(dissenting’.) There are three things forbidden by this act of congress : The first is the inelosure of public lands, to any of which lands the person making the inclosure had no claim or color of title at the time of the erection of such inclosure. The second is the assertion of a right to the exclusive use and occupancy of public land to which the person making the assertion has no claim or color of title. The third is the obstruction to or the pre*301vention of the settlement of public land by means of a fence, threats, intimidation, or by any fencing or inclosing, or any other unlawful means. In this case the defendant in error has inclosed with a fence or a number of fences, erected so as to join within about six inches, tracts of land amounting to 81,440 acres, of which 38,720 acres unquestionably belong to the United States, and to which defendant in error admits that it has no claim or color of title. It has therefore inclosed public land, to some of which it has no claim or color of title. So far such inclosure is plainly in violation of the statute. But the fence which constitutes the inclosure is built upon land belonging to defendant. “ Therefore, ’ ’ it says, “you can neither remove such fence, nor forbid the erection of similar ones in similar cases.” I amnot prepared to say that congress could in every case arbitrarily forbid the inclosing of lands, even when such inclosure necessarily includes public land to which the person erecting the inclosure has no claim or color of title, but if the inclosure is for any reason unlawful in itself, aside from the fact of merely inclosing such lands, then unquestionably this portion of the statute would be operative. If property is used for an unlawful purpose, then the sov-ereignpower has the inherent right to abate such use, and it is well settled that such an abatement is no infringement upon what is commonly called the “private right of property. ” See the case of Rideout v. Knox, 148 Mass. 368, 19 N. E. Rep. 390. In that case it is held that “ a statute making a private nuisance of any fence unnecessarily exceeding six feet in height, maintained for the purpose of annoying owners of adjoining property, is within the limits of the police power, and is constitutional in respect to fences erected before or after its passage.” I take it that the unauthorized use of public property is per se unlawful. Such use, at the common law, as would amount to trespass in matters between individuals when public realty was seized, became the subject of an information for intrusion, (3 Washb. Real Prop. 191,) and indeed was not the subject of an action, either in trespass to try the title toland or in ejectment? It has been the policy of the United States government impliedly to consent to the use of all of its public lands by the public in common. Congress has seen fit in the act in question to revoke such consent in case a person attempts to exercise an exclusive use of such land. There can be no doubt of its power to do so. The person, then, who exercises an exclusive use of any public land to which he has no claim or color of title, is necessarily engaged in an unlawful act, and any instrumentalities by which he asserts such right are also unlawful, and proper subjects of abatement. Eor this reason I am satisfied that it is a proper exercise of the legislative function to forbid the assertion (and by that is meant a substantial or material assertion) of a right to the exclusive use and occupancy of public land, to any of which the person making the assertion has no claim or color of title. There are numberless ways in which such an assertion might be made. If A. were to station armed men around a section of land, and forbid any one to go upon it, such act would unquestionably be an assertion of a right to the exclusive use and occupancy of such land, and just as unquestionably would it beunlawful initself. So, if he erects a fence or barrier to the free ingress and egress of the persons entitled thereto, it would be such an assertion. The presumption conclusively arising from such acts would be that the person doing them does them forthepurpose of using such land himself, for his own purposes, and as .this was always andisnowunlawful, the courts would properly be called upon to interfere. In my view, the facts in this case admitted lead irresistibly to a similar conclusion. It is undeniable and admitted that defendant has erected a fence which incloses a large amount of government land to which it has no claim or color of title. A large number of government sections are inside the fence, and only separated from it by about six inches; the fence being immediately between the governmentland and the uninclosed land outside. In the neighborhood of 10,000 acres are in this condition. There can be no question of any incidental use as to these sections. If the defendant did not care to inclose the sections upon which it put its fence, and which was excluded from the inclosure, then unquestionably the fence upon that section was not only not necessary for the inclosing of its own land, but could