Omaha daily bee., 1885-06-13

lts own that 1t be iett undisturbed Tor thl
purposes it was G apart by congress. TIT
defendants are trespSssers on those land
without any color Of title recognized either il
equity, justice or law, and should be ousteJ
fiom tbs domain they have usurped.
| AT the close of Mr.. l4ambertson s argument
with continued until after l. o'clock, th,
court took a recess until o'clock.
AFTERNOON SESSION,
When Justice Miller had the court called
to order q. ? o'clock, Judge j. II. Woolwortt
attorney for the Brighton Ranch company
| commenced his argument. In substance hC
said; One settler out of tho many had heard
somebody say that they had rather have tht
fence down than there. But this witnes,
testified that ne had nevtr experienced any
trouble. When he suffered damages from
| stock MIR. Allyn had paid him for his dana.
ges.
The men who are autagonistic TO Mr.. Allyn
| are the ones who object to this fence. In the
matter of Provinces murder, two men one
named ltong killed him, but neither of them
said Judge .Woolworth, had ever been EN-
| ployes OF the Brighton Ranch company,
McDermitt ana half a dozen other men
stole half q dozen cattle and made beef of
them. In this they were detected by Allyn,
/ and prosecuted, hence the outandish tales
they have told in the case
| What we have TO determine, said the
speaker, Is whether this fence is subject for
| I1e WOulu nOJ attempt TO say tnat
| in per tee the fence might prevent settlers
from going into that section, but that any
settlers are kept away by acts of intimidation,
violence, or force, by Allyn, Ia totally denied
On the other hand MIR. Allyn's record shows
that he invited and solicited settles to 60
within the enclosure Witness after witness
have come up and testified that these lands
| inside the fencs are divided into two classes,
| viz, lands fit for agriculture and lands fit for
grazing purposes.
"Our fence" sail the Judge, runs around
the deep cut rough canyons and low lands
but leaves all the good table lands out, and
in this encosurs, all the land fit for settlement
| Is taken" The testimony of Mr.. Michael,
was read showing that he had travelled day
after day in the enclosure 20 find good lands,
that were untaken, but could find none.
Therefore the change that the fence per see
was apreventative Co settlement is perceptably
negative, The matter of pasture and water
tor cattle only one man complained, and he
had been ordered not to interfere with the
watering OF the company's cattle, to their
detriment Much complaint was made be
couse tho mail between Plum creek and Ar
mold was prevented from crossing these lands.
Ihe only structions said the speaker, was
refusal ot his clients to pay the mail carrier
$50 year for opening and closing gate.
The only interterence Mt any time was the
opening of gates, of which there are twenty
structon are these to a use of the public
lands? The record is besmeared from end to
end with personal controversies, which are
brought into court u OF to show the real ques-
tion at ISSUE but they are brought in to az,
tist the court in arriving at more severe
verdict than he otherwise would do.
This fence was built at a time when the
country was almost unoccupied. What
would have baen the policy of the country
whether the act of 1907, On the statute
book, stood or not The policy of the govern
ment for more than half q century has been
to encourage settlers to go upon the public
land and locate. The mon who came across
the river in accordance with the settled policy
ahead of congress, and ahead of the surveyor,
OF settle this very town came in defiance Of
law. When the cattle interests 10 this west
ern country sprung up fences were built and
nobody complained.
Had ANYBODY representing tha government
came to us and said that this fence was i'm
peding settlement and blocsing immigration,
and we then would have refused to remove it,
then Was time enough to bring us into court.
The general drift Of Mr.. Woolworth's ar.
gument was to the effect that this fence was
no matter to be complained about in the
courts.
A large amount of the testimony, and es
pecially that OF Bishop, the county surveyor,
who submitted platt showing the line of the
pal points set forth to clear understanding.
The platt was shown and minusely ex
planned to his honor. |
But declared the attorney you canE tell
with accuracy whether the fence is on govern. |
ment or private land, ''Plaintitfs come into !
government land. They want to prove it |
and that they have not attempted todo Al |
together, where we run detached parcels of |
land there is probably about tour miles of the |
fence on government land.
This brings us to the two questions: Firtt, |
whether the fence ia matter tor complaint by |
the government; and, secondly, whether this |
is the proper tribunal in which to try the con-
troversy.
These settlers have made claims in pur-
suance Of the laws of the United States. If |
they have the right to go upon these lands,
improve and enjoy them, they have rights
against which the government can't complain.
A number of established authorities were
quoted from to sustain the defensive PROPOSE.
ton.
Part of the fence is on patented land, and
how much ia not? From the record nobody
can specify. and for that reason the speaker
thought it would be a hard matter for
the court to make decree prostratinR the
fence. All the charges, continued Mr.. Weol-
worth, about entries of public lands in Custer
county being made fraudulsntly and for the
are false charges, and charges that
he cared nothing about
In this court of equity, the rule provides
that the bill complaining must establish that
a real injury exists.
Ii 1t is true that this fence doesn't enclose
lands that any body wants, if it is true hat it
don't prevent anybody from going into the
then Is the government injured? 1t
's ue that SONS years ago men went up TO
the fence and looked into the enclosure, then
went away, but they didn't think the land
was worth taking, is the only reason
why they went away. When you come to
lind that there are openings in the fence and
twenty-five gates besides, how can it be shown
that the government Is Injured"
such another case can't be found in the
books. II this action has any application to
this case, it can't be forcsd in this manner"
The following statutory provision, which
had been quoted by the district attorney in
l's argument, was read by Mr.. Woolwoth.
n reply to VIII ch he gave reasons showing
Why it does not apply:
That no person, by force, threats, intimi-
iation, or by any fencing or inclosing, or any
'ther unlawful means, shall pre-
vent or Obstruct, or shall combine
and confederate with Others to prevent
my person from peac sably entering upon
)r establishing to settlement or residence on
my tract of public land and subject to settle-
nent or entry under the publ laws of the
United States or shall prevent or obstruct
rec passage or transit over or throug the pub.
ic Ian ts; provided this section shall not be
leld to affect the right or title of persons who
lavegone upon, improved or occupied said {
ands under the land laws of the United {
Statps claiming titls thereto In pond faith / {