Our former decision in this case is reported in 201 Fed. 281, 119 C. C. A. 519. A rehearing was granted, and after its reargument, and a very careful reconsideration of the record, we are convinced that in two respects indicated in the former opinion the court was in error — one as to a matter of fact and the other of law. In regard to the latter, it was said in the opinion — following the decision of the Circuit Court of Appeals of the Eighth Circuit in the case of Homer v. United States, 185 Fed. 741, 108 C. C. A. 79 — that the question of intent with which the fencing was done could not be considered by the court. A reconsideration of that question satisfies us that this court had held the reverse in the cases of Potts v. United States, 114 Fed. 52, 51 C. C. A. 678, and Hanley v. United States, 186 Fed. 711, 108 C. C. A. 581, and that the Supreme Court so held in the case of Camfield v. United States, 167 U. S. 528, 17 Sup. Ct. 864, 42 L. Ed. 260. In the opinion in the case of Homer v. United States, supra,' from which Judge Van Devanter, now a Justice of the Supreme Court, dissented, the court said:
“The Camfield Case was heard on an exception to defendant’s answer to the effect that said answer did not state facts sufficient to constitute a defense to the bill. The answer sought to justify the erection of the fence in that cáse on the ground that defendants owned all the odd-numbered sections upon which the fence was built, and that they were engaged in building large reservoirs for the purpose of irrigating the land by them owned. They also denied that they had any intention of monopolizing the even-numbered sections or to exclude the public therefrom. With these allegations in the answer, this court affirmed the judgment of the Circuit’Court abating the fence, and the Supreme Court, in affirming the judgment of this court, necessarily decided that building a fence on one’s own land without an intention of inclosing lands of the United States was no defense, if in fact the lands mentioned were actually inclosed.”
Turning to the case of Camfield v. United States, 167 U. S. 518, 17 Sup. Ct. 864, 42 L. Ed. 260, it is seen that the bill averred in substance that the defendants, with intent to encroach and intrude upon the lands of the United States in an illegal manner, and to monopolize the use of the same for their own special benefit, did, on'or about the 1st of January, 1893, construct and maintain a fence which inclosed and in-*905eluded about 20,000 acres of the public domain; that the effect of such inclosure was to exclude the United States and all other persons except the defendants therefrom; and that the lands thus wrongfully inclosed consisted of all of the even-numbered sections in townships numbered 7 and 8 north of range 63 west of the sixth principal meridian. The bill further averred that said townships 7 and 8 lie within the limits of the grant made by the government to the Union Pacific Railroad Company; that the defendants had acquired from that railroad company the right to use all the odd-numbered sections of land which lie within the said townships 7 and 8 and outside thereof, immediately adjacent to the even-numbered sections lying within and on the margin of said townships, and that in building the fence complained of the defendants had constructed it entirely on the odd-numbered sections, either within or without townships 7 and 8, so as to completely inclose all of the government lands aforesaid, but without locating the fence on any part of the public domain so included. The defendants by the answer admitted that they had constructed a fence so as to inclose all of the even-numbered sections in townships 7 and 8 substantially as set out in the bill, save and except that at each section line a swinging gate had been placed to afford access to so much of the public domain as was inclosed by the aforesaid fence, and by their answer sought, among other things, to justify the erection of the fence in question upon the ground that they owned all the odd-numbered sections in townships 7 and 8, and they denied that they had any intention of monopolizing the even-numbered sections inclosed by said fence, or to exclude the public therefrom.
An exception to the answer upon the ground that it was insufficient to constitute a defense to the bill was sustained by both the trial and the Supreme Court. The latter, after setting out the provisions of the statute of February 25, 1885, entitled “An act to prevent unlawful occupancy of the public lands,” 23 Stat. 321, the construction and application of which were involved, said:
“Defendants are certainly within the letter of this statute. They did inclose public lands of the United States to the amount of 20,000 acres, and there is nothing tending to show that they had any claim or color of title to the same, or any asserted right thereto under a claim made in good faith under the general laws'of the United States. The defense, is in substance that, if the act be construed so as to apply to fences upon private property, it is unconstitutional.”
