, 1889-06-08
THE ENC
Extensive Extracts from the Opinions
of the Supreme Court Judges.

supeme court coun~tenancing the incidental
enclosure of government land by the
fences Of owners of adjoining or alternate
sections, quotes the law of 1885 and
makes a statement Of the agreed facts.
Then he says:
TT is no longer a question open TO dis
pute that when the government becomes
a party to a contract between itself or its
citizens it divests itself of its sovereignty
in respect to the terms and conditions OF
the contract, its construction and inter
probation and stands in the same position
with reference to the contract as a private
individual. As said by the supreme court
of Massachusetts, if it were otherwise the
rights Of parties contracting with the gov
ernment would be held at the caprice of
the sovereign and exposed to all the rights
of misguided power. When a govern
ment enters into a contract with an indi-
vidual it deposes as to the matter
Of contract its constitutional author
ity and exchanges the character
Of legislator for that of the moral agent
Wtbh ~ hhLuC iikhLo huu ODnRdllOIS as
an individual 1t is Tin theory impossi-
BILE to reconcile the two ideas of a promise
which obligates with the power to make q
law which can vary the effect of it But
recurring to the question of damages as
appears both in pleading and argument
that arises out of the need of the gov
eminent to have free access to its own
property for all the uses TO which the do
main may lawfully be applied. Why
should not the government in the Lam
guage of its counsel depend for its own
use upon first agreement, judicial adiudi-
cation or appropriation Of private prop
erty under the constitution 2 The indivi-
dual similarly situated would have to de-
fend on these agencies and there can sure
" be mysterious contention hat the gov
eminent in dealing with rights not its
own. occupying a point OF advantage dis
tinct from or superior to that OF
any of its citizens. If A, owning a tract
Of 100 acres, should sell to b the entire
area except ten acres reserved in the cen
ter, the fencing by B either of his exterior
or interior lines could not, Upon any prin-
ciple or authority, be called a public or
private nuisance, to be abated by the
power Of the law. A would be deemed to
have a way OF necessity to and from his
reserved acreage, the designation of which
primarily would lie with the owner of the
servient estate. But surely A could not
DO heard in a court OF Justice to demand
that b should DESTROY his entire fencing to
afford to him the privilege of unlimited
ingress and egress, wheresoever he listed.
Then there is the damage to the govern
ment, that its freedom of access to its oun
land is obstructed by the fence which the
defendant has erected on its oton land.
There is no other complaint in this action.
There can be no other complaint. There
is no other damage cognizable under
the procedure adopted; there can be no
other damage. And on this the govern
msnt most singularly, according to my
comprehension, contends that the defend
ant maintains a nuisance because it should
so use its w property as not to damage
another. 1t is true the defendant may
use the land of the plaintiff or it may be
the fence obtain the benefit of that use to
the exclusion oil all other citizens for
whom the government holds the public
land in trust. But it is the actual use
and not the fence which works the evil.
That actual use would only render the de-
PENDANT liable, if for anything, to the com
mon law action of ..trespassers and not to
an equitable proceeding by which its prop
erty is to be destroyed or use and occu-
pancy forbidden. 1t Eshould therefore
be continually kept in mind that in the
action as brought and presented it is not
pretended that the damage results from
defendants actual and exclusive use Of
the public land, no matter how unlaw-
full in fact that use may be,
but from the erection of a fence on its
own land which interiercs with the agent
and beneficiaries of the government that
the use of another's property without his
consent is improper; that the law making
power, may impose penalties for such use
is not controverted, but that is not the
question which arises in this case. The
act under which this suit is presented Tor
bidding two things, ~ the enclosure
referred to, and (2) the assertion of a right
to the exclusive use of public land without
right or color of right. The actual use as
distinguished by the assertion of the right
to use Is not forbidden. In a civil pro-
ceeding for the violation of this act, there
is no penalty prescribed, either for the use
or for the assertion of the right to the
uca
II am therefore OF the opinion that the
act OF February, 1885, is so far Us
it authorizes the destruction of
the defendants fence, located as
it is. is unconstitutional and void,
wherefore, the chief Justice dissenting and
Justice Corn concurring, for reasons other
than those appearing in this separate
opinion, the Judgment of the district
court is affirmed"
In his dissenting opinion Chief Justice
Maginnis r%ecites the things forbidden by
the statute and makes a statement of the
position of defendant in the premises.
He says: II take it that the unauthor-
lied use of public property is per Sc I'M
lawful. Such use, at the common law, as
would amount to trespass between indi-
vlduals, when public realty is seized, be-
comes the subject of an information for
intrusion. 1t has been the policy of the
United States Government IN copeapt IN