Omaha daily bee., 1902-11-24
REPORTS ON FENCES
Colonel MOlby Deals at Length with the
Troublesome Question.
CITES THE LAW IN REGARD TO THE SAME
Has No Discretion Except to Compel Cattle
men to Remove Them.
TAKES UP ALLEGED FRAUDULENT ENTRIES
Men Holding Under Them Not Protected by
Color of Title.
MANY THOUSAND ACRES ARE INVOLVED
Parties who Erect Fences Pay No
Attention TO Notices to Pull Them
Down Unless Hacked Up
by SUIT.
Has No Discretion Except to Compel Cattle
men to Remove Them.
TAKES UP ALLEGED FRAUDULENT ENTRIES
Men Holding Under Them Not Protected by
Color of Title.
MANY THOUSAND ACRES ARE INVOLVED
From a STAFF Correspondent

WASHINGTON, Nov. 2.-(Special. 1.-The
question of fences the public domain
erected by cattlemen and the widows en-
tries Of land alleged to be for their benefit
ls just now attracting much attention in
Washington as we'll as in Nebraska. Colo
mel John s. Mosby, special agent of the
Interior department, has been in charge Of
the investigation and was called to Wash
ington to make his report and confer with
the secretary. Following is his report and
the correspondence regarding the same:
WASHINGTON, D. c.. Oct. 23, 1907
The Honorable the Secretary Of the In
terror: Sir-I have the honor to report
that was appointed special agent of the
general land office in July, 1901, and was
assigned to duty in the 'McCook district,
Nebraska, and the Sterling and Akron dis
tricts, Colorado. l arrived at Akron, my
headquarters, on August s. 1901 l found
on examination that large portion Of the
public lands in Colorado were covered by
abandoned and expired entries, were in
closed by fences that excluded the lands
from settlement and appropriated them as
private property of associations of stock
men. A great many such entries were re-
ported for cancellation, and the way was
thus cleared for settlers Ranchers who
Lad no fences and desired a free range for
heir cattle made complaint Of the griev-
tnce Of fences that excluded them from the
use OF the public lands for pasture, and
aggregated them as the personal property
Of individuals, while many gave informa-
tion, conhdentialiy, who were not willing
10 incur the hostility Of the powerful cattle
barons. AS such Enclosures deprived citi-
gems Of their right of pasture on the public
domain. and were an obstruction to its set
tlement, considered 1t as much my official
duty to Investigate and report every case
of unlawful fencing as II 1t had been a
fraud on the revenue, and had been an
agent of the treasury.
Quotes His Instructions.
"The instructions of February 6, 1902,
ray;
You WIN, therefore, give notice verbally
closures or drift fences on public lands
without color of title, calling attention to
1eir violation Of the law and advising them
,nat in the event of their failure to remove
TIM fences within sixty days Institution of
uit will be recommended.
You directed to use utmost vigilance
ard activity in examining and reporting
upon unlawful Enclosures or drift fences
IN your districts.
THE instructions of October 8, 1902, say:
While judging from the numerous COM
plants received at this office, unlawful
gencing of public land by stockmen is still
carried on TO great extent in the western
section of the country, comparatively few
cases are reported by special agents, not
Yithstanding existing instructions issued by
he land department with the aim of break
ING up the practice Of controlling public
%nds by tsncing 1s Ia ~ yiola9n OF the act OF
You will push the fencing matter vigor-
cusly hereafter in order that all the public
land unlawtully occupied may be opened
icing Strictly governed by the circular
order Of February g. 1902, and so much
iached to blank form (4-495), etc.
II have endeavored to execute the law
and to conform to the instructions of the
general land office.
Law a Dead Letter.
''I discovered that while the act OF Feb
ruary 25, 1885, forbidding the fencing OF
public lands. had been vigorously enforced
during Mr.. Cleveland's first administration,
Il had been a dead letter for many years.
As some evidence that the statute had fallen
into "innocuous desuetude," l will state
that among the papers turned over TO me
by the special agent who for many years had
been on duty In the Sterling district was
a complaint which had never been acted
upon, against the Pawnee Cattle company
for unlawful fencing in Morgan county. Col
orado. This company is wealthy corpora
tion, with headquarters at Denver l i'm
mediately examined the fence and found
II
p. & NJ and the Union Pacific roads and
thus forming perfect Enclosure, the Paw
nee Cattle company had been for long
time enjoying the exclusive use OF about
$4,000 acres of public land ] gave notice
to the president OF the company to remove
his fence, and sent the afidavit OF a citizen
as TO the character OF the fenFe TO the dis
trict attorney at Denver and asked him to
begin a judicial proceeding TO compel its
removal The district attorney raised many
frivolous objections to the sufhciency Of
the affidavit. a copy OF which had sent to
the general land ofiice, and the special
agent volunteered TO write me a letter OF
advice. to which ! paid no attention except
TO tell him that he did not seem to under
stand the law. l forwarded my correspond
ence with the district attorney and the
special agent TO the general land ONCE and
suggested that the Department OF Justice
be requested to instruct the district attor-
ney to his duty l suppose instructions
were given, as the district attorney soon
afterward discovered that the afhdavit was
sufficient, and began proceedings that re-
suited In the removal OF the fence. The
Pawnee Cattle company also had another
Enclosure in Logan county, Colorado, which
was removed IN the same way.
"In Phillips county, Colorado, the Wither-
bee brothers had fence sixty miles long
that formed a complete inclosure. There
were a few homestead entries included in
It. but those were we'll known TO be under
the control Of the Witherbees. The fence
had stood ten years, and the special agent
had several times been in the neighbor-
hood examining abandoned entries. The
WitheTbees were notorious whitecappers
and terror in the community. l gave them
notice to remove their fence In sixty days.
They pulled IL down without a murmur. My
correspondence with them is on hle in the
general land Office ! cite these cases as
examples OF the way the Law has been en-
forced by my predecessors and myself.
While on duty in Colorado a great many
complaints OF unlawful fencing came 10 me
from outside the territory where l was as