(dissenting). The agreed statement makes it plain that the purpose and effect of the fences immediately about section 22 and the north half of section 8 arc to exclude those lands from the appellants' iuclosure and from the use made of it by them. In other words, those lands, instead of being within, are without, that inclosure and are in the same situation as if the appellants, with the purpose of inclosing and using only their own land, had made a separate iuclosure of each of their sections and lesser tracts. The' appellants undoubtedly have the right to make one or many inclosures of their own land, so long as they do not include therein other land; and this regardless of any incidental effect which their inclosures may have upon public land not included therein. The purpose of the statute relied upon is not to abridge the usual rights of individual proprietors, but only to protect public land against unwarrantable appropriation and to preserve to the public at large their rights therein. This, as it seems to me, is fully recognized in Camfield v. United States, 167 U. S. 518, 17 Sup. Ct. 864, 42 L. Ed. 260. There an individual proprietor of alternate odd numbered sections surrounded those sections and also the intervening even numbered sec-lions of the government by a fence, the obvious purpose and effect of which were to embrace both classes of sections in a single inclosure and to appropriate the even numbered sections of the government to the same use which he-made of his odd numbered sections. Of this it was said by Mr. Justice Brown, speaking for the court:
“It is no answer to say that, If sueli odd numbered sections were separately fenced in, which the owner would doubtless have the right to do, the result would he the same as in this case, to practically exclude the government from ¡lie even numbered sections, since this was a contingency which the government was hound to contení]date in granting away the odd numbered sections, .so long as the individual proprietor coniines Ills inclosure tó his own land, the government has no right to complain, since he is entitled to the complete and exclusive enjoyment of it, regardless of any detriment, to his neighbor; but when, under the guise of inclosing his own land, he builds a fence which *748is useless for that purpose, and can only have been intended to inclose the lands of the government, he is plainly within tb$ statute and is guilty of an unwarrantable appropriation of that which belongs to the public at large.”
In principle, Potts v. United States, 51 C. C. A. 678, 114 Fed. 52, is to the same effect.
I conclude that as to section 22 and the north half of section 8 thq appellants do not violate the statute, and that their inclosure is' unlawful only because it includes the west half of the west half of section 14, which is public land.