And, after referring to the general proposition that a man may do what he will with his own, and pointing out that that right will not justify him in maintaining a nuisance, or in carrying on a business or trade that is offensive to his neighbors, proceeded as follows:
“While the lands in 'question are all within the state of Colorado, the government has, with respect to its own lands, the rights of an ordinary proprietor, to maintain its possession and to prosecute trespassers. It may deal with such lands precisely as a private individual may deal with his farming property. * * * It needs no argument to show that the building of fences upon public lands with intent to inclose them for private use would be a mere trespass, and that such fences might be abated by the officers of the government or by the ordinary processes of courts of justice. To this extent no legislation was necessary to vindicate the rights of the government as a landed proprietor. But the evil of permitting persons, who owned or con*906trolled the alternate sections, to inclose the entire tract, and thus to exclude or frighten off intending settlers, finally became so great that Congress passed the act of February 25, 1885, forbidding all inclosures of public lands, and authorizing the abatement of the fences. If the act be construed as applying only to fences actually erected upon public lands, it was manifestly unnecessary, since the government as an ordinary proprietor would have the right to prosecute for such a trespass. It is only by treating it as prohibiting all ‘inclosures’ of public lands, by whatever means, that the act becomes of any avail. The device to which defendants resorted was certainly an ingenious one, but it is too clearly an evasion to permit our regard for the private rights of defendants as landed proprietors to stand in the way of an enforcement of the statute. So far as the fences were erected near the outside line of the odd-numbered sections, there can be no objection to them; but so far as they were erected immediately outside the even-numbered sections, they are manifestly intended to inclose the government’s lands, though in fact erected a few inches inside . the defendants’ line. Considering the obvious purpose of this structure, and the necessities of preventing the inclosure of public lands, we think the fence is clearly a nuisance, and that it is within the constitutional power of Congress to order its abatement, notwithstanding such action may involve an entry upon the lands of a private individual. • * * The government has the same right to insist upon its proprietorship of the even-numbered sections that an individual has to' claim the odd sections, and if such proprietor would have the right to' complain of the government fencing in his lands in the manner indicated and leasing, them for pasturage, the government has the- same right to complain of a similar action upon his part. * * * These grants were made in pursuance of the settled policy of the
government to reserve to itself the even-numbered sections for sale at an increased price; and if the defendants in this ease chose to assume the risk of purchasing the odd-numbered sections of the railroad company for pasturage purposes, without also purchasing or obtaining the consent of the government to use the even-numbered sections, and thereby failed to derive a benefit from the odd-numbered ones, they must call upon their own indiscretion to answer for their mistake. The law and the practice of the government were perfectly well settled, and if it had chosen in the past to permit by tacit acquiescence the pasturage of its public lands, it was a policy which it might change at any moment, and which became the subject of such abuses that Congress finally felt itself compelled to pass the act of February 25, 1885, and thereby put an end to them. It was not intended, however, to prohibit altogether the pasturage of public lands, or to reverse the former practice of the government in that particular. Indeed, we know of no reason why the policy, so long tolerated, of permitting the public lands to be pastured may not be still pursued, provided herdsmen be employed, or other means adopted by which the fencing in and the exclusive appropriation of such land shall be avoided. The defendants were bound to know that the sections they purchased of the railway company could only be used by them in subordination to the right of the government to dispose of the alternate sections as it seemed best, regardless of any inconvenience or loss to them, and were bound to avoid obstructing or embarrassing it in such disposition. If practices of this kind were tolerated, it would be but a step further to claim that the defendants, by-long acquiescence of the government in their appropriation of public lands, had acquired a title to them as against every one except the government, and perhaps even against the government itself. * * * So long as the individual proprietor confines his inclosures to 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 is useless for that purpose, and can only have been intended to inclose the lands of the government, he is plainly within the statute, and is guilty of an unwarrantable appropriation of that which belongs to the public at large.”
In deciding the Camfiéld Case, the Supreme Court manifestly, we think, took into consideration the intent with which the defendant to *907that action erected the fences there in question, for the court, after setting out specifically how and where they were erected, including a diagram thereof, said:
“The device to which defendants resorted was certainly an ingenious one, but it is too clearly an evasion to permit our regard for the private rights of defendants as landed proprietors to stand in the way of an enforcement of the statute. . So far as the fences were erected near the outside line of the odd-numbered sections, there can be no objection to them; but so far as they were erected immediately outside the even-numbered sections, they are manifestly intended to inclose the government’s lands, though, in fact, erected a few inches inside the defendants’ line. Considering the obvious purpose of this structure, and the necessities of preventing the inclosure of public lands, we think the fence is clearly a nuisance, and that it is within the constitutional power of Congress to order its abatement, notwithstanding such action may involve an entry upon the lands of a private individual.”
And the court concluded with the declaration that:
“So long as the individual proprietor confines his inclosure to 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 is useless for that purpose, and can only have been intended to inclose the lands of the government, he is plainly within the statute, and is guilty of an unwarrantable appropriation of that which belongs to the public at large.”
