United States v. Johnston

• Decision Date: 04 March 1941
• Docket Number: No. 4.,4.
• Citation: 38 F. Supp. 4
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES v. JOHNSTON et al.

38 F. Supp. 4

UNITED STATES v.JOHNSTON et al.

No. 4.

District Court, S. D. West Virginia, At Lewisburg.

March 4, 1941.

Lemuel R. Via, U. S. Atty., of Huntington, W. Va., and Charles M. Love, Jr., Asst. U. S. Atty., of Charleston, W. Va., for plaintiff.

Summers H. Sharp, of Marlinton, W. Va., for defendants.

McCLINTIC, District Judge.

The United States of America, as a corporation sovereign and body politic, instituted a civil action in this court against Sol H. Johnston, Mrs. Sol H. Johnston, Mrs. Mona Bowling and Cletis Johnston, praying that these defendants be permanently enjoined, inhibited and restrained from further trespassing upon certain lands owned by the United States of America, called the Monongahela National Forest, and situate in Pocahontas County, West Virginia, within this district.

The complaint set out the title to the lands claimed to be trespassed upon, the possession thereof by the plaintiff, the laws of the United States relative thereto, and the regulations made by the Secretary of Agriculture in pursuance of such laws for the protection of the forest from depredations and fire.

The complaint also charged the defendants, and especially the defendant, Sol H. Johnston, with causing irreparable damage to the freehold and lands of the plaintiff because he permitted and caused the cattle, sheep and horses, owned by him and in his control, to graze and forage upon and over a part of the said Monongahela National Forest, and defied the officers and agents of the plaintiff to prevent the trespassing of these animals upon the lands of the United States.

The defendants answered and admitted, either in their answer or by stipulations in the evidence, the allegations of the bill, except the defendants averred that the rules, regulations and provisions set out in the bill as having been promulgated by the Secretary of Agriculture were unreasonable and unenforceable and did not have the effect of law, and further averred that the enforcement of such rules, regulations and provisions would be tantamount to the confiscation of the properties of these defendants by the plaintiff without just compensation therefor.

The defendants further averred that they had not committed the acts of defying the officers of the United States as claimed by the plaintiff, and further averred that they owned about seven hundred acres of land adjoining the lands of the plaintiff, and that of this amount about five hundred and thirty-six acres of their land were not fenced, but lay outside of their enclosure, and further averred that it would not be just to deny the defendants the right to use their lands in a lawful way, such as grazing their own stock thereon, and that they were willing to build their part of the fence between the lands of the plaintiff and the defendants as required by the laws of the State of West Virginia, and further averred that it would not be just to them for the plaintiff to require the defendants to build the whole of the fence at the expense of the defendants.

It was stipulated between the parties that the questions of fact stated in the bill of complaint, except as to paragraph eight, were agreed to.(Paragraph eight related to the allegations of damage to the freehold.)It was further stipulated that the plaintiff owned the lands claimed by it and that the defendants owned the lands, being proved to be six hundred and ninety-two acres, as claimed by them.

Evidence of witnesses was then taken, which evidence proved that the defendants owned about sixty-five sheep, eighteen cows and seven horses, which it was their custom to graze on the lands of the defendants outside of their enclosure, except at times when only part of the horses were turned out to graze thereon.

It was proven that the five hundred and thirty-six acres of defendants' lands, not enclosed, were joined on three sides with the lands of the plaintiff.

It was further proven that the plaintiff was reforesting a part of its lands by the planting of small trees thereon, and it was further proven that the stock of the defendants, while turned out by them upon their own lands, would stray over onto the lands of the plaintiff, and that there were unpleasant dealings between the agents of the plaintiff and the defendants relative to this trespassing of the stock of the defendants upon the lands of the plaintiff.There were some unnecessary actions on the part of the agents of the plaintiff in driving some of the defendants' sheep a long distance away from the lands of the defendants, and which sheep perished without any knowledge of the defendants as to what had become of them.

The Congress has declared the purposes for which national forests are established to be to improve and protect the forest within the reservation, and for the purpose of securing favorable condition of water flows, and to furnish a continuous supply of timber for the use and necessities of the citizens of the United States.16 U.S.C.A. § 475.

The Congress authorized the Secretary of Agriculture to make such rules and regulations as would be necessary to insure the objects for the creation of such reservations, and the Congress made the violation of such rules and regulations a penal offense.

Section 551 of 16 U.S.C.A. is as follows: "The Secretary of Agriculture shall make provisions for the protection against destruction by fire and depredations upon the public forests and national forests which may have been set aside or which may be hereafter set aside under the provisions of section 471 of this title, and which may be continued; and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction; and any violation of the provisions of this actsections 473-482 of this title or such rules and regulation shall be punished as is provided for in the act of June 4, 1888, amending section 3388 of...