serve no legitimate purpose, except to inclose the government land. An examination of the diagram will tend to make this matter plainer. To illustrate more clearly: If A. were to obtain permission from the owner or owners of, say, sections 1, 3,11, and 35 to erect a fence upon the sides of those sections, adjoining section 2, he could inclose section 2, belonging to the government, without any of the fence being upon such section, and without *303any other land being in the inclosure. I apprehend it could not be contended that such an act upon his part would be lawful. The assertion of dominion over section 2, with just as little right, would be precisely the same as if the fence were all erected upon section 2. What is done in this case is equally indefensible. The odd-numbered sections in the diagram belong to the defendant; the even-numbered ones to the United States. A glance at the diagram will disclose that these sections,in their relations to one another, are as the squares in a checker-board. No two odd-numbered sections can be used together without also using the government sections. That this is so is not only apparent, but defendant admits it. If such two sections could be used together, they could be fenced together; and if they could be fenced together, they could be fenced with a continuous fence. This, defendant has not attempted to do, but leaves a space of about six inches between the different panels of fence where the section corners are, which space is sufficient to technically break the continuity of the fence, and yet not suf-ficientto preventthe land inside the numerous fences from being inclosed. The most' charitable construction, therefore, which can be given these fences as they appear in the diagram, is that defendant,' being possessed of these sections of land, has endeavored to use them all as one tract of land. In order to do so, however, he must also use their complement, the even-numbered or government sections, and in order to protect such use from interference it erects this fence. Wh at stronger or greater assertion of the right to use the government land exclusively could there be than its inclosure by a fence with the obvious intention of using it ?
NOTE. Public Lands — Unlatoul Inclosukes. One who incloses public land by a fence built entirely on his own land is guilty of a violation of 23 U. S. St. at Large, p. 321, forbidding the inclosure of public land. U. S. v. Buford, (Utah,) 80 Pac. Rep. 433. But such act does not apply to land granted by the organic act of Utah for school purposes after survey had been made. U. ¡S. v. Elliott, (Utah,) 86 Pac. Rep. 1117.*303It is argued that, if defendant cannot fence in this way, it will deprive it of the use of its property, since fencing each section separately is impracticable. Whatever question there may be about the advantage of fencing at all, there are two reasons why this point can have no force. The first is that when defendant bought these lands it took them with notice of their geographical position, and acquired no right of any kind in and to the government land it has inclosed; and the other, that, whatever maybe the consequences of a decision, they can in no way affect the principles of law governing the case. It was also argued that, because it is impracticable to fence each section, if defendant cannot fence in this way, then it is deprived of its property without either compensation or due process of law. Such argument has no force, if, as I view it, such fencing is erected in the pursuance of an unlawful purpose, viz., the unauthorized use of public land. The United States supreme court in the case of Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. Rep. 273, says: “The destruction, in the exercise of the police power of the state, of property used in violation of law, in maintaining a public nuisance, is not a taking of property for public use, and does not deprive the owner of it without due process of law.” But the mere act of fencing its own land is not denied to defendant by this statute. It isnot the fencing which violates thelaw; it is the assertion by means of the fence of a right to the exclusive use of government land that is forbidden. In no sense, then, can it be said that it is deprived of the use of its property for any lawful use. “Any proper exercise of governmental power which does not directly encroach upon the property of an individual, or disturb him in its possession or enjoyment, will not entitle him to compensation, or give him a right of action.” Commissioners v. Armstrong, 45 N. Y. 245; Gould v. Railroad Co., 6 N. Y. 522.
