delivered the following separate opinion:
On the 1st day of July, 1862, the congress of the United States passed an act entitled “An act to aid in the construct] on of a railroad and telegraph line from the Missouri river to the Pacific ocean, and to secure to the government the use of the same for postal, military, and other purposes.” By the first section of this act the Union Pacific Railroad Company was created, erected into a body corporate, and given the customary powers of a corporation. By the third section there was, in express terms, granted to thecorporation,forthe purpose of aiding in the construction of its line of railway, and for other avowed purposes, every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile, on each side of the line of railway, and within the limits of 10 miles on each side of the road. By supplemental legislation the grant was so extended as to comprise a belt of 40 miles, or 20 miles on each side of the road. It is agreed by counsel, as per statement of agreed facts on file, that whatever title the Union Pacific Railroad Company had in and to the aforesaid odd-numbered sections was regularly transmitted to the Union Pacific Railway Company, and by the latter transmitted to the Wyoming Land & Improvement Company, and by the last-named company to the defendant corporation.
The chief point of contention between the plaintiff and the defendant in error arises out of the asserted right of defendant to build and maintain upon its own land a fence which will operate as an inclosure of the public land. In other words, the complaint of the government is, substantially, that the Douglas-Willan Sartoris Company, with the sole and unlawful design of inclosing the lands of the government, has planned, already built, and proposes to build, a continuous line of barbed-wire fence, which, when completed, will have the effect to sever from the public domain over 200 even-numbered sections in 12 townships, situate in a compact body, and of the form of a quadrilateral. By those familiar with the frame-work of the rectangular system of surveying it is well understood that, after the initial point for the survey within a given surveying district is agreed upon, a principal base line is run east and west therefrom, on a true parallel of latitude. Beginning thereafter at the same initial point, a principal meridian is extended north and south therefrom. Lines, called “standard parallels,” are then run every four townships, or 24 miles, north of the base line, and every five townships, or 30 miles, south of the base line. This being done, lines called “guide meridians” are surveyed at intervals of eight ranges, or 48 miles. The parallelograms thus formed are divided into townships, sections, and parts of sections. Each section of every township is numbered, beginning with the numeral 1, and ending with the number 36. 'For the purpose of this case, the section may be regarded as the unit of the rectangular system. From the pleadings and exhibits it sufficiently appears that the inclosure, as already built and threatened to be built, may be generally described as be*289ginning in section 35, township 17, range 76, and utilizing in its course certain linear fragments of pre-builtfenee of other parties, as well as the shores of certain lakes; running thence in a north-westerly course; thence deflecting eastwardly; thence northwesterly, until it reaches the northern section line of section 3, township 19, range 76; thence, on a comparatively right line, until it reaches the east line of section 3, township 19, range 75; and thence southerly, ranging south-westerly, until it reaches a point a few sections only from the beginning. The description is inexact, but may serve to illustrate, in the absence of a diagram, the principles of this opinion. By stipulation between the parties the following facts are agreed: That the fence already built is wholly on odd-numbered sections ; that the fence proposed to be built will be, if completed, wholly on odd-numbered sections; that the entire line, if completed, will be about four inches from the section lines; that when the corner-stones, which mark the point of contact between the retained and granted sections, are reached, they will be leaped; and that the defendant has neither joined to them nor will join to them.
It is obvious, and in argument is so conceded, that the incidental effect of a fence so located will be to encompass the even-numbered sections of the public domain situate within this large area. The action, therefore, by the government, seeks, in a5d of ulterior purposes, the destruction of the fence already built, and a perpetual injunction against its completion on the lines indicated. It is brought under an act of the congress of the United States approved February 25,1885, entitled ‘‘ A n act to prevent unlawful occupancy of the public lands.” 23 U. S. St. 1883-85. Thefirst section provides “that all inclosures of any public lands in any state or territory of the United States heretofore or to be hereafter made, erected, or constructed by any person, party, association, or corporation, to any of which lands included within the inclosure the person, party, association, or corporation making or inclosing the inclosure have no claim or color of title, made or acquired in good faith, or an asserted right thereto, by or under claim made in good faith, with a view to entry thereof at the proper land-office under the general laws of the United States at the time any such inclosure was or shall be made, are hereby declared to be unlawful, and the maintenance, erection, construction, or control of any such inclosure is hereby forbidden and prohibited.” The second section directs district United States attorneys, on complaint made, to-institute civil suits against offending parties, confers jurisdiction upon territorial and other courts to hear and determine the complaint by proceedings in equity, and by writ of injunction, and by final judgment, to summarily decree the destruction of the inclosure. The remaining sections forbid the obstruction, by threats or intimidation, of a settlement on or transit over the public domain, fix penalties, and prescribe the duties of the president in relation to obstructions.