So in the case of Hanley v. United States, 186 Fed. 711, 108 C. C. A. 581, this court sustained an instruction given to the jury by the trial court, holding it to have stated the law fairly in respect to the point there referred to, which instruction is as follows:
“It is sufficient, within the intendment of the statute, that the inclosure comprising any of such public lands was designed and intended by the person or individual constructing or maifitaining the same to hinder or impede the ordinary ranging of stock, or its natural and free ingress from without, or egress from within, or is reasonably calculated in the manner of its construction or maintenance to accomplish a like result, or which serves to exclude or to hinder or impede other persons or the public from free and unrestrained access to and upon the lands so inclosed for the purposes for which any individual has the right of access to public lands. Nor is it essential that the person so constructing or maintaining the inclosure shall do so by fencing entirely his own, but he may accomplish the result by joining his fencing to that of others, so as to make the barrier complete, or he may conjoin his fence to natural barriers, such as ledges of rock, precipitous bluffs, steep declivities, or mountain ranges, or other natural obstructions, not readily passable, or which in their practical effect would impede or interrupt the ordinary ranging of stock, or which, together with the fencing, would prevent, obstruct, or impede in some measure the more natural and free passage of persons and individuals to and upon the public lands so inclosed. There is no controversy here as to the lands described in the indictment being a part of the public domain, and the defendant lays no claim to any of such lands, by entry or otherwise, with a view to their acquirement from the’general government ; so that these two elements of the offense charged may be taken as proven. The case, therefore, turns wholly upon the question whether the defendant maintained or controlled fences which, being joined onto the rim rock, constituted an inclosure as defined of such public lands. The government has described what fencing and rim rock or other natural barriers constitute the inclosure complained of, by setting forth the beginning and ending point, and the courses and distances thereof, and it is thereby confined in its proof to the establishment of such an inclosure as is alleged. * * * The intent or purpose with which fencing or an inclosure was constructed or maintained, if *908so constructed or maintained, may be gathered from all the testimony showing the local conditions and environment, the ownership or want of ownership of the lands affected by the inclosure, their occupancy, and the use of which they are susceptible. Men do not build fences, or construct or maintain inclosures, except for a purpose. That purpose is usually manifest. It is to control in some degree at least the use or the manner of use and occupancy of the lands or premises inclosed. Indeed, an inclosure is the assertion of a claim of some right or title to the premises inclosed, and it operates as a notice to others of such claim. Nor does it affect such assertion of claim and notice that gates and bars that may be opened and closed are provided at convenient intervals in such fencing. These áre primarily constructed for the use and convenience of the proprietor of the fencing, and usually- only for others and the public when placed upon private easements or public highways. So that ordinarily any person breaking the close, or going upon the lands and premises inclosed for occupancy, or taking his stock thereon for pasturage, would be accounted a trespasser, a violator of private rights, or even a wrongdoer in a criminal sense; and thus is demonstrated the deterrent effect the maintenance of an inclosure about public lands will have upon those desirous of entering thereon for any purpose.
“A person has a right, under the law, to erect fences wholly upon his own land, and to maintain them, if he so desires, and if incidentally such fences may obstruct or impede the ingress or egress of stock ranging upon the public lands, or the free passage of persons upon or over such lands, no one can complain, because a man has a right to do what he pleases with his own, so long as he does no willful injury to another. But he cannot make the construction of fencing upon his own lands a subterfuge for inclosing or preventing free passage upon the public lands. To make plain to you what I mean, I will allude to some of the facts as they appear in this case. The Harney Valley Development Company owns the narrow strip of land, consisting of 40-acre tracts, by legal subdivisions joining one upon another in continuous succession, running from Fish creek north 12% miles to the vicinity of the North fork of Little Krumbo creek, thence east about 2% miles, thence north 2% miles, and thence east 2 miles, more or less, to a junction with the rim rock at McCoy creek, and another strip of like character running from Blitzen river west about 7% miles to a little beyond the road to Roaring Springs. Upon these narrow strips of land has been constructed but a single line of fencing for their entire length, which, if conjoined upon the rim -rock described, with barriers constructed in the draws of the rim rock, serves, with other fencing upon the north, to inclose 80,000 acres of the public lands. The lands comprised by the narrow strips are in very large proportion practically valueless for any purpose, except for grazing. Now, if title to these strips of land was acquired and the fences were constructed thereon as a subterfuge or pretext, so that it could be said that the fences were constructed entirely upon private lands, the device could not avail the owner. The inclosure yet would be an inclosure of public lands within the inhibition of the statute. So a maintenance .of such fence is likewise inhibited by the statute.
“You are the judges of the purpose for which this fencing was constructed in the first place, whether to inclose public lands or not; and, if so, whether it was maintained by the defendant as alleged in the indictment; and, if so, for what purpose.”
And, as said by Judge Van Devanter in his dissenting opinion in Homer v. United States, supra, the case of Potts v. United States, 114 Fed. 52, 51 C. C. A. 678, decided by this court, is in principle to the, same effect.
The evidence in the present case shows, we think, that such fences as the appellant company built upon its own lands were not constructed with any intent to inclose any government land, or to exclude the public from entering upon the public domain, either for purposes of set*911tlement, grazing, or other uses, but were for the bona fide protection of its own lands, extensive portions of which it had planted to various agricultural crops in connection with its stock business; and such was, in effect, the finding of the trial court. While those fences were very extensive, amounting in the aggregate to about 40 miles in length, various openings'were left in them at points most frequently used by cattle and other animals in their passage to and from the grazing lands of the United States, and at points at which the public highways entered and left the appellants’ lands, which openings were nine in number, the widest of which was 3,400 feet in width, and the narrowest 90 feet; others being as much as 120 and 312 feet in width. Such openings, in view of the situation and condition of the lands of the government and of the cattle company as disclosed by the evidence, in our opinion admitted of reasonable access by the public to the public domain, for which reason the fences in question cannot be properly held to unlawfully inclose the lands of the United States.
*910
*911It results from the above views that the order appealed from must be and hereby is reversed.