It was suggested upon the argument that gates had been left at certain points in this inclosure for the convenience of any person desiring to settle upon the government land. This suggestion was presumably made as a disclaimer of any intention to assert a right to the exclusive use of such land. It appears to me it would be an equally reasonable thing for a person to erect a fence across a highway, leaving a gate in the middle, and then posting a placard disclaiming anyintention of obstructing the highway. His disclaimer would certainly not avail him, in view of the obvious and material fact that his fence did obstruct the highway. In my opinion, therefore, the statute is not unconstitutional, (even though somefeatures of itmay be,) since it is perfectly apparent that it is within the province of congress to make an assertion of a right to public property unlawful; and I further believe there can be no doubt but that defendant in this case has asserted a right such as is forbidden. For these reasons I must dissent from the opinion of the court.
Defendant may be compelled to remove obstructions erected on his own lands, on lands of the state, and on lands in which he is interested as partner or cotenant, where the other persons interested with him are not within the jurisdiction of the court, without making the latter persons parties to the action, but all persons interested in the lands who are within the court’s jurisdiction, and all who own parts of the land in severa2ty, should be made parties. State v. Goodnight, (Tex, Sup.) 11 S. W. Rep. 119. Defendant inclosed and occupied land on a section within the limits of a grant to a railroad, after the land had been withdrawn from sale or entry, relying on the railroad company’s promise to sell the land to him as soon as it should perfect its title thereto. The railroad had not been completed when the entry was made, and the grant had not been declared forfeited. Meld, that his was not an unlawful occupancy under 33 U. S. St. p. 331. U. S. v. Osborn, 44 Ped. Rep. ■29. Lands granted by a railroad, to which the grantee has been unable to get title, the township not being surveyed, are not within Act Cong. Feb. 25, 1885, prohibiting the fencing of “public lands of the United States, ” without color of title. U. S. v. Godwin, (Mont.) 16 Pac. Rep. 850. Defendant, as licensee of the Southern Pacific Railroad Company, had inclosed certain lands of the land grant of the company. The lands had, ■on filing of the plat of the proposed road by the company, been withdrawn from settlement by the United States, though they had not been ■earned by the company. Held, that such inclo,sure of lands did not fall within those prohibited-by the act of congress. U. S. v. Brandestein, 33 Ped. Rep. 738. Defendant fenced in 160 acres of unsnrveyed public lands, and filed a notice-of declaration as a settler on the public domain in the office of the recorder of the county in which such lands were situate, with the view of entering them in the proper land office as soon as it could legally receive filing thereon. The act of February 25, 1885, making inclosures of public lands, without color of title, unlawful, excepts lands inclosed unuer an “asserted right thereto by or under claim made in good faith, with a view to the entry thereof at the proper land office. ” Held, that the inclosure was lawful. U. S. v. Godwin, (Mont.) 16 Pac. Rep, 850. Actions. An action for inclosing public land is one aris • ing under the laws of the United States, within the jurisdiction of a territorial district court sitting to hear causes arising under the constitution and laws of the United States. U. S. v. Bisel, (Mont.j 19 Pac. Rep. 251, followed. U. S. v. Flaherty, Id. 553. The act confers jurisdiction of suits brought thereunder upon the United States district or circuit court, or the territorial district court, having jurisdiction of the locality where the land is situated, to restrain violations of the act, and to compel the removal of the inclosures. U. S. v. Bisel, (Mont.) 19 Pac. Rep. 251, followed. U. S. v. Flaherty, Id. 553. The Montana practice act, which provides for but one form of action, applies to the territorial courts, when sitting to hear causes under the federal laws, as well as when sitting as territorial courts; and a complaint praying for the removal of an inclosure of public laud erected In violation of the act of congress, and for an injunction to restrain the defendant from again erecting it, is not improper. U. S. v. Bisel, (Mont.) 19 Pac. Rep. 251, followed. U. S. v. Flaherty, Id. 553. Indictment. An indictment for fencing public lands in violation of 23 St. U. S. p. 322, § 3, need not allege that defendant had not gone upon, improved, or occupied said lands under the land laws of the United States, claiming title thereto, in good faith, that being a matter of defense. U. S. v. Cook, 36 Fed. Rep. 896. An indictment under such act for unlawfully inclosing a portion of the public lands must show that the defendant is not within any of the exceptions permitting such inclosure. U. S. v. Felderward, 36 Fed. Rep. 490. School Lands. Sections 16 and 36 of each township in Montana, though by Rev. St. U. S. § 1946, reserved from the public domain, and set apart for school purposes, form part of the public lands, within 23 U. S St. at Large, 321. TJ. S. v. Bisel, (Mont.) 19 Pac. Rep. 251; Same v. Flaherty, Id. 553. Act Cong. 1853, setting aside sections 16 and 36 of each township in Washington Territoiy for school purposes, does not sever such sections from the public domain, nor destroy their