The lands in question are in the mountains in the vicinity of East Willow, Little Creek, and She Canyon, in Grand county. They are useful only for grazing purposes. Grand county is one of the few counties of the state where there still are public grazing ranges. The area in question covers about four townships. All originally, and still largely, of the public domain. The defendant, for years, was, and still is, engaged in the cattle business, grazing and feeding them on the public range or public domain. In about 1922 the government withdrew from settlement or purchase 15 or 20 40-acre tracts of land along and in the vicinity of East Willow and Little Creek as and for public watering places. Such withdrawals were *Page 240 scattered over two or more townships. Thereafter, and between 1922 and 1926, the plaintiff, by purchase or lease, acquired tracts of land, mostly 40-acre tracts, aggregating about 3,400 acres, scattered along or in the vicinity of streams and the public watering places, and scattered over several townships and bordering on and surrounded by the public domain. His lands were uncultivated, unfenced, and uninclosed, and were used either by himself or leased to others for grazing purposes, especially for grazing sheep, which were herded and ranged all over the public domain. The situation was such, and as stated by the trial court, that if the defendant was required to restrain his cattle and keep them off the lands of the plaintiff, so scattered here and there over the public range, it would mean:
"That he will have to herd his cattle like a man now herds his sheep or else not permit them to go on the public range, because the evidence shows if they go upon the range they do of their own accord, unless restrained in some manner, feed all over this whole territory."
And, as is shown by the evidence, and recognized by the courts (Western Wyoming L. L. Co. v. Bagley (C.C.A.) 279 F. 632):
"It is the disposition of cattle to roam, and when turned loose upon the range a herd of cattle will in a short time be scattered for miles over the surrounding country. It is within the power of a sheep-herder to hold a band of sheep upon any particular section of land and depasture it. But this is not practicable with cattle. The most that can be done with a herd of cattle is to hold them within a relatively large area by range riders, driving those back which leave or attempt to leave the range."
There is no evidence to show that the defendant willfully drove or herded, or pastured, his cattle on the lands of the plaintiff, or that he turned them out on the public range with the intention that they should feed or pasture on plaintiff's lands. The evidence is he turned them out on the public domain to there feed and pasture. It further shows that he knew or was told the location of some of plaintiff's *Page 241 lands; was warned or notified to keep his cattle off such lands; that some of them strayed or wandered and fed on some of such lands, the defendant claiming that if he herded and pastured his cattle on the public domain the plaintiff's lands being uninclosed and in small tracts scattered over several townships, and some of them in such close proximity to the public watering places, it was impracticable if not impossible to feed or pasture his cattle on the public domain without some of them straying or wandering and feeding on some of the lands of the plaintiff. But, as presently will be seen, such does not constitute a wanton, willful, or intentional trespass.
The situation here is analogous to that in the case ofBuford v. Houtz, 133 U.S. 320, 10 S. Ct. 305, 33 L. Ed. 618, decided in 1890, on an appeal from a judgment of the Supreme Court of the Territory of Utah. The syllabus in the case reflects the decision. It is:
"As there is a recognized public right of pasturage on the public domain which is left open, defendants cannot be enjoined from exercising such rights by persons who own parcels of land detached and scattered through a large body of the public domain, and lying open, though thereby defendants' cattle will trespass on complainants' land."
"The common-law of England, that every man must restrain his stock within his own grounds, is not applicable to the sparsely-settled portions of the west."
In the course of the opinion it is said:
"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. * * * All the people who had cattle that they wished to graze upon the public lands, permitted them to run at large over the whole region, fattening upon the public lands of the United States and upon the uninclosed lands of the private individual without let or hindrance. * * * It has never been understood that in those regions and in this country, in the progress of its settlement, the principle prevailed that a man was bound to keep his cattle confined within his own grounds, or else would be liable *Page 242 for their trespasses upon the uninclosed grounds of his neighbors. Such a principle was ill adapted to the nature and condition of the country at that time."
In conclusion the court further observed:
"Upon the whole, we see no equity in the relief sought by the appellants in this case, which undertakes to deprive the defendants of this recognized right to permit their cattle to run at large over the lands of the United States and feed upon the grasses found in them, while, under pretense of owning a small proportion of the land which is the subject of controversy, they themselves obtain the monopoly of this valuable privilege."
