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decided: March 27, 1893.



Author: Brown

[ 148 U.S. Page 303]

 MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

This case was originally dismissed upon the ground that the question at issue between the parties being the fact whether defendant had claim or color of title to the lands in question, acquired in good faith, there was no evidence of the value of such claim or color of title, even if the same were capable of pecuniary estimation, of which the court expressed a doubt. 146 U.S. 533.

The case was subsequently reinstated upon its being made to appear that the enclosed tract contained 1200 acres; that defendant had been engaged since 1883 in the business of grazing cattle upon this grant and the lands adjacent thereto; that his fence enclosed and controlled the only unappropriated water in a section of grazing country embracing not less than 100 square miles; that without such fence the use and control of the enclosed land and water would be of no use to him; that if he had not the ability to maintain the fence, the land and water would be at once seized and appropriated by other persons, and defendant's cattle driven and kept away; that he would be unable to conduct his cattle business in this section;

[ 148 U.S. Page 304]

     and that the possession, use and occupation of such enclosure exceeds the value of $10,000. These facts make a wholly different showing, and the case is therefore properly before us on its merits.

1. A preliminary objection is made by the appellee to the consideration of the case upon the ground that the proceeding is in the nature of a common law action; that it was tried without the intervention of a jury, and without a stipulation waiving a trial by jury; that the Supreme Court of Arizona could not properly consider any of the matters raised by the bill of exceptions, nor can this court do so; that all the Supreme Court could do was to affirm the judgment of the District Court; and that all this court can do is to affirm the judgment of the Supreme Court of Arizona. By section 2 of the act of February 25, 1885, under which this prosecution was commenced, the district attorney was given authority "to institute a civil suit in the proper. . . Territorial District Court in the name of the United States, and against the parties named or described who shall be in charge of or controlling the enclosure complained of as defendants; and jurisdiction is also hereby conferred on any. . . Territorial District Court having jurisdiction over the locality where the land enclosed, or any part thereof, shall be situated to hear and determine proceedings in equity, by writ of injunction, to restrain violations of the provisions of this act. . . . In any case, if the enclosure shall be found to be unlawful, the court shall make the proper order, judgment or decree for the destruction of the enclosure in a summary way, unless the enclosure shall be removed by the defendant within five days after the order of the court."

It is a sufficient answer to this objection of the Government to say that this is not a common law action, but a summary proceeding more in the nature of a suit in equity, and that the decree provided by the act for the abatement of the enclosure is unknown to an action at common law as administered in this country. Proceedings by assize of nuisance and by writ quod permittat prosternere have been abolished by statute in England, and are now obsolete, if ever used, in this country.

[ 148 U.S. Page 3053]

     Bl. Com. 221. In cases like the present the only common law remedy available to the United States would be an action of ejectment or trespass to oust the intruders. The proceeding contemplated by this act is more nearly analogous to the summary remedies provided for the enforcement of mechanics' liens considered by this court in Idaho and Oregon Land Co. v. Bradbury, 132 U.S. 509, or the special proceedings under the territorial statutes of Utah discussed in Stringfellow v. Cain, 99 U.S. 610; Cannon v. Pratt, 99 U.S. 619; Neslin v. Wells, 104 U.S. 428; Gray v. Howe, 108 U.S. 12; and in Ely v. New Mexico &c. Railroad Co., 129 U.S. 291, appealed from the Supreme Court of Arizona. In these cases the validity of special statutory proceedings of this description was sustained, and in Hecht v. Boughton, 105 U.S. 235, it was held that under the act of April 7, 1874, 18 Stat. 27, c. 80, an appeal was the only proceeding by which this court could review the judgment or decree of a territorial court in a case where there was not a trial by jury.

The practice pursued in this case conformed to the territorial statutes of Arizona, which provide for a waiver by oral consent in open court of a trial by jury, in actions arising upon contract, and with the assent of the court, in other cases. The case is not governed by section 649 of the Revised Statutes.

2. The act of Congress which forms the basis of this proceeding was passed in view of a practice which had become common in the Western Territories of enclosing large areas of lands of the United States by associations of cattle raisers, who were mere trespassers, without shadow of title to such lands, and surrounding them by barbed wire fences, by which persons desiring to become settlers upon such lands were driven or frightened away, in some cases by threats or violence. The law was, however, never intended to operate upon persons who had taken possession under a bona fide claim or color of title; nor was it intended that, in a proceeding to abate a fence erected in good faith, the legal validity of the defendant's title to ...

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