Samuel Freeman Miller

“ The universal understanding of all classes of the community, upon which they have acted by inclosing their crops and letting their cattle run at large, is entitled to no little consideration in determining what the law is ”

“ The whole system of the control of the public lands of the United States, as it has been conducted by the government under acts of congress, shows a liberality in regard to their use which has been uniform and remarkable. They have always been open to sale at very cheap prices. ”

“ Laws have been enacted authorizing persons to settle upon them, and to cultivate them, before they acquire any title to them. While in the incipiency of the settlement of these lands, by persons entering upon them, the permission to do so was a tacit one, the exercise of this permission became so important that congress, by a system of laws called the 'Pre-emption Laws,' recognized this right so far as to confer a priority of the right of purchase on the persons who settled upon and cultivated any part of this public domain. ”

“ If the owner of the inclosed ground had his fence constructed in accordance with the requirements of the statute, the law presumed then that an animal which invaded this inclosure was what was called a 'breachy' animal, was not such animal as should be permitted to go at large, and the owner was liable for the damages done by him. Otherwise the right of the owner of all domestic animals to permit them to run at large, without responsibility for their getting upon the lands of his neighbor, was conceded. ”

“ The appellants being stock-raisers, like the defendants, whose stock are raised and fattened on the unoccupied lands of the United States mainly, seek by the purchase and ownership of parts of these lands, detached through a large body of the public domain, to exclude the defendants from the use of this public domain as a grazing ground, while they themselves appropriate all of it to their own exclusive use. ”

“ The right of all to pasture their cattle upon uninclosed ground is universally conceded. No man has questioned this right, although hundreds of cases must have occurred where the owners of cattle* have escaped the payment of damages on account of the insufficiency of the fences through which their stock have broken, and never till now has the common-law rule, that the owner of cattle is bound to fence them up, been supposed to prevail or to be applicable to our condition. ”

“ Gedney, 38 Cal. 579, the court distinctly held that 'the rule of the common law of England, that every man is bound to keep his beasts within his own close under the penalty of answering in damages for all injuries resulting from their being permitted to range at large, never was the law in California.' This decision is the more in point, as California, like Utah, was acquired from Mexico by the same treaty. ”

“ It is then alleged that the sheep, in grazing upon the lands do it a permanent injury, and drive away the cattle from such lands, whereby, if the defendants are permitted to drive and pasture their sheep on the lands of the plaintiffs, those lands will be greatly damaged, and, for a long period of time in the future, rendered valueless for the purpose of grazing and pasturing their cattle. ”

“ It seems to be founded upon the proposition that while they, as the owners of the 350,000 acres thus scattered through the whole area, are to be permitted for that reason to exercise the right of grazing their own cattle upon all of the land embraced within these 1,440 square miles, the defendants cannot be permitted to use even the lands belonging to the United States, because in doing this their cattle will trespass upon the uninclosed lands of plaintiffs. ”

“ That, owing to their character, the scarcity of water, and the aridity of the climate where these lands are situated, they can never be subjected to any beneficial use other than the grazing of stock. ”

“ During the time that the settler was perfecting his title by making the improvements which that statute required, and paying, by installments or otherwise, the money necessary to purchase it, both he and all other persons who desired to do so had full liberty to graze their stock upon the grasses of the prairies, and upon other nutritious substances found upon the soil. ”

“ They then allege that they have no adequate way of estimating the damage which they will suffer should defendants, or either of them, do as they have threatened to do, as herein stated, for the reason, among others, that the destruction of the food, grasses, and herbage on plaintiffs' lands will result in depriving plaintiffs' cattle of necessary food, thereby causing great deterioration in flesh and consequent value, which loss and deterioration cannot be adequately determined by witnesses ”

“ These lands were alternate sections of odd numbers according to the congressional grant to the railroad company, and they, with the other tracts mentioned in the plaintiffs' bill, are said to amount to over 350,000 acres, 'and extend over an area of forty miles in a northerly and a southerly direction, by about thirty-six miles in an easterly and westerly direction.' The allegation is that these lands are very valuable for pasturage and the grazing of stock, and are of little or no value for any other purpose, and were held by the plaintiffs, and are now held by them, for that purpose solely. ”