Arizona weekly journal-miner., 1890-03-19
IMPORTANT DECISION,
Which Affects Large Number
 of Citizens of Arizona

No. I'll. October Term. 1889.
 M. B. Bufora. i. V rA,isr. Charles
 Checker, and George croekeF. Copart. | ners dstag business under tue sirm name
 and style of The Ps,montory Stock ! Ranch Company, ApsliaGiss
 !. Jchn $. Housz, Henry cansnt, and Ed
 ward conant. Partners doing business
 under the 6rm name and myie of Heaiz
 sr Conant, IsAae Hunssko' ct al.
 l Appeal from tho Supreme Court of the Territory of Utah. February 2, is9o Mr. Justice Miller delivered the opinion cf the Court
 This is an appeal from the Supreme Court of the Territory oi Utah
 The bill was originally ilsd hy the sp. pellAn,s in the Third Judicial District
 Court of Utah Territory, m and for Salt Lake County. and in that court demurrer was filed setting forth two. stounds ot ob i joction to the bill; first. that 1t does not | ststs facts sufficient to constitute a eanse oi | sctiou, and, second. that sey,srst causes oi action have been improperly united; ID | this, that sad complaint ssaies a separate cause of acton against each indisidnsi de. \ fendAnt, and nowhere sfatea or attempts to sta,s caass of action sgainsI all of the de. | feudanez This demurrer aas sustained, and 6 decrre rendered dism.ssing the bill !, a. the eosl oi plaintiffs, and on appeal to | the Supreme Court of the Territory that 1 decree wss affirmed.
 | The case Ia here on an appeal from that I judgment. The eompisinanis were NJ. E. !! baiera. J. W. Taylor, Charles Crccker and 1 George Crocker, caparsners under the firm name and style of tke Promcntory Stock ! Ranch Company. The defendants wers John $ Houtx and Henry and Edward | Coaant, the Box Elder Stock and Msrc4n- \ tie Company, corporation, aud twenty | individuals whose nsmes sre given ia tho bln.
 ] The plaintiffs allegs that they are ihe l owners of certain sections and parss of sec. tions of isad in the Territory of Utah. 1 which they describe specifically by the nua- bers and style oi their Csner,sssonai sub | divisions, very much oi which IS derived from the Central Pacific ksiirad Company
 to which they were granted by the Con I vrcss cf the United Statos. These lands | were ate sections If odd numbers sc- i coriing to the Congressional grant 10 the \ rairusd company and with tho other tracts mentioned ,n the plaintiffs blll they are f said .o amount e. over 3a0, ,c0< acres, and ' extend over an area of forty nises in | sorthoriy and utberly direction, by about thirty-six m.les m an easserly and wester iy direction. '" i The allegation IS, that these lands are very valuable for pasturage ana the grazing | of atock, and are of little ar no value Tor 1 any othoy purpose, and were held by p'sia- | tiss, and arc nos held by them, for that purpose solely. That owing tel their char \ scter. the scarcity of water, and the arsiity | of the climate where these lauds are sittl- | assd, they can never be sublacted "a any | beneficial use other than tho gra \ xing of stock That plaintiffs own and are | posseAsed of large numbers of horned cat ! tie, to wit. 2o,0Co head. of the value of ! Sioo. .0oo, and are engaged in the solc basi- ness of stock raising. That for long tune | they have had and now have Ai said cattle | running and grazing upoa tfless lands ' That al the even numbered sections sn I each and snd all the townships aud fraction tional townships above mentioned belong to and are part of the public domain of the United States That the defendants have not, nor has either of them. any right, title, interest, or possession oF right of possession of or to any ol the lands embraced in any of the townships or fractional townships above mentioned, nor have they ever had any such right, title, interssl UT possession That none of the iands included within said sownships og fractional to~nships are fenced or enclosed, except small portion owned by plaintiffs, which they have here. tosore enclosed sith fences for ,sse as cor rsls, within which to gather from time to f time their cattle in order to brand the young thereof. They aiiege thsi; for vari ous reasons they cannot fence arld enclose 1 their lands without enclosing large portions ! of the lands of the United States, and with out rendering large and valuable portions \ of their own of no value. by reason of the | shutting off and preventing their own cattle | from obtaining necessary water. That the | defendants, Houtz snd Conant, ION and | for loug time past, have owne,i a large | number, to wlt: I5, eco head of sheep. and !! each of the other defendants to this action | is nos and for a long time past hss been I the owner of large flock or herd oi sheep | The smallest number owned by any one 1 party exceeds, ss plaintiff believes, i've | thousand, and the aggregate namber cs sheep 80 held exceeds two hundred thou ssnd | |, is then alleged that the official survey | af the United States has been extended over all land within the townships aud frac- sional townships mentioned m the ball, and l that there are seven well-known and well defined travelled highways over these lands, ! four of which rnn in 6 ncrtheriy and south erthly direction, and three in an eastcrly | and westerly direction, entirely across the ! lands embraced in said townships snd frac- \ tional townships, along which the sheep of ! the defendants may b. driven without in- ! jury ta plaintiffs land, notwithstanding ! which each of said defendants claims and | asserts that hs has the lawful right and is entitled to drive all sheep owned by him | over and scro.s any of sand lands owned hy | thsse plaintiffs, and to pasture and grAze | his sheep thereon whenever and wherever \ he may desire so to do. That all of ssid defendants respectively rely upon and set up a common, though not joint, pretend | eG right to drive. grace and pasture hss sheep thereon, and each of said defendants b ,ses his prctended right to drive. graze ! and pasture his sheep apon the lands ot the plaintiff upon precisely the saine tate 1 of facts ss that relied upon by eact' of the 1 other desendsnts. That is U say, each og ! said defendants claims that all sle even numbered sections in each of said town I ships aud fractional townships being nnoc- | cupied pubic domain Of the United States, | he hss an implied license from the govern n,ent of ths United States to drive, grsze and pasture hts sheep thereon, and that he cannot do this without having tben run, grace and pasture apon the lands of the plaintiffs ss aforesaid; and that during the 1 year paat each of said defendants did re-
 psatsdiy drive large bands and herds of
 sheep over. upon and across the lands of these plaintiffs. and graze aud pasture the same thereon, to the great injury and damage of said plaintiffs, and that they
 and osca of them threaten to continue to
 do this and will do 1t unless restrained by
 order of the court.
 Itis then alleged that the sheep. Ia
 grazing upon the lands, do 1t q pernane mt
 injury, and drive away the cattle from
 such lands, whereby. if the defendants are
 permitted to drive and pasture their sheep
 on the lands of the plaintiffs, those lands
 | will be greatly damaged. and. for long
 period of ,irss in the future, rendered
 sslneless for the purpose of grazing and
 pasturiDg their cattle. They then siicge