Henry Billings Brown

“ If it be found to be necessary, for the protection of the public or of intending settlers, to forbid all inclosures of public lands, the government may do so, though the alternate sections of private lands are thereby rendered less available for pasturage. The inconvenience, or even damage, to the individual proprietor does not authorize an act which is in its nature a purpresture of government lands. ”

“ Considering the obvious purposes of this structure, and the necessities of preventing the inclosure of public lands, we think the fence is clearly a nuisance, and that it is within the constitutional power of congress to order its abatement, notwithstanding such action may involve an entry upon the lands of a private individual. The general government doubtless has a power over its own property analogous to the police power of the several states, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case. ”

“ It may open them to pre-emption or homestead settlement, but it would be recreant to its duties as trustee for the people of the United States to permit any individual or private corporation to monopolize them for private gain, and thereby practically drive intending settlers from the market. It needs no argument to show that the building of fences upon public lands with intent to inclose them for private use would be a mere trespass, and that such fences might be abated by the officers of the government, or by the ordinary processes of courts of justice. ”

“ It is equally immaterial that the defendants have undertaken to build large reservoirs for water to be supplied for the irrigation of its lands, or that they have proceeded in accordance with the act of congress in acquiring the necessary sites to be used in the construction of such reservoirs, or that they have expended large sums of money in providing for this improvement. If they have inclosed the public lands in violation of the statute, it is no answer to say that they have inclosed them for irrigating as well as for pasturage purposes. ”

“ There is no doubt of the general proposition that a man may do what he will with his own, but this right is subordinate to another, which finds expression in the familiar maxim, 'Sic utere tuo ut alienum non laedas.' His right to erect what he pleases upon his own land will not justify him in maintaining a nuisance, or in carrying on a business or trade that is offensive to his neighbors. ”

“ If there be any general impression that in dealing with public lands the rights are altogether those of the individual proprietors, and that such rights as the government has exist only by their sufferance, the act in question will do much to rectify this misapprehension. ”

“ The government has the same right to insist upon its proprietorship of the even-numbered sections that an individual has to claim the odd sections; and if such proprietor would have the right to complain of the government fencing in his lands in the manner indicated, and leasing them for pasturage, the government has the same right to complain of a similar action upon his part. ”

“ By section 2 of said act it is made the duty of the district attorney of the United States for the proper district, when complaint is made to him by affidavit by any citizen of the United States that section 1 of the act is being violated, to institute a civil suit in the name of the United States, in the proper United States district or circuit court, against the person or persons in charge of or controlling the unlawful inclosure complained of. ”

“ It may deal with such lands precisely as a private individual may deal with his farming property. It may sell or withhold them from sale. It may grant them in aid of railways or other public enterprises. ”