THE GRAZING CASES DECIDED 



361 



range during the spring and summer, and 

 the ranch then used as a place on which 

 to raise hay for their sustenance. 



That between the ranch and the reser- 

 vation was other public and unoccupied 

 land of the United States; but, owing to the 

 fact that only a limited number of cattle 

 were allowed on the reservation, the graz- 

 ing there was better than on this public 

 land. For this reason, and because of the 

 superior water facilities and the tendency 

 of the cattle to follow the trails and stream 

 leading from the ranch to the reservation, 

 they naturally went direct to the reserva- 

 tion. The bill charged that the defendant 

 when turning them loose knew and ex- 

 pected that they would go upon the reser- 

 vation, and took no action to prevent them 

 from trespassing. That by thus knowingly 

 and wrongfully permitting them to enter on 

 the reservation he intentionally caused his 

 cattle to make a trespass, in breach of the 

 United States property and administrative 

 rights, and has openly and privately stated 

 his purpose to disregard the regulations, 

 and without permit to allow and, in the 

 manner stated, to cause his cattle to enter, 

 feed and graze thereon. 



The bill prayed for an injunction. The 

 defendant's general demurrer was over- 

 ruled. 



His answer denied that the topography 

 of the country around his ranch or the 

 water and grazing conditions were such as 

 cause his cattle to go on the reservation; 

 he denied that many of them did go there- 

 on, though admitting that some had grazed 

 on the reservation. He admitted that he 

 had liberated his cattle without having 

 secured or intending to apply for a permit, 

 but denied that he willfully or intentionally 

 caused them to go on the reservation, sub- 

 mitting that he was not required to ob- 

 tain any such permit. He admits that 

 it is his intention hereafter, as heretofore, 

 to turn his cattle out on the unreserved 

 public land of the United States adjoining 

 his ranch to the northeast thereof, without 

 securing or applying for any permit for the 

 cattle to graze upon the so-called Holy 

 Cross Reserve; denies that any damage 

 will be done if they do go upon the reserve; 

 and contends that, if because of their 

 straying proclivities, they shall go on the 

 reserve, the complainant is without remedy 

 against the defendant at law or in equity 

 so long as complainant fails to fence the 

 reserve as required by the laws of Colorado. 

 He claims the benefit of the Colorado stat- 

 ute requiring the owner of land to erect 

 and maintain a fence of given height and 

 strength, in default of which the owner 

 is not entitled to recover for damage oc- 

 casioned by cattle or other animals going 

 thereon. 



Evidence was taken, and after hearing, 

 the Circuit Court found for the Government 



and entered a decree enioining the defend- 

 ant from in any manner causing, or per- 

 mitting, his stock to go, stray upon or re- 

 main within the said forest or any portion 

 thereof. 



The defendant appealed and assigned 

 that the decree against him was erroneous; 

 that the public lands are held in trust for 

 the people of the several States, and the 

 proclamation creating the reserve without 

 the consent of the State of Colorado is 

 contrary to, and in violation of, said trust; 

 that the decree is void because it in effect 

 holds that the United States is exempt 

 from the municipal laws of the State of 

 Colorado relating to fences; that the stat- 

 ute conferring upon the said Secretary of 

 Agriculture the power to make rules and 

 regulations was an unconstitutional dele- 

 gation of authority to him and the rules 

 and regulations therefore void; and that 

 the rules mentioned in the bill are un- 

 reasonable, do not tend to insure the ob- 

 ject of forest reservation and constitute an 

 unconstitutional interference by the Gov- 

 ernment of the United States with fence 

 and other statutes of the State of Colorado, 

 enacted through the exercise of the police 

 power of the State 



Mr. Justice Lamar, after making the fore- 

 going statement, delivered the opinion of 

 the Court. 



The defendant was ■enjoined from pas- 

 turing his cattle on the Holy Cross Forest 

 Reserve, because he had refused to comply 

 with the regulations adopted by the Secre- 

 tary of Agriculture, under the authority 

 conferred by the act of June 4, 1S97 (30 

 Stat., 35), to make rules and regulations 

 as to the use. occupancy and preservation 

 of forests. The validity of the rule is 

 attacked on the ground tliat Congress could 

 not delegate to the Secretary legislative 

 power. We need not discuss that question 

 in view of the opinion in United States v. 

 Orimaud, just decided. 



The bill alleged, and there was evidence 

 to support the finding, that the defendant, 

 with the expectation and intention that 

 they would do so, turned his cattle out 

 at a time and place which made it certain 

 that they would leave the open public lands 

 and go at once to the Reserve, where there 

 was good water and fine pasturage. Wben 

 notified to remove the cattle, he declined 

 to do so and threatened to resist if they 

 should be driven off by a forest officer. 

 He justified this position on the ground 

 that the statute of Colorado provided that 

 a landowner could not recover damages for 

 trespass by animals unless the property 

 was enclosed with a fence of designated 

 size and material. Regardless of any con- 

 flict in the testimony, the defendant claims 

 that unless the Government put a fence 

 around the Reserve it had no remedy, 

 either at law or in equity, nor could he 



