Rocky Ford enterprise., 1897-05-27
THE FENCES MUST GO.
A SUPREME COURT DECISION.
Camaeld and Drury Violated the Law by
Running a Fence Around Government
Lnud-lt Scared settlers Away.


Denver, May 25.-The following spe-
cial from Washington to the Republi-
can gives Il synopsis of an important de-
cislon by the Supreme Court:
The United States Supreme Court has
decided the case Of Daniel A. Camfield
and William Drury. appellants, against
the United States, in favor of the gov
ernment. The case came to the Su-
preme Court on appeal from the United
States Circuit Court of Appeals of the
Eighth circuit, from IL decree of the De-
ceinber term, 1894, affirming the decree
of the Circuit Court of the United
States for the district of Colorado. and
from further decree of March 1S.
1895, denying n petition for II rehearing
on the case.
The controversy was over the fenc-
ing of land In Colorado. 1t appears
that the defendants had acquired GER
tain tracts of land lying within the lin
Its of the grant made to the Union Pa
cific Rally ay Company by the act of
July I, 1862. built their fence on such
numbered sections, and then, having
acquired from the owner or owners
permission to do so, built fence on the
adjoining tracts of land opposite to the
even numbered sections lying between
their odd sections. in such II manner
that the section of fence so construct
ed on their odd sections and on the
land opposite to the even sections.
formed practically. although not ac-
tually, Il continuous line of fence,
which. being extended around the en-
tire body of land within which their
odd sections lay, embraced. necessarily,
the even numbered sections, which are
the property Of the United States.
n Vn-ht IN
We're made embraced townships Z and
s north. range G3 west of the siXtieth
principal meridian. 1t appears that the
defendants. Camfeld and Drury, In
fencing the land. had built gates at the
corners, so that at each section line
there We're entrances. but this did not
prevent from In a manner occupying
the land. The fence was built SO as to
surround the townships. not enclosing
each section.
In defense u number of propositions
Were set up. among them being the as
sertion that they wanted to construct a
large irrigation system.
The opinion of the court was rem
dered by Justice Brown. He cited the
law of 1885. which prohibits the unlaw-
full enclosure Of public land. He says
that the defendants present nothing to
show that they had the right TO ell
close the lands. While the lands are in
Colorado the United States government
has the right to deal with them and
protect them as n part of It's property
as long as they are a part OF the public
domain. 1t needed no argument. says
the court. to show that the building OF
fence and the enclosing of lands would
be trespass. More than this, there Is
an evil In permitting persons to build
an enclosure, frightening away intend
ing settlers with the Idea that the lands
enclosed belonged to persons who had
acquired prior rights. There was no
objection to building a fence or Il wall
outside of the government lands. cX-
cept where It wus clearly the Intention
to enclose the public lands.
The court says that the fence is clear
1y Il nuisance. While Congress has not
the unlimited right TO legislate against
nuisances in the states. II has the
power to protect the public lands.
In regard to the brief of the railway
company. which filed brief In sup
port of the defendants contention. the
court says that Congress did not grant
the whole of the townships to the road.
but only the odd-numbered sections,
the balance being for the general pub
lie. The government has the right over
the. odil-numbered sections. 1t Is no
answer to say that the fence was not
on the land of the government. hut on
separate tracts when the fence operat-
ed to exclude settlers. An individual
has the right TO fence his own land.
but when under the gu!sc Of fencing
his own land he builds II fence for the
express purpose and which can only
have been intended to enclose govern
ment land. he is guilty of nwnrranta-
ble appropriation. II is immnterial
that they wanted to build reserves for
irrigation purposes. Congress reserved
the constitutional right of protecting
the public lands from nuisances erected
upon adjoining property.
The Judgment of the court Is that the
act protecting the public from nui-
sanccs erected upon adjoining property
is valid and the decision OF the Court
of Appeals is affirmed. The contention
that the fence was not located upon
any portion of the government land Is
not well taken: the fact that 1t sur
rounded government land is sufficient
for declaring II a nuisance.