Arizona weekly journal-miner., 1890-03-19


 The prayer of the piaintiiis is fos jud, nont and decree ef the court
 Isi. That sald defendants have not. ns has either ut them. any right of way fo any of hls or their sheep oser said laads . plaintifis UT any part thereof, except owe and along the highways aforesaid; tha they hayo not, or las ssthsf of them. sn, right 10 graxe or pasture any of his . their sheep thereon er on any part thereof 2i, That, pending this action. said de fendants sud each ,5f theu, their aud eaci of their a,fsnts, sersanss and employees, be enioinad from driving any pf hls or fhei sheep upon sny oi said iassds, except oTe and along aaid highways. er pesu,itsins any os them to ga. Rrazo or pasture thers on. and thst apon thc haal ds,cree hprslI said injunction be made perpetual
 Sd For such other Hasd fuS;hsr relic sz may be just and egaitshi,s. together with thesr ooets in this bshslf incurred.
 The sapsesns Conrt of the Territory, n affirming the i1dgsnant oi the soart ~ shs Thisi Judicial DisfTiof, did ntlt eenssfes tho question af tks laisioinsier of aefend- aats. bat rested its judgment nIoa the var, of eqaity in the bilL U might be diibeal, to sustain ball which, like this. united g;ltecn or twenty different de- sendsnfs, to restrain them from con- mitslag trespsss where, ii the parties are guilty or shoaid attemps e Sosamis the f-espsss, they sio t sishoat cenaert of ac tioa, at different simus, in different parts nf large district of country surt as here described. and each m hls ovn way and hy his osn action CT that of hla servants. But Hasvipg this qoessIop. we are Di epiis- ioa that the hiil has 10 equily i'd if.
 The appellants being stock .rsiseFs, ike defendants. whose stesk sre faiseI and fatiened on the nnacenplel publ ( lands oi tha United States mainly, seek by the pur- chase and osnerzbip os parts os these isnds, detsrbed through large body of the public domain, to exclude tie defrEfd- ants from tho asa oi ihis public domain as a grazing ground. while they themselves appropriate all of IL O ihsiF.wn exclusive ase. This they propose to do. not by any ac; of Congress os oi any legislative body whatever. but by means If ihis bill iI chancery, obtaining all injunction sgslnst the defendants. who they aileFe la be the owners Of 3o0,0oo sheep grazing upon these public lands, which shalt exclude de- fendanta from inc use of them, and there. by secure to themselves the exelulse right to pasture their eO, ,o0c head ot cattle upon the same lands
 II we look at the condition of tAeowBer- ship cf these lands. on which the plaintiffs rely for relief, re are ssill moro impressed wiih tho injaaties cf this attempt. \ cal cniAtion of the area fruaa which it is pro posed to exclnds the defendants by this injunction under the allegation that t is forty miles m enc direction snd thifty-six in another. shows that it embraces 1 40 square miles, or 92i ,t0o sc~eS, all of which t is avefred hy the hili, is unencL1sed and Gnoccupled except for grazing purposes. os this g2i 600 acres of land the plaintiff oniy assert title Co $50, 60 acres, that is to say, being the owners of cue thiri of this entire body ol land, which ownership al. tachcs to different sections and qnss ter sect ons scattered through the whole body If it. they proposs by excluding the de- fendants to obtain a monopoly of the whole tract, while two-thirds ,,f il is public land belonging to the United States, in which the right If all parties to use 1t for grszing purposes, if any such right exists, Is equal The eqnity of this proceeding i' something which we are not ab.e h perceive.
 It seems to be fenndsd upon thu prupo. sitioa that while they. as tho owners of the 3l,0, oo0 acres thus scattered through he whole area, are so bs permitted for that reason ,o exerctse tho right If grazing their own cattle upon sl of the land etabssoed within these i.4&0 square miles, the de- fendants cannot be permitted io use even the lands belonging to the anenelosed lands of plaintilfs In other aord', they seek to introduce into the vast regicns of of the public domain which have been open to the use of the herds If stoct-raisers for nearly a century withoat objecti n, the principle of law derived from Eagiand ami applicable to highly cultivated regions of country, that every man must restr,in his stock within his own erounds, and fl he does not so, and they get upon ths unen- closed grounds of hts neighi,ur. 1t Is . tres pass for which their owner IS responsible
 We arc of opinion that shers is an iIsl- piled license, growing out of the custom of nearly hundred ycars, that the public lands If the United States, especially those in which the native grasses are adapted to the growth and ia tening of domestic ani- malls, shsll be free to ths people who seek to use them, where they are left open and unenciosed, and no act oi government for bids this use. For maay years past very large proportion of the beef which has been used by the people of the United States is the cattle ihas raised upon the public lands without charge, without let or hindrance or obstruction The govern ment of the United States m all its branches has knoxa of this use, has never forbidden it, nor taken any steps ta arrest 1t. No doubt 1t may be safely stated thnt this has beea done with the consent of all branches of the government, and, aa we shall attempt to show, with its direct en- couragement-
 The whole system of the coasrel of the public lands ot the United States as it has been conducted by the gov- ernment, under acts of Congress. shows a liberality in regard to their use which has been uniform and remarkable. They have always been open to sale at very sheap prices. Laws have been enacted author izing persons to settle npon them, to euiti- vate them, before they acquire any title to them. While in the inciplencs of the set clement of these lands, by persons enter ing upon them, the permission to do so was a iacit one, the exercise of this per- mission became sc important that Congress, by sy-tem of laws called the pre-emption laws, recognized this right 80 far as to con fer a priority of the right of purchase on the persons who settled upon and custisa- ted any part of this pahhe domain. Dur ine tho time that the settler vas perfecting his title, by making .he Improvements winch that statute required and paying, by instalments or otherwise, the money nsces- sary to purchase it, both he and ali sther persons who desired to do St had full liber ty to grsze their stock upon the grasses of the praities and upon other nutritious s'ib- stances found upon the soil.
 The value of this privilege grew as the population increased, sud it became a GUS tom for persons to make a business or pur. suit of gathering herds of cattle or sheep and raising them and fattening them for market upon these unenciosed lands of the government of the United States Of course the instances became numerous ni which persons purchasing land from the United States put only small part of 1t in cultivation, and permitted tho balance to remain unenclosed and ID no way aep- arased from the lands owned by he United States. All the neighbors who had settled near one of these prairies or on 1t, and all the people who had cattle that they sished to yraze npon the putlic lands permitted Al -. ., ,,,,. A. aYs,. ax.lr fta who'll. reJiors