The state herald., 1897-05-28
THE FENCES MUST GO.
A SUPREME COURT DECISION.
Cnmfieli and DIury Violated the Law by
Running u Fence Around Government
Land-lt Scared settlers Away.


Denver, May 25.--The following spe-
cial from Washington TO the Republi-
can gives a synopsis of an important de-
cision by the Supreme Court:
The United States Supreme Court has
decided the case Of Daniel A. Camiield
and William Drury. appellants, against
the United States, in favor of the gov
ernmcnt The ease came TO the SUI
preme Court on appeal from the United
States Circuit Court of Appeals of the
Eighth circuit, from decree of the De
ccmbcr term, 1891, affirming the decree
of the Circuit Court of the United
States for the district of Colorado. and
from further decree of March Is,
on the case.
The controversy was over the fcnc-
ing of land in Colorado. 1t appears
that the defendants had acquired cer-
tain tracts of land lying within the lin
its of the grant made 10 the Union Pa
citic Railway Company by the act of
July /, 1862, built their fence on such
numbered sections, and then, having
acquired from the owner or owners
permission to do so, built a 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 10 the even sections,
formed practically, although not ac-
tually, 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.
The land around which the fences
were made embraced townships and
s north. range GI west of the sixtieth
principal meridian. II appears that the
defendants. Camiield and Drury, in
fencing the land. had built gates at the
corners, 50 that at each section line
there were entrances, hut this did not
prevent from in a manner occupying
the land. The fence was built so as 10
surround the townships, not enclosing
each section.
In defense a number of propositions
were set up, among them being the as
scrtion that they wanted to construct n
large irrigation system.
The opinion of the court was rem
dered by Justice Brown. lie cited the
law of 1855. which prohibits the unlaw-
full enclosure of public land. He SAYS
that the defendants present nothing to
show that they had the right To en-
close the lands. While the lands are in
Colorado the United States government
has the right TO deal with them and
protect them as a 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
b. a trespass, More than this. there is
an evil In permitting persons TO build
an enclosure Tightening away intend
ing settlers with the idea that the lands
enclosed belonged To persons who had
acquired prior rights. There was no
objection tn building fence or wall
outside of the government lands, cx-
ccpt where II was clearly the intention
To enclose the public lands.
The court says that the fence is clear
ly n nuisance. While Congress has not
the unlimited right TO lcgisla,c against
nulsanccs In the states, ID has the
power 10 protect the public lands.
In regard 10 the brief OF the railway
fhHll'ili, winch illtu u htltl III SUP
port OF the defendants contention. the
court says that Congress did not grant
the whole Of the townships 10 the road,
hut only the odd.numbercd sections.
the balance being for the 9 neral pub.
lie. The government has the right over
the Odd-numbcred sections. 1t Is no
answer TO say that the fence was not
on the land Of the government. but on
separate tracts when the fence opcrat.
ed 10 cNcl.de settlers. An Individual
has the right To fcnc" his own land,
hut when under the gulse Of fencing
his own land he builds fence for the
express purpose and which can only
have been Intended 10 enclose govern.
mcnt land, he Is guilty Of unwarranta.
blc appropriation. II Is lmmaierial
that they wanted to build reserves for
Irrigation purposes. Congress reserved
the constitutional right Of protecting
the public lands from nulsances erected
upon adjoining property.
The Judgment Of the court II that the
act protecting the public from nu.
sances erected upon adjoining property
Is valid aud the decision Of the Court
nf Appeals Is affirmed. The contention
that the fence WAS moi located upon
any portion Of the government land is
not well taken; the fact that II sur.
rounded government land Is sufficient
for declaring II "A Nuisance