The Arizona champion., 1890-03-08

!, quarter-sect1on scattered through the ) whole body of it, they propose by excluding the defendants to obtain a monopoly of the whole tract, while two-thirds of it is public land be-
 longing to the United States, in
 which the right of all parties to use
 It tor grazing purposes, if any such
 right exists, is equal. The equity ot this proceeding is something
 which we are not able to preceive.
 It seems to be founded upon the proposition that while they, as the owners of the 350,O00 acres thus scattered through the whole area, are to be permitted for that reason to exercise the right of grazing their own cattle upon all of the land en- Graeed within these LAO square miles, the defendants cannot be per mitted to use even the lands belong ing to the United States, because in doing this their cattle will trespass upon the unenclosed lands of plaint- ltfs. In other words, they seek to introduce into the vast regions of the public domain which have been open to the use of the herds of stook-raisers for nearly century without objection, the principle of law derived from England and ap- plicable to highly cultivated regions of country, that every man must restrain his stock within his own grounds, and if he does not do so, and they get unon the unenclosed grounds of his neighbor, it is tres pass for which their owner is re- sponsible.
 We are of opinion that there is an implied license, growing out of the custom of nearly a hundred years, that the public lands of the United States, especially those in which the native grasses are adapt ed to the growth and fattening of domestic animals, shall be free to the people who seek to use them, where they are left open and unen- closed, and no act of government forbids this use. For many years past very large proportion of the beef which has been used by the people of the United States is the meat of cattle thus raised upon the public lands without charge, with out let or hindrance or obstruction. The government of the United States ill all its branches has known of this use, has never forbidden it. nor taken any steps to arrest 1t No doubt it may be safely stated that this has been done with the consent of all branches of the gov ernment, and, as we shall attempt to show, with its direct encourage ment.
 The whole system of the control of the public lands of the United States as 1t has been conducted by the government, under acts of Con- gress, shows a liberality in regard to their use which has been uniform and remarkable. They have al- ways been open to sale at very cheap prices. Laws have been en- acted authorizing persons to settle upon them, and to cultivate them, before they acquire any title to them. While in the incipiency of the settlement of these lands; by persons entering upon them, the permission to do so was tacit one, the exercise of this permission be- came so important that Congress, by a system of laws called the pre- emp.ion laws, recognized this right so far as to confer priority of the right of purchase on the persons who settled upon and cultivated any part of this public domain. During the time that the settlers was perfecting his title, by making the Improvements which that stat ute required and paying, by install ments or otherwise, the money nec- ssa y to purchase it, both he and ali other persons who desired to do so had full liberty to graze their stock upon the grasses of the prai- ries and upon other nutritious sub stances found upon the soil.
 The value of this privilege grew as the population increase1, and 1t became a custom for persons to ,,,nlrn n h,,rinn,s nr. 1nnrs11it nf oa th