United States v. Shannon

Citation151 F. 863
Decision Date18 March 1907
Docket Number725.
PartiesUNITED STATES v. SHANNON.
CourtUnited States District Courts. 9th Circuit. United States District Court (Montana)

Carl Rasch, U.S. Atty.

Edward Horsky and Ransom Cooper, for defendant.

HUNT District Judge.

The United States brought this action against the defendant Thomas Shannon, to enjoin him from driving and conducting, or causing, or permitting to be driven or conducted, cattle belonging to him to or upon the Little Belt Mountain Forest Reserve within Montana, and from permitting or allowing his cattle to go upon or remain upon the said reserve. Temporary injunction was issued, as prayed for by the complainant.

The bill alleges that the Little Belt Mountain Forest Reserve was created by proclamation of the President, on August 16, 1902 and that during December, 1904, and prior thereto, the defendant wrongfully and unlawfully, and without right or authority, and without having obtained a permit from the Secretary of the Interior, or the Commissioner of the General Land Office, and in violation of law, and in disregard of the rules and regulations of the Secretary of the Interior, did drive and conduct, and cause to be driven and conducted, upon the said reserve 300 head of cattle, and has permitted the cattle to remain upon the reserve for the purpose of grazing and feeding, to the permanent and irreparable damage and injury of the said reserve, and destructive of the objects for which the reserve was created. The defendant denied the material allegations of the bill, with respect to permitting his cattle to go upon the reserve and to remain thereon. Testimony was taken before a referee. Defendant appeared, but offered no evidence

It appears that Shannon, the defendant, raises cattle and owns a tract of 320 acres of land, 160 acres of which he acquired under the homestead law, and which lie next to the forest reserve. The rest of his land he acquired under the desert land act. It lies within the limits of the reserve. Shannon's home ranch is from six to ten miles northeast of the area particularly involved in this case, which is that part of the reserve known as 'Lone Tree Park.' The grazing privileges of the reserve are divided into four districts; Lone Tree Park being a district including a basin on the edge of the mountains. When Shannon bought part of his land there was a fence upon it, which was afterwards opened or permitted to become open, by Shannon, so that Shannon's stock had free access to the reserve. He has not kept the fence up; his contention being that he is not obliged to. Shannon has no permit from the Interior Department permitting him to graze his cattle upon the reserve, and it clearly appears that he knew that his cattle were upon the reserve, and that he made no effort to remove them therefrom; his custom having been to turn his cattle upon his own land, and from there they went to the reserve. The Secretary of the Interior limited the number of cattle and sheep which could graze upon the reserve in 1904, 1905, and 1906. It sufficiently appears that damage to the water supply is done by the grazing of more cattle in Lone Tree Park than the number authorized by the Secretary of the Interior, and that the young growth of willows and underbrush is seriously injured by the tramping of cattle.

In considering the several features of this case, it must be conceded that defendant's counsel is correct in his argument that the general policy of the state of Montana, voiced through its laws, is that owners of stock are permitted to have their cattle at large, and that they may feed upon the open public domain, and that an owner of lands not fenced is without remedy for the loss of grasses which may be eaten by animals so ranging; and, furthermore, that generally an owner of lands in Montana must fence out cattle, if he would prevent their going upon lands which are his. But, notwithstanding these things, the question is, was it intended, and can it be, that this state policy obtains with sufficient force to curtail the power of the United States to forbid entry upon its forest reserves by cattle owned by a stockgrower of the state? The question is thus broadly put, because the facts justify a consideration of the case from the standpoint outlined, and because it is desirable that a ruling should be had defining the legal position of the general government and the stockowner whose cattle may drift inside a forest reservation. The substance of the argument of the learned counsel for the defendant is that Congress must have recognized the policy of the law of the state already referred to, and that therefore it should be deemed to have acted in all that it has done in the matter of forest reserves with the public policy of the state in view; hence, that no construction of the acts of Congress, empowering the Secretary of the Interior to make rules and regulations insuring the objects for which forest reservations are created, can be accurate if the effect is to require an owner of cattle to keep his animals off the reserve.

