Omaha daily bee., 1884-11-14
: JUDICIAL JUDGMENTS.
fhG Brighton Ranch lCaSG Decided il
Favor If The Government.
The Temporary Restraining order
ISSUED Against the Hannibal
AZ st. joe.
THE BRIGHTON RANCH CASE.

Ranch company was rendered by Circuit
judge Brewer yesterday. This case
vast brought last February by District
Attorney Lambertson to compel the de.
PENDANT by mandatory injunction to abate
and destroy ffty-seven miles of fence
built by the Br ighton Ranch company,
and enclosing $1,000 acres of govern.
ment land in Custer county. To the pc
tition of the United States an answer
was fled by the defendant, admitting the
existence of the fence, but denying that
the lands were suited to agriculture,
and alleging that the government for a
great number of years had permitted
and allowed the lands to be
used exclusively for the graz.
ing of cattle. and that they had
licensed and tolerated the enclosure of
the public domain for suitable purposes;
that in building these fences they were
enabled to protect those engaged in agri-
culture from the cattle that otherwise
might wander upon cultivated land; that
these fences were highly beneficial to
those engaged in the cattle business, in
asmuch as it kept them under control,
and prevented them from straying away
from the range when the winter storms
came on. Cattlemen were also better
able to protect and feed their cattle when
snow covered the whole plains and kept
the stock from the grass. The answer
also averred that the defendant
owned a large number of high
graded and thoroughbred bulls which
without an enclosure would stray away
and mingle with other stock, to the great
,,o,,,it,a of fhn np~ponu Tho puua
also denied that the defendant had in any
way interfered with the operation of the
homestead, pre.emrtion and timber cul-
ture laws of the United States, or OBJ
structed any persons from making settle.
ments within said enclosure. On the
contrary they had encouraged settlement
within the enclosure, promising to fence
them IN and protect them from the dep.
relations of their cattle.
To this answer exceptions were filed
by the complainant, which were argued
at the May term of court on behalf of the
United States by district attorney Lam
bertson and John l.. Webster, Esq, and
Hon. J.. M. Woolworth for respondent.
JUDGE BREWERS OPINION.
"This case comes before us on three ex-
ceptions to the answer. Judge Dundy
and | have both examined the case and
agree in conclusions which | now an
nounce.
The underlying facts are these: The
defendant has built a fence, partly on
its own land and partly on land belong
ing the government and inclosipg a tract
of several thousand acres. This is an
action in equity to compel by mandatory
Injunction the defendant to remove it's
fence from the government land and
thus leave the Enclosed government
land .ree from all distractions
to approach. OF course, the government
title is conceded and its right to proceed
by an action of ejectment to remove the
defendant from occupancy of any of it's
land ID unques!ioned.
The question made is whether the gov.
ment can come Into a court of equity and
avail itself of the summary remedies CIV
en- by such a court. We are of the opin-
ion that it can, And whether
the action of the defendant
comes within the technical definition of
purpresture or that of a public nuisance,
we are of the opinion that the govern
ment can come into a court of equity and
by its orders put an end to this trespass
on the public rights.
Something was said in the argument in
respect to the government tolerating such
occupation of its public land, and the
answer alleges that it has been
the policy of the govern
ment TO permit occupation similar
to that of the defendant. The case of
Richter VS.. Gibbon, 111th U. S is cited
in support of this view. Doubtless the
government has and does tolerate In a
certain sense the occupation of the pub
lie lands, and wherever such occupation
Is either under the homestead or pre-
emption act or other acts, with a view
to the purchase of the land, the occupa-
ton may be considered rightful.
But the Gnswer fails to disclose
an occupation with any such intent, and
the only occupation disclosed is one, not
for the purpose of subsequent purchase,
but with the idea of getting the benefit
of the land for grazing purposes. Even
if the policy of the government hereto
fore had been to tolerate the occupation
and inclosing in of tracts of government
land for grazing purposes the fact
that au action is now commenced to put
an end to such occupation Is conclusive
that the policy of the government is
changed and no rights are required
against the government by a hitherto I'M
challenged occupation. So long as
the government does nothing an
individual might, perhaps, not
challenge the occupation by
defendant, but the right of the govern
ment to interfere, to challenge the occu.
patton and to compel the defendant to de-
sist from it is not lost by mere delay in
enforcing it.
We think, too, IN action of injunction
Is the appropriate remedy, and that an
action of ejectment would not furnish
full protection to the government.
Generally speaking any encroach.
msnt upon the public domain may be
restrained or ended by in.
junction, and in this case it
wa. not tbs msre fact that the fencs |,
built upon government land, because
such fence operates not only as an entry
upon the particular land upon which the
fence is built, but also to separate the i'm
closed lands from the general body
of the public domain. So that we
think that full and adequate remedy
can be obtained only IL a COURT of equity
which reaches the individual and compels
him to abandon and desist from any en-
croachmsnt on the public property. In
this view the first and second exceptions
must DO sustained.
WTbe third exception presents this
uueetl.u, The bill, besides alleging the