, 1906-12-12
WHAT'S AN ILLEGAL FENCE?

hiA ~ Aht hldhttl VI III ing hltbal
fences from the public domain the
query is frequently made, What is an
Illegal fence?" Some ranchmen main
tain that If a man builds n fence entire
ly upon his W land he Is within the
law and II be compelled to remove
the same. although he may have thou
sands of acres of public land within the
enclosure. This contention is not in
accord with the statute nor the decis-
ion of the courts.
The first section of the act of con
gress Of February 20, 1885, entitled.
AN act TO prevent unlawful occupancy
of the public lands" reads as follows:
THAT all enclosures of any public
lands in any state or territory of the
United States, heretofore or to be
hereafter made, erected or constructed
by any person, party, association or
corporation, TO any of which land in
cluded within the enclosure the person,
party, association or corporation max
ing or controlling the enclosure had
nc claim or color of title made or &C.
quired in good faith, or an asserted
right thereto by or under claim, made
in good faith with n view to entry there
Of at the proper land office under the
general laws Of the United States at
the time II such enclosure was or
shall be made, are hereby declared to
be unlawful, and the maintenance, cree.
ton, construction or control of any
such enclosure is hereby forbidden and
prohibited; and the assertion of a right
to the exclusive use and occupancy oil
any part of the public lands of the
United States in any state or any of
the territories of the United States,
without claim, color of title or assert.
ed right, as above specified as to en-.
closure, is likewise declared unlawful
and hereby prohibited"
In passing upon a case brought un
der this section of the revised statutes
the supreme court Of the United States
held (Camfeld ct al. VS.. United States,
May "a, 1897 that the grant by the
government of every alternate section
Of land in a township to a railroad com.
pany to aid in the construction OF Its
road doe not carry with 1t the right
to a purchaser of such land to enclose
the intermediate sections, which re
main the property of the United States
This case was brought in Colorado, the
land being within the grant to the
Union Pacific Railroad company and
is therefore applicable to people liv.
ing within the railroad limits of that
road in the state of Wyoming. The de,
PENDANTS in the case had enclosed ap
proximately 10000 acres of the public
domain. Their fence was constructed
entirely upon their own land. They
had built 1t on the odd numbered sec
tons entirely around the township b,
jumping from one side of the township
line to the other at each section cor
ner. not placing any of the fence upor
government land.
The opinion of the court was by Jus.
tice Brown. In speaking of the powers
OF the government in its control of pub.
lie lands he our says: 1T may deal
with such lands precisely as a private
individual may deal with his farming
property. 1t may sell or withhold them
from sale. 1t may grant them in aid
of railways or other public enterprises.
1t may open them to homestead or pre-.
emption settlement, but 1t would be
recreant to its duties as trustee for
the people of the United States to per.
NIT any individual or private corpora
ton to m~onopolize them for private
gain n thereby practically drive in.
tending settlers from the market"
Again, the court says: so far as
the fences were erected neal the out.
side line of the odd-numbered sections,
there can be no objection to them;
but, so far as they were erected i'm.
mediately outside the even-numbered
sections, they are manifestly intended
to inclose the governments lands.
though in fact erected a few inches in
side the defendants line"
1t has been contended by some that
the decisions of the courts, the rules
OF the department and the instructions
to special agents absolutely prohibit
a man from fencing his own land.
This is not the case. In the same de-
cision from which We have quoted the
court says: ut is no answer to say
that, If such odd-numberer sections
We're separately fenced in, which the
owner would doubtless have the right
to do, the result would be the same
as in this case-to practically exclude
the government from the even-num-
bered sections-since this was a con.
tingency which the government was
bound to contemplate in granting
away the odd-numbered sections
So long as the individual propri-
etor confines his Enclosure to his own
land, the government has no right to
complain, since he is entitled to the
complete and exclusive enjoyment of
1t, regardless of any detriment to his
neighbor; but, when under the guise
of inclosing his own land, he builds a |
fence which is useless for that purpose
Inc can only have been intended to in
close h lands of the government, he
is plainly within the statute and is
guilty of a. unwarrantable a~ppropria-
ton of that which belongs to the pub.
lie at large"
1t will be seen that the court has
PASSED upon all phases of the case. A
man may inclose his own land il on
ly his own land is inside his inclos-
ure, but if he takes in government
land his Enclosure becomes illegal even J
II his fence is entirely Upon his W