United States v. Eugene Buchanan

• Citation: 58 L.Ed. 511,232 U.S. 72,34 S.Ct. 237
• Decision Date: 05 January 1914
• Docket Number: No. 589,589
• Parties: UNITED STATES, Plff. in Err., v. EUGENE BUCHANAN
• Court: United States Supreme Court

232 U.S. 72

34 S.Ct. 237

58 L.Ed. 511

UNITED STATES, Plff. in Err.,

v EUGENE BUCHANAN.

No. 589.

Argued December 3, 1913.

Decided January 5, 1914.

The grand jury for the district of Colorado indicted Buchanan for a violation of the act 'to prevent unlawful occupancy of the public land.' The indictment charged that in February, 1907, one Edward Scott made a homestead entry, at the proper office, of a quarter section of land in Colorado, and died, March 28, 1910, leaving the homestead entry in full force and effect; that thereafter 'his heirs were in lawful possession of and were engaged in cultivating the said homestead land for the purpose of protecting their right as heirs to the same, until May 9, 1911, when the defendant, Buchanan, wilfully, wickedly, unlawfully, and feloniously did prevent and obstruct said heirs from peaceably entering upon and establishing a settlement and residence on the said homesteaded land of the United States subject to settlement and entry under the public land laws.' The defendant demurred on the ground that the facts charged did not constitute an offense punishable under § 3 of the act of February 25, 1885 (23 Stat. at L. 322, chap. 149, U. S. Comp. Stat. 1901, p. 1525), which provides:

'Sec. 3. That no person, by force, threats, intimidation, or by any fencing or inclosing, or any other unlawful means, shall prevent or obstruct, . . . any person from peaceably entering upon or establishing a settlement or residence on any tract of public land subject to settlement or entry under the public land laws of the United States.'

The defendant's demurrer was sustained and the government brought the case here under the criminal appeals act.

Assistant Attorney General Knaebel and Mr. S. W. Williams for plaintiff in error.

Messrs. S. E. Naugle and C. W. Waterman for defendant in error.

Statement by Mr. Justice Lamar:

Mr. Justice Lamar, after making the foregoing statement of facts, delivered the opinion of the court:

The statute under which the defendant was indicted makes it unlawful to prevent 'any person from peaceably entering upon or establishing a settlement or residence on public land, subject to settlement or entry.' The indictment charges that the defendant prevented the heirs of the homesteader 'from entering upon and establishing a settlement and residence on homesteaded lands of the United States subject to settlement and entry.' This difference between the language of the statute—'public land of the United States'—and the charge in the indictment—'homesteaded land of the United States'—raises the question whether, after entry and before patent, land covered by a homestead claim is public land within the meaning of the act 'to prevent unlawful occupancy of the public land.'

In construing the statute it must be remembered that at the time of its passage in 1885, by tacit consent of the government, any person could graze sheep and cattle upon any part of the public domain. Buford v. Houtz, 133 U. S. 326, 33 L. ed. 620, 10 Sup. Ct. Rep. 305; Light v. United States, 220 U. S. 535, 55 L. ed. 573, 31 Sup. Ct. Rep. 485. Many availed themselves of this privilege, and the cattle of different owners fed together on the open prairie, no one claiming that thereby any exclusive right had been acquired. The first fences were built only around very small areas. But from this small beginning the practice rapidly grew, until in some cases vast tracts were fenced in by herdsmen who treated the land as though it was their own property. 5 H. R. 1325, 48th Cong. 1st Sess. These unlawful fences not only closed the roads and obstructed the mails, but there were occasions in which citizens were prevented from peaceably taking possession of these inclosed public lands, and by settlement thereon securing the right to enter the same at the register's office.

Under these circumstances Congress passed the act intended to protect the rights of the United States as proprietor, by making unlawful 'all inclosures of any public land;' to prevent obstruction of the roads; to create a method for summary removal of fences; and to provide a punishment for those who prevented others from entering upon or establishing a settlement on public land subject to settlement or entry. But all its provisions related to pubic lands—not to private lands; to land subject to entry—not to land which had been entered in the register's office; to land subject to settlement—not to land on which a settlement had already been established. For, as shown by the context, the word 'established' did not mean 'to fix unalterably' (Osborne v. San Diego Land & Town Co. 178 U. S. 39, 44 L. ed. 969, 20 Sup. Ct. Rep. 860, but to create or set up the settlement which had to be made prior to entry at the register's office in the case of a pre-emptor, and could be so made in the case of a homesteader. Rev. Stat. § 2289, U. S. Comp. Stat. 1901, p. 1388, Rev. Stat. §§ 2259, 2263, 2264, act of May 14, 1880, 21 Stat. at L. 140, chap. 89, § 3, U. S. Comp. Stat. 1901, p. 1393. Stearns v. United States, 82 C. C. A. 48, 152 Fed. 902(10); 4 Ops. Atty. Gen. 493. These provisions refer not to something to be done in the future, but to a settlement already completed, and require that within thirty days after this finished act, proof of such settlement shall be...