Upon such ground and for such reasons the injunction was there denied. The denial, however, was not based merely on the ground of lack of equity or that the matters were not of equitable cognizance, or that there was an adequate remedy at law, but "on the contrary, the court went to the root of the principles governing the rights of the parties." Mackay, v. UintaDevelopment Co. (C.C.A.) 219 F. 116, 120. Thus, while the court denied the injunction for lack of equity, yet such result was reached from a consideration of "the principles governing the rights of the parties."
Following that decision are cases to the effect that regardless of fence laws one may become liable for a wanton or willful trespass upon lands of another, but not for cattle or animals turned loose on the public domain and wandering or straying on uncultivated and uninclosed lands of another bordering on or surrounded by the public domain. Cases both federal and state are numerous to that effect.
In 1890 the Legislature of the Territory of Utah adopted the present fence law (Comp. Laws Utah 1917, §§ 56, 58), referred to in the prevailing opinion. The meaning or intention of that act is what chiefly divides us. By the prevailing opinion the view is taken that by such act the common law of England with all its rigor was adopted, and hence in counties where there is no declaration in favor of *Page 243 fencing "farms," and allowing animals to run at large as provided by section 56, one is required to restrain and keep his cattle or other animals on his own ground, and if he does not do so he becomes liable for injury done by their trespass, whether the trespass be willful or intentional or otherwise. I think such a holding is contrary to the prior decisions of this court rendered since the adoption of the statute and wherein it was construed and applied. In Jones v. Blythe, 33 Utah 362, it was held that under the statute an owner of sheep is not liable in damages resulting from an unintentional trespass on uninclosed lands in a county in which the fence law was in force, yet is liable where he intentionally drives his sheep on such lands. In Thomas v.Blythe, 44 Utah 1, 137 P. 396, it was said that in the case ofBuford v. Houtz, supra:
"It was in effect held that the uninclosed uncultivated lands of the west, which practically form a part of the public domain although owned by private owners, are nevertheless not goverend by the same rules respecting trespasses committed on them by cattle or other animals going thereon and eating the grasses and herbage therefrom as are the inclosed or cultivated lands."
The court further said that counsel for respondent
"contend that the same rule applies to the lands in question that would apply to cultivated farm lands in this state as provided in Comp. Laws 1907, Section 20 [which in the 1917 compilation is Section 58] to which reference is made in Jones v. Blythe, supra. We have already pointed out that this court is committed to a contrary doctrine. Section 20 aforesaid should be given a reasonable construction and application, and we are still of the opinion that the construction and application given it in Jones v. Blythe, supra, is both just and practical. To hold that the Legislature intended the provisions of section 20 to have any application to the arid uninclosed and uncultivated lands of this state is tantamount to holding that the Legislature intended to pass unjust and oppressive laws. There are, perhaps, no less than 50,000 to 75,000 square miles of arid uninclosed and uncultivated lands in this state, most of which is still held by the general government, and on which animals have, from time immemorial, gone at will for the purpose of eating the small amount of grass and herbage growing thereon. Respondent's lands come *Page 244 within the vast area of arid lands aforesaid, and the mere fact that he may be the owner of the lands described in the complaint does not change their character in the least degree."
The court thus construed the statute to be applicable only to farms or cultivated lands, but not to lands of such character as here in question; and to mean that an owner of animals is not liable for an unintentional trespass on such uninclosed and uncultivated lands, and is liable only for a willful or intentional trespass on them.
In Mower v. Olsen, 49 Utah 373, 164 P. 482, this court, again having the statute under consideration, after referring to and approvingly quoting from Jones v. Blythe, supra, andThomas v. Blythe, supra, said:
"It will be seen from the foregoing cases, all cited in the defendants' brief, that this court construes the statute to mean, and now stands committed to the doctrine, that where a party knowingly, deliberately and intentionally drives or permits his animals to go upon the lands of another, against his will and regardless of his protests, for the purpose of deriving the benefit of his pasturage, it becomes such a trespass as the law will require him to answer for in damages."
In Hall v. Bartholomew, 51 Utah 279, 169 P. 943, the court again considered the statute, and after quoting it, said:
"It is admitted in the record that there is no ordinance of Sanpete County requiring the owner or occupant of land to inclose the same with a fence, and that no action has ever been taken by the county commissioners of that county designating what would be a lawful fence. Said section 20 has been construed by this court in three former opinions, and it would be of no avail to discuss or add to the construction placed upon it by said decisions," citing Jones v. Blythe, supra, Thomas v. Blythe, supra, and Mower v. Olsen, supra.
The court further there stated that the construction by this court was to the effect that under the statute an owner of uninclosed pasture land located on the public range in this state, especially when surrounded by vast tracts of unimproved *Page 245 public domain, may not recover damages for animals trespassing upon such lands unless the trespass is intentional or willful.
