The Arizona champion., 1890-03-08
Continued from First Page

part Of 1t Tn cultivation, and per
 mitted the balance to remain un-
 enclosed and in no way separated
 from the lands owned by the
 United States. All the neighbors
 who had settled near one of these prairies or on it, and all the people
 who had cattle that they wished to graze upon the public lands permit ted them to run at large over the whole region, fattening upon the public lands of the United States and upon the unenclosed lands of the private individual without let or hindrance. The owner of piece of land, who had built house or enclosed twenty or forty acres of 1t, had the benefit of this universal custom, as well as the party who owned no land. Everybody used the open unenclosed country which produced nutritious grasses as a public common on which their horses, cattle, hogs and sheep could run and graze-
 It has never been understood that in those regions and in this country, in the progress of its set clement, the principle prevailed that a man was bound to keep his cattle confined within his own grounds or else would be llable for their treSpasses upon the unenclos- ed grounds of his neighbors. Such principle was ill-adapted to the nature and condition of the coun- try at that time. Owing to the scarcity of means for enclosing lands, and the great value of the use of the public domain for pas turage, it was never adopted or recognized as the law of the coun- try, except as it might refer to animals known to be dangerous and permitted to go where their dan gerous character might produce evil results. Indeed, it is only within a few years past, as the country has been settled and become highly cultivated, all the land nearly be- ing so used by its owners or by tenants, that the question of com polling the owner of cattle to keep them confined has been the subject of agitation.
 Nearly all the States in early days had what was called the fence law, a law by which a kind of fence sufficient in a general way to pro- tect the cultivated ground from cattle and other domestic animals which were permitted to run at large, was prescribed. The char acter of this fen in most of the statutes was laid down with great particularly, and unless it was in strict conformity to the statute there was no liability on the part of the owner of cattle if they in vaded the enclosure of party and i inflicted injury on him. If the owner of the enclosed ground had i his fence constructed in accordance | with the requirements of the stat | ute, the law presumed then, that an ! animal which invaded this enclo- sure was what was called breachy l animal, was not such animal as should be permitted to go at large, and the owner was liable for the | damages done by. him. Otherwise | the right of the owner of all dom estic animals to permit them to run at large, without responsibility for their getting upon the lands of his neighbor, was conceded.
 The Territory of Utah has now, and has always had, a similar stat ute, section 2234 of the compiled laws of Utah. It is now a matter of occasional legislation in the Sta 6es which have been created out Of this public domain, to permit i cer cain counties, or parts of the State, or the whole of the State, by a vote of the people within Such subdivisions, to determine whether cattle shall longer be per | mitted to run at large and the owners of the soil compelled to re- ly upon their fences for protection, or whether the cattle owner shall keep them confined, and in that menner protect his neighhor with out the necessity on the part of the latter of relying upon. fences which he may make for such protection.
 Whatever policy may be the re- suit of this current agitation can have no effect upon the present case, as the law of Utah and its | customs in this regard remain such as we have described it to be in the general region of the Northwest, and the privileges accorded by the United States for grazing upon her | public lands are subject alone to their control.
 The principles were very clearly enunciated by the Supreme Court of Ohio m 1854 in the case of Kerwhlche CT V. The c. c. & c. Railroad Company, 3 Ohio St. l79. In discussing this question, the court expresses so well the iprinci- pie which we are considering that we venture to make an extensive quotation from the opinion:
 "Admitting the rule of the com