It is insisted by counsel for the defendant that the act quoted was not intended to prohibit, and does not in terms prohibit, that character of inelosure which results incidentally, though necessarily, from maintenance of a continuous line of fence built wholly on his own land, but was intended to forbid, and does forbid, only the construction of fences or other obstructions which are actually erected on land belonging to the government. The only argument advanced in support of this proposition is that, when a statute is susceptible of two constructions, one shall prevail which will not result in the violation of vested or constitutional rights. Counsel cite U. S. v. Brandestein, 32 Fed. Rep. 738, (opinion by Judge Hoffman, of the district court of California.! That action was instituted under the act of February 25th, just quoted. The point of contention between opposing counsel seemed to be whether the grant oí land to the Southern'Pacific Railroad by the act of June 27, 1866, was a grant in priBsenti, or was in effect an agreement or provision that the title should in the future be conveyed to the corporation on the performance by it of certain conditions precedent. On this point of contention the learn ed judge pretermitted an expression of de cided opinion, and held, in harmony with the view taken by counsel for this defendant, that the act was not intended to pro hibit the erection of fences by the defendants on their own land, although such structure served to complete an inclosure of the public domain. My brother, Justice Coen, entertains an opinion similar to thai of Judge Hoffman, predicating his views, as I understand them, upon the idea that, whatever may ,be the apparent meaning of the language of the statute, it will not be presumed that it was the legislative intent to forbid to an owner of land the right to erect a fence on his own property, unless
*291
*293such intent be clearly expressed in the statute. The chief justice is of opinion that the. act was intended to apply to the case of the defendant, and that it is a valid and constitutional enactment. I concur with the chief justice on the first branch of the propositions, and differ from him on the second.
If the interpretation which gives to the act so limited an application be correct, the inquiry suggests itself, what special object did congress have in enacting the firsl section of the act? A purpresture is an offense at common law, and, whether it does or does not amount to a nuisance, the courts of common-law jurisdiction have power to abate it, and in numerous instances an injunction will lie to prevent it; so, if the destruction and prevention of an inclosure, erected and to be erected solely on public lands, is the limit of the application of this act of congress, then to me it clearly appears that the distinctive feature of the entire enactment is supererogatory for, without and independently of the act, it is unlawful to erect an obstruction or inclosure on the public lands, unless a license so to do be expressly or impliedly given. Without it the courts of the United States have jurisdiction to decree their removal and to prevent their completion, and without it it is the duty of the United States district attorney to prosecute all civil actions that may be brought to suppress such wrongs. Certainly this was the law as it stood at the date of this enactment. It is not tobe presumed that congress meant to be engaged in the idle work of phrase making. It is not to be presumed that a legislative body would enact a statute without other purpose than to declare what is already indisputably and confessedly thelaw. Besides, ifc seems that the language used shows that the act was intended to applyto cases such as we have at bar. Whatis forbidden? The inclosure — i. e., the environment, the surrounding — of the public land, to any of which the party so inclosing has no title, claim, or color of title. Is there not here an environment, a surrounding, of land, incidental though it be, to which defendant expressly disclaims title? Of this there cannot exist a doubt. It is not the mere location of the fence, but its operation as an environment, which, under the act, is supposed to give to the United States this cause of action. I am therefore of the opinion that the act of February 25th was intended to apply, and does in its terms apply, to a character of inclosure of which that erected by the defendant and that which is contemplated is a fair type. I am, however, unable to perceive that the act of defendant, as so ably contended by counsel for the United States, is a public nuisance at