character as public lands. Barkley v. U. S., (Wash. T.) 19 Pac. Rep. 36. Public Lands — Cutting Timbee on. One who enters upon public land in good faith for the purpose, ot securing title by pre-emption, or of claiming a homestead therein, may out so much timber standing on the land as is necessary for cultivation, and the timber so cub he may dispose of to the best advantage possible; but he cannot go outside of his improvements to cit and sell timber, though he intend to acquire title under his claim. The Timber Cases, 11 Fed. Rep. 81; U. S. v. Lane, 19 Fed. Rep. 910; U. S. v. Williams, 18 Fed. Rep. 475. See, also, U. S. v. Smith, 11 Fed. Rep. 487. But where a settler is acting in good faith he may, for the purpose of improvement, cut timber even before he files his entry in the land office. U. S. v. Yoder, 18 Fed. Rep. 372. And where a settler on public lands has removed timber for other than the purpose of tillage, a subsequent issuance of the certificate of the register and receiver of the land office to such settler, stating that he has complied with the law in making settlement will relieve him from liability for such wrongful cutting. U. S. v. Ball, 31 Fed. Rep. 667. So a settler, who, pending an action for the recovery of the value of timber which he has wrongfully cut and sold to defendants, becomes entitled to the issuance of the patent to the land by the payment of the purchase money in full, thereby defeats the right of the plaintiff to recover, such action ■of the settler in securing an equitable title being held to relate back to the original entry. U. S. v. Stores, 14 Red. Rep. 824. In trover for timber alleged to have been cut on the public land, where-a pre-emptor has paid for the land, the presumption is that final proof has been .made, and that the final certificate has been issued, vesting him with the equitable title and leaving only the naked legal title in the United States, and precluding the latter from maintaining an action under Comp. Laws N. M. § 1882, requiring every action to be prosecuted in the name of the real party in interest. U. S. v. Saucier, (N. M.) 2S Pac. Rep. 791. While holding land under a homestead entry, the homesteader can only out and sell the timber from such portion or parts of the land as are being cleared for cultivation or settlement. U. S. v. Murphy, 32 Red. Rep. 376: Same v. Mann, Id. 386. Possession by a homestead claimant, and a receiver’s receipt issued since bringing the action, do not divest the government of possession or title so that it cannot bring trespass for cutting timber on the land. U. S. v. Taylor, 35 Red. Rep. 484. In an action to recover penalties for cutting timber on public land, there being evidence that defendant said he owned the land, and that he was cutting timber there, and that the trees were cut on that lot, it is proper to submit the question to the jury whether 'defendant cut the timber himself, or whether one cutting on adjacent lands by his authority had, without his sanction, cut the timber in question. People v. Turner, (Sup.) 2 N. Y. Snpp. 253. A right of action by the United States for cutting timber less than eight inches in diameter, on public mineral lands, in violation of the regulation of the secretary of the interior, prescribed under the act of congress of June 3, 1878, which permits timber to he cut on such lands under such regulations as the secretary of the interior may make, does not fail by the subsequent repeal of the regulation, especially as Rev. St. U. S. § 13, provides that the repeal of a statute shall not release any liability incurred under it, unless the repealing act so provides. U. S. v. Williams, (Mont.) 19 Pac. Rep. 288. A citizen of the United States and resident of Montana territory may lawfully cut and remove timber from the public mineral lands for buildings, agricultural, mining, or other domestic purposes. U. S. v. Lynde, 47 Red. Rep. 297. Act Cong. § 2, (13 St. U. S. 365,) granting to the Northern Pacific Railroad Company “the right, power, and authority * * * to take, from the public lands adjacent to the line of said road, material of earth, stone, timber, etc., for construction thereof,” was not intended to apply only to public lands contiguous to or adjoining the line of the road, but may extend to other lands. U. S. v. Lynde, 47 Red. Rep. 297. Timber taken from lands adjacent to the line of the railroad may he used for construction npon any part of it. U. S. v. Lynde, 47 Red. Rep. 297. In an action by the United States against an executor for the value of timber cut from public land and sold by the trespasser to defendant’s testator, a verdict finding that the trespasser cut the logs, and that defendant got them, without finding that the logs were cut from the land described in the petition, or from government land, or that they ever came into the possession of defendant’s testator, is insufficient to sustain a judgment against defendant. Norris v. U. S., 44 Red. Rep. 739. Where, in an action by the United States to recover the value of logs cut on public land, the plaintiff's evidence shows that the