Let us remember that we are not now dealing with a question of a regulation by the Secretary of the Interior, which makes a violation thereof a crime. Were such the point of inquiry, principles not necessarily here applicable would have to be discussed. United States v. Eaton, 144 U.S. 677, 12 Sup.Ct. 764, 36 L.Ed. 591; United States v. Mathews (D.C.) 146 F. 306. We can therefore eliminate any question of the liberty of the citizen, and proceed to inquire into the matter of the policy of the state concerning cattle growers, to ascertain the force of that policy in the present instance. Long before the state was admitted, the policy of the United States was to preserve and exercise exclusive right of full dominion over the public lands belonging to it. True, in many cases the United States never interfered at all with use and occupancy of its unoccupied lands by individuals within the several states; for example, it did not seek to prevent animals running at large upon the public domain within Montana and other western states where stockgrowing is a principal industry. Until the last few years of its existence as a territory, Montana was very sparsely settled. Agriculture was limited. There was but slight demand for public lands, and comparatively none for the foothills of the mountains, and for the grazing lands upon the great benches above the valleys. Stockgrowers could put their cattle or horses or sheep wheresoever they pleased upon such lands without apprehension that their ranges would ever be sought by homestead settlers desiring to enter the lands, cultivate them, and turn them into profitable farms, or that, in time to come, forest preservation would become a fixed national policy. Accordingly, under such conditions, the general government, not only took no action to exclude stockgrowers from using its lands, but rather lent such encouragement to the industry as naturally followed the privilege of unlimited open range. Nevertheless, the general government has been consistent in its attitude of a proprietorship, which has enabled it, not only to maintain its possession, but to maintain its possession exclusively if it pleased to do so, and to prosecute those who have trespassed upon the public lands if it has seen fit. That it has not always exercised the right of exclusive possession by action to prevent trespass or use is one thing; but that the right has always existed is another, and a wholly different matter. The exercise of the right may have been a mere question of policy that has been pursued or not as circumstances may have justified; but the right is in the nature of a trust in the general government for the people of the United States, never subordinate, but parmount to the policy or law of a state which would seek to curtail the full enjoyment of such right. The public lands belong to the United States, and no trespass of the kind involved herein, even though countenanced for years by the government, can imply authority in the trespasser as against the United States, or bar its right at any time to forbid a continuance of such trespass.

Article 4, Sec. 3, of the Constitution provides:

'That Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.'

This constitutional power is supreme; and the disposal of public lands in the state by act of Congress can in no way be limited by state statute. In Jourdan v. Barrett, 4 How. 169, 11 L.Ed. 924, the power of disposal of the public lands was spoken of in these words:

'By the Constitution, Congress is given 'power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States'; for the disposal of the public lands, therefore, in the new states, where such lands lie, Congress may provide by law, and, having the constitutional power to pass the law, it is supreme; so Congress may prohibit and punish trespassers on the public lands. Having the power of disposal and of protection, Congress alone can deal with the title, and no state law, whether of limitations or otherwise, can defeat such title.'

And later, in Gibson v. Chouteau, 13 Wall. 92, 20 L.Ed. 534, Justice Field, for the court, said:

'With respect to the public domain, the Constitution vests in Congress the power of disposition and of making all needful rules and regulations. That power is subject to no limitations. Congress has the absolute right to prescribe the times, the conditions, and the mode of transferring this property, or any part of it, and to designate the persons to whom the transfer shall be made. No state legislation can interfere with this right or embarrass its exercise; and to
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  • State v. Omaechevviaria
    • United States
    • Idaho Supreme Court
    • October 5, 1915
    ... ... v. Commonwealth, 99 Ky. 132, 59 Am. St. 457, 35 S.W ... 129, 33 L. R. A. 209; Tozer v. United States, 52 F ... 917; Knight v. Trigg, 16 Idaho 256, 100 P. 1060; ... Anderson v. Great Northern ... can in no way be limited by state statute." (United ... States v. Shannon, 151 F. 863, 866; David v ... Rickabaugh, 32 Iowa 540; Farrington v. Wilson, 29 Wis ... 383, ... ...
  • United States v. Grimaud
    • United States
    • U.S. District Court — Southern District of California
    • May 3, 1909
    ...is to determine and define a crime, which, according to all the authorities, is a matter of legislative discretion. In United States v. Shannon (C.C.) 151 F. 863, 865, court says: 'Let us remember that we are not now dealing with a question of a regulation by the Secretary of the Interior, ......
  • UNITED STATES V. GRIMAUD
    • United States
    • U.S. Supreme Court
    • May 3, 1911
    ...held to be valid for civil purposes in Dastervignes v. United States, 122 F. 30; United States v. Dastervignes, 118 Fed.199; United States v. Shannon, 151 F. 863; ibid., 160 F. 870. They were also sustained in criminal prosecutions in United States v. Deguirro, 152 F. 568; United States v. ......
  • United States v. Louisville & N.R. Co.
    • United States
    • U.S. District Court — Northern District of Alabama
    • March 15, 1910
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