El Nuevo mexicano., 1917-02-01

otdtCo oClAut0 dt tuc tfhto thoS eno Ss
was pending before that body, Where
In It was stated:
"The necessity of additional legis
lotion to protect the public domain
because of illegal fencing Is becom
ing every day more apparent. With
out the least authority and in oper
and bold defiance Of the rights OF the
government, large, and oftentimes
foreign corporations deliberately in
close by fences Q of hundreds Of
thousands Of acres, closing the ave
Eues of travel and preventing the oc'
cupancy by those seeking homes
While those fencing allege the lands
within such enclosures are open to
settlement, yet no settler with scarce
the means for the n~ecessaries Of life
would presume to enter any such in
closure to seek a home"
Spirit Of the Law
It was evidently the spirit and in
tent of the act Of 1855 that access to
the public domain by those who de-
sire to ~peaceably enter or establish a
| residence or settlement thereupon,
shall not be obstructed by parties
that have no claim or color Of title
to the lands. That access may be i'm
peded in various ways. 1t does not
necessarily follow that the lands
must be completely surrounded by
fences constructed wholly upon pub
lie lands. The obstruction may be
effected by the construction of fences
which tie to natural barriers, such
as mountains and rivers; by the con
struction by different parties OF
fences which Join and for mar unlaw-
full inclosure; by the construction OF
so-called drift fences extending for
miles in length, which to all intent
and purposes, make the public lands
adjacent thereto practically worth
less for settlement; or ever by the
construction of fences without gates,
or with gates which the public are not
permitted to use, wholly upon private
" owned lands so as to incidentally
inclose public lands. For an illus
tratiop Of a case such as the last
mentioned. see Camfield VS.. United
States (167 U, S., 5tS), which is the
leading case upon the subject.
The policy Of the government with
reference to its unappropriated pub
lie lands has been uniform and we'll
understood since the establishment Of
the republic. That policy has been
Clearly stated by the United States
supreme court in the ease of Buford
VS.. Houtz (133 U. S., 320), in which 1t
was stated:
We are OF the opinion that there is
an implied license, growing out OF
the custom of nearly n hundred
years, that the public lands of the
United States. especially those IN
which the native grasses are adapted
TO the growth and fattening of domes-
tic animals. shall be free to the people
who seek to use them where they are
left open and u~ninclosed, and no act
of government forbids this use"
Congress evidently did not intend
by the passage Of the unlawful in
closure act to prohibit altogether the
pasturage OF public lands, or to re-
verse the former practice Of the gov
eminent in that particular. Garfield
United tCates, supra, page 527.
In view of the fact that sufficient
evidence has been procured to estab-
fish a prlma facie showing that access
by prospective settlers to large areas
of public lands In the state Of New
has been impeded by fences
which are still being maintained IN
violation of the act Of February 25,
1885, supra, you are hereby directed
10 notify all persons reported to be
maintaining fences upon public lands
in that state, that all unlawful fences
and Enclosures must be abated and
removed on or before April 49,, 1917,
and that II the law in that respect 10
violated after that date, steps will Inn
Haediately be taken to effect summary
removal of the Illegal fences by JUDI
ciaI process. You may give copies OF
this letter to the press of the state as
matter of news, In the event that
the above order shall not be complied
with on or before the above mention
ed date, you will present the facts In
yolving cases of alleged maintenance
Of illegal fences coming to your at
to the United States attorney
for such action rs he may deem nee
essary under this act. #. In the mean
time, you shall be consulted by those
or maintaining fences on the
domain as to such fences ana
Enclosures as are violative OF the pur-
pose and spirit o. the law, you VIII
lay the facts Of such cases before the
States attorney, and advise
parties in accordance with his
Instructions. You will also confer