, 1888-05-24
THE FENCES TO REMAIN
A Knotty Legal Question Tackled
by Judge Saufly.
Railway Land Owners May Enclose
Their Land,
Even When by So Doing They En-
close Government Land.

At Laramie yesterday Judge Saufy
rendered a decision in the famous fence
case of the United States VS.. the Douglas
william Sartoris company.
The defendants own railroad land within
the twenty mile limit and in enclosing it
also necessarily fenced government land.
Last fall they were enioined from pro-
ceeding with the work and the case was
only settled yesterday. United States
Attorney Campbell and Judge Peck rep
resented the government. and Corlett,
Lacey & Riner and Brown. Blake &
Arnold appeared for the defendants.
According to Judge Saufy's interpreta,
ton of the law the stock men who have
been compelled to remove fences from the
public domain within the railway limit
may again erect them.
The case will be carried to the higher
courts at once. The decision is the most
important land ruling made for years.
Following are excerpts from Judge
Saufy's lengthy opinion:
The questions involved in this litigation
are of universal interest to the government
of the United States, and, presumably, of
like interest to the defendant corporation.
Substantially, the complaint by the
government is, that the defendant, with
the sole and unlawful design of enclosing
the lands of the plaintiff, has planned,
already built, and proposes to build a con-
tinuous line of barbed wire fence, which,
when completed. will have the effect to
sever from the public domain a great num-
Der of even numbered sections of land in
twelve townships.
To maintain its side of the issue the
government alleges that the title to all the
odd numbered sections which were grant
ed to the Union Pacific road still remains
in the government, and will SO remain
until patents are regularly issued from
the department of the interior; and that,
as a sequence, the enclosure of the odd
sections, though the even sections may
not thereby be affected, is obnoxious to
the statute.
But this position of the government
cannot be maintained, as 1 think, either
in principle or by authority. The %enclos-
ures forbidden are those of public lands.
These words have a well settled legal
meaning. They are intended to designate
such lands as are subject to sale or dis
posal under general laws, This court
judicially knows that these odd sections
are not held for sale by the government
nor are they open to settlement by home
stead, presumption or other entries.
1t is difficult to perceive on what prin-
ciple it is claimed that the legal title is
still in the government. 1t is true that a
patent is the usual means of grant or con
veyance, but why2 Manifestly and only
because the supreme law making power
has so enacted.
The act of July, 1862, already quoted,
grants to the Union Pacific road these odd
sections of the public domain upon GER
tain conditions, and it is admitted that
these conditions were performed in the
year 1870.
Other questions besides these were pre-
sented in argument, but of them all the
only one | care to notice is that which
challenges the constitutionality of the
statute. By this proceeding a Judgment
is sought which, if decreed, will obviously
and seriously affect the defendants
property. The government unques-
tionably granted to defendants re-
mote vendor the title to the
land On which the enclosure complained
of is erected. 1t granted it, too, in this
fashion. 1t established the rectangular
system of surveying. 1t so separated the
odd from the even numbered sections as
to leave between them only imaginary
lines. 1t thus made the possibility of a
clash, of whatever conflicting interests
might ensue, between it and its grantees.
That conflict has arrived, and the plant
IF relies on its sovereignty.
Has the government the right in the ex-
ercise of its public powers to force the de-
struction of the defendants property that
the public may have access to the public
property? l think not.
Suppose these odd sections, instead of
being owned by the defendant corporation,
were owned by as many different persons,
and each person should enclose, as he
might certainly lawfully do, his own Sec
toni Could the government arbitrarily
demand of them to destroy their fences2
Could the government under its police
powers require them to pull down their