I see good reason for the holding in the case of Thomas v.Blythe, supra, and approved by the subsequent cases, that the statute is inapplicable to uninclosed uncultivated or unimproved privately owned lands bordering on and surrounded by vast tracts of grazing lands of the public domain, and is applicable only to farm or cultivated or improved lands, and that an owner who turns his animals out to graze on the public domain is not liable if they stray or wander on uncultivated or uninclosed privately owned wild grazing lands and of a character similar to that surrounded by the public domain, but is liable only for a willful and an intentional trespass. I think the bench and bar alike consider such to be the settled doctrine in this state. I see no good reason to now depart from it, especially in view of the conditions and circumstances before us where if the defendant, when he turns his cattle on the public domain, is required to keep them from straying or wandering on the uninclosed lands of the plaintiff bordering on and surrounded by the public domain, he as well as all others, except the plaintiff, is deprived from feeding or pasturing cattle on the public domain, for it is the disposition of cattle to roam and scatter when turned loose, and it is impractical to herd and confine them as sheep may be herded and confined.
Nor do counsel for the plaintiff contend for any such doctrine as now announced by the prevailing opinion. In their brief they seek to defend the judgment on the theory that the trespass was willful and intentional. After referring to excerpts from the record which they claim support their contention in such particular, they say:
"The defendant contends that the trespass by his cattle was unintentional and caused by the mere straying of cattle upon the lands of the plaintiff, as distinguished from a wilful trespass. The authorities, however, show and hold that under a state of facts such *Page 246 as exists in this case the same was a wilful trespass such as will permit a recovery. The law upon such trespasses is that a wilful trespass may be committed by the owner of animals without driving them upon the lands of the complaining party. It is committed if the owner turns his cattle loose upon other lands knowing that they will necessarily enter the lands of injured party and intends that they should do so."
To support that they cite and rely on the cases heretofore referred to from this jurisdiction and cases from other jurisdictions.
But, on the record, I do not agree with counsel that this was a willful or intentional trespass. As bearing on the question these propositions are established by the record. The defendant turned his cattle on the public domain or public range to there feed and pasture, and not with the intention that they should feed or pasture on other lands. He knew the location of some of plaintiff's lands and was warned and notified to keep his cattle off such lands. He, by turning his cattle on the public range, knew that some of them naturally were likely to stray or wander on uninclosed lands of the plaintiff, especially those acquired by him near or in the vicinity of the reserved public watering places, as well as on other uninclosed lands of the plaintiff acquired by him and scattered over the public range and bordering on and surrounded by the public domain. Such are the chief factors pointed to by respondent from which the conclusion is deduced that the trespass was willful or intentional. They, in my judgment, do not show a willful or intentional trespass.
In the case of Martin v. Platte Valley Sheep Co., 12 Wyo. 432,76 P. 571, as bearing on the question, the Wyoming court said:
"But it is argued, since the defendants knew that their cattle would naturally wander upon the premises of plaintiff if they allowed them to graze unrestrained upon the neighboring public land, their action in turning them at large upon the public land was tantamount to driving them upon plaintiff's premises. This argument *Page 247 ignores the very distinction under the rule between the case where cattle at large wander upon uninclosed premises and where their owner wilfully drives them thereon, and practically removes the only reason for the rule prevalent here and in so many jurisdictions in this country. Every person knows that his cattle and horses permitted to run at large are liable to roam upon and depasture uninclosed premises. One who turns cattle upon his own uninclosed ground, to graze at will, must know that they will probably wander upon the adjoining uninclosed premises of his neighbor, if there be such; and yet that fact has not been deemed sufficient to constitute him a wilful trespasser. It is in just such cases, under the doctrine prevalent here, that the owner of the animals has been held not liable for the injury caused by them."
In Richards v. Sanders, 39 Colo. 270, 89 P. 769, 121 Am. St. Rep. 167, it is also said:
"One who turns his cattle out to graze unrestrained on lands where he has a right to turn them, knowing that they will probably wander on the uninclosed premises of another, is under no obligation to prevent them entering upon such premises, and, if they do so enter, he is not responsible for the damages occasioned thereby."
To the same effect is the case of Western Wyoming Land LiveStock Co. v. Bagley (C.C.A.) 279 F. 632, and other cases there cited. The decisions of this court are in line with such views.
I therefore think the judgment should be reversed, and the case remanded for a new trial.