common law, and therefore liable to abatement independently of the statute. That police power exists at common law; that it covers the whole subject of nuisance, and is adequate to its suppression, — is not denied. But the question for determination here is not the adequacy of the common lawto afford relief against an already committed or a threatened nuisance ; but, rather, is the defendant, in the commission of the act done by it, guilty of a nuisance? “ Whatsoever unlawfully annoys or doth damage to another is a nuisance.” Bl. Comm. bk. 3, p. 5. To constitute this fencing a nuisance at common law, it must, therefore, be unlawful with respect to the rights of the government, and it must be to the damage of the government. In what is the damage supposed to consist? Its existence,if discernible at all, is set forthin that portion of the argument of counsel which so earnestly affirms that the government must have free access to its domain for governmental purposes; that congress cannot anticipate what portion of the public land may or maynot be needed for reserves, fortifications, arsenals, and depots; and that, if the practices of the defendant are sustained, then the government must depend for its own uses wholly upon private agreement, adjudications, or appropriations of private property under the constitution. And from this the conclusion is deduced that congress did not part with its sovereign power of control over the odd-numbered sections, which passed by its grant to the Union Pacific Railroad Company, — a conclusion which is at war with the principles of many well-considered opinions, both of state courts of last resort and of the supreme court of the United States.
It is no longer a question open to dispute that, when the government becomes a party to a contract between itself and its citizens, it divests itself of its sovereignty in respect to the terms and conditions of the contract, its construction and interpretation, and stands in the same position with reference to the contract as a private individual. As said by the supreme court of Massachusetts, (Com. v. Proprietors, 2 Gray, 350:) “If it were otherwise, the rights of parties contracting with the government would be held atthe caprice of the *295sovereign, and exposed to all the risks * * * of misguided power.” “When a government enters into a contract with an individual, it deposes, as to the matter of the contract, its constitutional authority, and exchanges the character of legislator for that of moral agent, with the same rights and obligations as an individual. It is, in theory, impossible to reconcile the two ideas of a promise whichobliges with a power to make a law which can vary the effect of it.” Hamilton’s Works, vol. 3, p. 518.
But, recurring to the question of damage: A.s appears, both in pleading and argument, this arises out of the need of the gov-ernmentto have free access to its own property for all the uses to which the domain may lawfully be applied. Why should not the government, in the language of its counsel, “depend, for its own use, upon private agreement, judicial adjudication, or appropriation of private property under the constitution?” The individual, similarly situated, would have to depend on these agencies, and there can surely be no serious contention that the government, in dealing with rights not its own, occupies a point of advantage distinct from or superior to that of any of its citizens. If A., owning a tract of 100 acres, should sell to B. the entire area, except 10 acres reserved in the centre, the fencing by B., either of his exterior or intei’ior lines, could not, upon any principle or authority, be called a public or a private nuisance, to be abated by the power of the law. A. would be deemed to have a way of necessity to and from his reserved acreage, the designation of which primarily would lie with the owner of the servient estate. But surely A. could not be heard in a court of justice to demand that B. should destroy his entire fencing, to afford to him the privilege of unlimited ingress and egress wheresoever he listed. This, then, is the damage to the government, — thatits freedom of access to its own land is obstructed by the fence which the defendant has erected on its own land. There is no other complaint in this action; there can be no other complaint. There is no other damage cognizable under the procedure adopted; there can be no other damage. And on this the government most singularly, according to my comprehension, contends that the defendant maintains a nuisance, because it should so use its own property as not to damage another.