defendant purchased from the trespasser and converted to his own use a large number of logs, amoug which were some of those cut from the public land, the burden is on the defendant to show that all the logs so bought by him were not so cut. Norris v. U. S., 44 Red. Rep. 735. Measure of Damages. In case a trespass upon public lands consisting in the wrongful cutting of timber thereon is inadvertent, the measure of damages is the value of the timber in the trees; but in case the trespass is willful, the measure of damages is the value of the property at the time the action is brought, with no deduction for the labor put forth and the expense incurred by the trespasser. U. S. v. Williams, 18 Red. Rep. 475. And an innocent purchaser from a willful trespasser is liable for the full value of the timber at the time of the purchase. U. S. v. Heilner, 26 Red. Rep. 80. Where a homesteader, who has never had possession of the land included in his homestead claim, and whose entry has been canceled, buys the land from the government, such purchase does not pass title to timber which he had cut from the land before its purchase, and after he had learifed that his homestead entry was invalid. U. S. v. Perkins, 44 Red. Rep. 670. In an action by the United States for the value of timber bought by defendant from a trespasser who had knowingly cut it from the public land, the measure of damages is the value of the timber at the time of the purchase. U. S. v. Perkins, 44 Red. Rep. 670. In an action of trespass by the United States for catting timber on government land the burden of showing that the timber was cut by mistake, with a view of mitigating the damages, is npon the defendants; and, in the absence of evidence to that effect, there is no error in permitting the government to recover the value of the saw-logs when already brought to the water. U. S. v. Baxter, 46 Fed. Rep. 350. Criminal Prosecution. A criminal prosecution may be maintained for a violation oí Rev. St. § 2461, making it unlawful to cut or wantonly destroy any timber on any lands of the United States reserved or purchased for use in supplying timber for the navy; or to remove such timber from such lands; or to cut or remove any timber from any other lands of the United States, with intent to export, dispose of, or use the same for any other purpose than the use of the navy; and providing fine and imprisonment as the penalty for a violation of the section. U. S. v. Stone, 49 Fed. Hep. 848. It is no defense to a prosecution for unlawful cutting of timber from public land that there was no criminal intent in the cutting. U. S. v. Murphy, S3 Fed. Rep. 876; Same v. Mann, Id. 386. See, also, U. S. v. Ball, 31 Fed. Rep. 667, 670; U. S. v. Freyberg, 33 Fed. Rep. 195. A party prosecuted for cutting timber on the public lands under Rev. St. U. S. § 3461, is only relieved from the criminal prosecution and liabilities provided for in said section by payment of $3.50 per acre for the land on which it is cut, in pursuance of the provisions of the act of congress of 1878, (1 Supp. Rev. St. p. 339, § 5.) He is not relieved from his civil common-law liability to the United States as owner of the land for the value of the timber cut. U. S. v. Scott, 39 Fed. Rep. 900. Cutting Timbee on Indian Reservations. Rev. St. U. S. § 5388, as amended June 4, 1888, which forbids the cutting or wanton destruction of timber upon military or Indian reservations, does not apply to one who removes and uses for building purposes timber which has been cut on an Indian reservation by another person without his aid or encouragement. U. S. v. Eonkapot, 43 Fed. Rep. 64. Rev. St. U. S. § 3461, which forbids the cutting of timber growing on land of the United States which has been reserved or purchased for supplying timber for the navy, and the cutting or removal of timber from any other land of the United States with intent to export or dispose of the same otherwise than for the use of the navy, does not apply to Indian reservations in Wisconsin. U. S. v. Eonkapot, 43 Fed. Rep. 64. Boxing Pine. Boxing pine trees for turpentine, by which the trees are not felled nor severed from the soil, is not a cutting of timber with intent to dispose of the same in a manner other than for the use of the navy, within the meaning of Rev. St. U. S. § 3461, where the trees so boxed are not upon public lands reserved for supplying timber for the navy, and where there is no intent to export, dispose of, or use the trees or' timber. Leatherbury v. U. S., 32 Fed. Rep. 780. The last clause of section 2461, Rev. St. U. S., forbids the cutting or removal of timber from lands open to private entry with the intent to use it for any other than United States naval pur poses. Held, that an information for unlawfully cutting timber must allege such intent. U. S. v. Garretson, 42 Fed. Rep. 33. Rev. St. U. S. | 5388, making the wanton destruction of timber on lands reserved for public uses a crime, does not cover turpentine boxing or wanton destruction of timber on lands open for pre-emption, homestead, and cash entries. U. S. v. Garretson, 42 Fed. Rep. 22.