. The cause was tried to the court without a jury, and the court found the inclosure unlawful, and judgment was rendered against the defendant, and the fence was ordered to be destroyed unless the defendant should remove it within five days. There was a motion for a new trial, which was overruled, and the defendant brings this appeal from the order overruling this motion and from the judgment. The sole question for our determination is whether sections 16 and 36 in each township, and known as "school lands," after the same have been surveyed by the government, are "public lands," within the meaning of the act of congress of February 25, 1885 (23 St. at Large, 321), prohibiting the fencing of public lands.

By the organic act of Utah Territory, approved September 9, 1850, it is provided "that, when the lands in said Territory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered sixteen and thirty-six in each township in said Territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in said Territory, and in the states and territories hereafter to be erected out of the same." By section 1 of the act of congress approved February 25, 1885, it is provided "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, * * * to any of which land included within the inclosure the person * * * making or constructing the inclosure had 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 landoffice under the general land 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; and the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States in any of the states or territories 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." Section 2 of this act provides "that it shall be the duty of the district attorney of the United States for the proper district, on affidavit filed with him by any citizen of the United States that section 1 of this act is being violated, * * * to institute a civil suit in the proper United States district or circuit court or territorial district court, in the name of the United States, and against the parties named or described, who shall be in charge of or controlling the inclosure complained of as defendants. * * * In any case, if the inclosure shall be found unlawful, the court shall make the proper order, judgment, or decree for the destruction of the inclosure, in a summary way, unless the inclosure shall be removed by the defendant within five days after the order of the court."

By the organic act for Utah, sections 16 and 36 in each township were reserved for the purpose of being applied to schools in the territory, and they thereby became segregated from the public domain as soon as surveyed, and were no longer open to settlement under the general statutes regulating this subject. It was held in Wilcox v. Jackson, 13 Pet. 498, that, "whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands, and that no subsequent law or proclamation or sale would be construed to embrace it, although no reservation were made of it." This rule was afterwards approved by the same court in University v. Indiana, 14 HOW 268. A reservation of lands for school purposes for the use of the people of a Territory or State is, in effect, a grant, and the title passes as soon as the lands are surveyed, and patents for school sections are not necessary and are not issued (Gaines v. Nicholson, 50 U.S. 356, 9 HOW 356, 13 L.Ed. 172); and the act reserving them is irrevocable, without the consent of the people of the Territory (Minnesota v. Bachelder, 68 U.S. 109, 1 Wall. 109, 17 L.Ed. 551).

In Ferry v. Street, 4 Utah 521, 7 P. 712, and 11 P. 571, this court,...