It is true that the defendant may use the land of plaintiff, as it may, by the fence, obtain the benefit of the use to the exclusion of all other citizens for whom the government holds the public land intrust. But it is the actual use, and not the fence, which works the evil. That actual use would only render the defendant liable, if for anything, to the common-law action of trespass, and not to an equitable proceeding, by which its property is to be destroyed and its reconstruction forbidden. It should, therefore, be constantly kept in mind that, in the action as brought and prosecuted, it is not pretended that the damage results from defendant’s actual and exclusive use of the public land, no matter how unlawful in fact that use may be, but from the erection of a fence on its own land which interferes with the agents and beneficiaries of the government. That the use of another’s property, without his consent, is improper; thatthelaw-making power may impose penalties for such use, — is not controverted; but that is not the question which arises in this case. The act under which the suit is prosecuted forbids two things: (1) The inciosurereferred to; and (2) the assertion of a right to the exclusive use of public land without right or color of right. The actual use, as distinguished from the assertion of the right to use, is not forbidden. In a civil proceeding for the violation of this act there is no penalty prescribed, either for the use, or for the assertion of the right to use. The only judgment which can, under the act, be rendered in a civil suit, is for the destruction of the fence, and an injunction against its rebuilding. On this idea the petition is framed, having in view but-one object, the destruction of the fence, — an object which is wholly separate and distinct from any use or asserted right of use. The fence thus presenting an artificial barrier, which impedes the travel by the public over land which the public does not own, how does the maxim, sic utere tno ut alienum, have even the remotest application ? The exercise of the repressive force of the police power of the sovereign presupposes that a public or a private wrong has been committed, oris about to be committed. Now, the act of the defendant in the erection of the fence is in itself lawful. On what known principle shall the defendant be liable to action, unless this act of erection unlawfully interferes with the right of another? The maxim cannot apply unless some legal right of the government has been violated ; for it may be laid down as a prinei-*297pie, impregnable to any assault either of reason or prevailing authority, that an act legal in itself, violating no right, cannot be made actionable in itself, on the ground of the motive which induced it. The law does not deal with abstract ideas or emotions; it does not punish an intent disassociated •from an act. Whatis that legal right with the unlawful interference of which the defendant is charged? Ordinary analysis will show that it is an alleged right of way : a right of travel; a right to go upon lands which are private property. Whence did the government obtain such rights? From whom and when were they derived? If they exist by virtue of any law other than the law of physical force, and the defendant by its fence obstructs the free exercise of the least of them, then the use to the extent of the obstruction would bedeemed unlawful. But these rights were not obtained by contract. They do not arise by operation of law. They are not inherent by reason of sovereignty.
In all governments of constitutional limitations, sovereign powermanifests itself in but three ways: By exercising the right ■of taxation; the right of eminent domain; and throughits police power. Itis claimed with great earnestness that the case of defendant falls within the range of this last element of sovereignty. The range of this power is sweeping. The extentto which it . may go, the limits within which it is circumscribed, cannot be defined by any formulated rule. That it extends to public morals, the health and safety of the citizens, and in special and peculiar cases to the conservation of public convenience, will be admitted. Butwithout pausing in a fruitless attempt at a definition of the term, or to arrange the class of cases in which it may be invoked, it may be observed that, in republics, “sovereignty,” no matter through what channel it may operate, has a legal signification, distinct from its philological import. In the former sense, it does not import those extensive attributes or prerogatives, the exercise of which is restrained only by discretion. The right of taxation is one of the most striking attributes of sovereignty. In this field government approaches the absolute. The rate, the subjects, the time, the mode, of taxa-tion are wholly within the discretion of the law-making power. But that power has neither the legal nor the moral right to exact a tribute from one citizen to build up the trade or the fortunes of another; and, ■ whatever may be the mask under which such legislation is hidden, a court of justice will seize the disguise, and brand the enactment as robbery under the form of law. So, when the effort is made to take the citizen’s property by invoking the police power of the government, — a power which proceeds in destruction with no returning compensation ; when it is plain that, if taken at all, it should be through that other element of sovereignty, which refuses to even rudely touch until full compensation is made, — the duty of the courts is no less imperative.
By the congressional grant of 1862, the title to the odd-numbered sections therein described vested absolutely in the Union Pacific Railroad Company. Thegrantwas made in animprovidentfashion. The government established the rectangular system of surveying, and so separated the odd from the even numbered sections as to leave between them only a geometrical line. It thus made the possibility of a clash of whatever conflicting interests might ensue between it and its grantees, when that conflict could have been easily avoided by originally making the section lines, or the lines of alternate tiers of sections, the center of passways or common roads. Whose fault, therefore, is it that the opposing parties are involved in this dilemma? If blame shall rest anywhere, it must lay at the door of the government, which, being primarily the owner of the land, platted it, and then granted alternate sections to the railroad company. I do not charge that the congress is guilty of culpable negligence in making the grant without reserving the way, or providing the method by which free access could be had to retained sections, but it may not be amiss to call attention to that principle which estops one who is himself guilty of blame from invoking the maxim, sie utere, etc. The title thus obtained by the Union Pacific Company, and which has been transmitted to a remote vendee, carried with it the right to use, to enjoy, and to make profitable the thing granted. When a thing is given, the incidents which will enable the owner to utilize it, and to enjoy it to the exclusion of all the world, are also given, “that the thing may have value, rather than perish.” Suppose these odd sections, instead of being owned by the defendant corporation, were owned by as many different persons, and each person should inclose, as he might certainly do, his ownsection. Could the government, under its police power, require them to pull down their inclosures, that *299some one else, or even the great body oí the people, might have access to an adjacent territory? It most certainly could not. Each separate owner would be entitled, by every principle of justice, to perfect security in the enjoyment of his property, and of every use to which it could lawfully be applied. And yet, when each separate section is thus inclosed by the labor and for the betteruse of each individual freeholder, it is plainly to be seen, by a glance at the diagram, that the public sections would be as completely environed, .as effectually severed from each other, and as unapproachable, as they will be should defendant complete the erection of the fence on the line proposed. Itseems tobeconceded bycoun-sel for the government that the defendant would have the unquestioned right to completely inclose each one of its several sections, — that is, it might, without offense either to the statute or to common law, erect its fences along the four sides of the square; and yet, inconsistently enough, the proposition is advanced that the maintenance of a fence along one or two sides of the square is offensive to the law. In other words, a complete inclosure is not a nuisance, but a half inclosure is a nuisance. The contention of the government in this case, when carried to its logical sequence, not only runs into this absurdity, but leads to an absolute prohibition to the owners of the odd sections in a township to protect them by fences, lest the public have ■difficulty in getting to even-numbered in the same township. But suppose therelief sought by the government is obtained, vU at then will be the status of the parties? ■The fence already built is destroyed. An injunction forbids the completion of that which is proposed; and the whole country, in a physical sense, is thrown open. But is it in a legal sense thrown open to public travel? Is it the law or the fence which secures to the owner of property its exclusive enjoyment? The fence is made for beasts; the law is made for man. Though my field shall have never a rail upon it, yet my neighbor dare not make it his pathway without my consent. He cannot use my land any more than he can my horse. He •cannot tramp my grass any more than he ■can cut my trees. The fence destroyed, what greater facility of access to the retained sections will the public then have than if the fence had remained? In the •former case a physical obstacle would be out of the way, but a legal obstacle would remain. The former may be stepped over; the latter presents an impassable barrier. This physical object is on defendant’s land. Remove it, and the land still remains. Who shall go upon it without the owner’s consent? Shall the government abase its sovereignty, and descend to the plane of the trespasser? When reduced to its last and its true legal analysis, the point in controversy is, shall the United States have a way over defendant’s land ? It is this, or it is nothing. Unquestionably the way may be obtained, but not by invoking the police power of the government. It must be bought and paid for in the manner and according to the methods prescribed for the condemnation of lands. Moreover, the line of pathway must be described and the transit of the public limited to the line. Surely no civilized government, even though it could through its police power obtain a public way, would ruthlessly destroy more fencing or commit greater injury than public exigency required. Surely it would not expose a vast domain to indiscriminate encroachment, and invite the public to a transit on whatsoever lines it willed; and yet, as I understand this record, this, though not avowedly, is practically, the end sought to be attained. It is needless to reaffirm, either in form or substance, that historical truth which has so often and so impressively been declared, by both the bench and the bar, that, excepting one notable instance, no government which rests on the basis of fixed laws, whatever its form, or wherever its sovereignty may reside, has ever asserted the right or lawfully exercised the power to appropriate private property to public use without compensation. I am therefore of the opinion that the act of Eebruary, 1885, in so far as it authorizes the destruction of defendant’s fence, located as it is, is unconstitutional and void; wherefore, the chief justice dissenting, and Justice Coen concurring for reasons other than those appearing in this separate opinion, the judgment of the district court is affirmed.