74 NATIONAL FOREST MANUAL LAWS. 



This court will, so far as it can, decide cases before it without 

 ence to questions arising under the Federal Constitution. (Silcr 

 Louisville & Nash. K. K.. L'l.'i U. 8., 175.) 



[Shannon v. United States (C. C. A. Ninth Circuit), 100 Fed., 870.] 



Where defendant drove large bands of cattle into a 320-acre ^ 

 which was inclosed on three sides, but open on the side toward a'publ 

 forest reserve, knowing that there was no water in the pasture, and t h 

 it was insufficient to sustain the cattle, and that they must of neces- 

 sity drift onto the reserve for pasture and water, defendant could not 

 claim freedom from responsibility for the cattle trespassing on the 

 reserve because he at no time drove them there and because the reserve 

 was not inclosed. 



The creation of a forest reserve severs the reserved land from the 

 public domain and appropriates it to public use, so that it is no longer 

 subject to the implied license to pasture on public lands. 



The rules promulgated by the Secretary of the Interior regulating 

 the number of cattle and other live stock that may be pastured on a 

 forest reserve, and the manner in which the owners may obtain permis- 

 sion to use the reservation for that purpose, are reasonable and within the 

 powergranted by act of Congress of June 4, 1897, chapter 2 (30 Stat., 34 

 U. S. Comp. St. 1901, p. 1542), giving the Secretary of the Interior power 

 to make rules and regulations and establish such service as will insure 

 the objects of such reservations, namely, to regulate their occupancy 

 and use and to preserve the forests from destruction. 



The Federal Constitution delegates to Congress the general power, 

 absolutely and without limitation, to dispose of and make all needful 

 rules and regulations concerning the public domain independent of the 

 locality of the land, whether situated in a State or Territory, the exer- 

 cise of which power can not be restricted in any degree by State legis- 

 lation. 



Congress had no power to relinquish any of its jurisdiction over the 

 public domain by a compact with the state of Montana on admission 

 of the State into the Union, nor had the State any power to reserve any 

 such control. 



Public lands in the State of Montana were not subject to the stock 

 and fence laws of the State, which were applicable only to lands sub- 

 ject to the State's dominion. 



Where the United States brought suit to restrain the trespass of defend- 

 ant's cattle on a forest reserve, the fact that in such suit it acted in its 

 proprietary capacity and was subject to the ordinary rules of pleading, 

 practice, and laws applicable to the case did not operate as a waiver 

 of any of its sovereign rights to the land sought to be protected. 



It was no defense to an injunction restraining defendant's use of a 

 United States forest reserve as a pasture that its issuance would impose 

 a grievous burden on him to restrain the cattle in his adjoining close, 

 it also appearing that he could relieve himself of such burden by restor- 

 ing a fence on one side thereof. 



Substantially to the same effect as the foregoing was the earlier de- 

 cision in Dastervignes v. United States, by the Circuit Court of Appeals 

 for the Ninth Circuit (122 Fed., 30). The two following paragraphs of 

 the syllabus of that case are of additional interest: 



A bill filed by the United States to enjoin the pasturage of sheep in 

 a forest reservation, in violation of the regulations prescribed by the 

 Secretary of the Interior, alleged that the sheep pastured within the 

 reservation were committing great and irreparable injury to the public 

 lands therein and to the undergrowth, timber, and water supply. Affi- 

 davits filed in support of such allegations recited that the sheep of 

 defendants destroyed undergrowth, young and growing trees and seed- 

 lings, and ate and destroyed the roots of the vegetation and grasses, 

 leaving the ground bare and subject to disastrous washings by the rains, 

 to the irreparable injury of the reservation, Held, that such allegation 

 and showing constituted a sufficient ground for the granting of a prelimi- 

 nary injunction. 



A bill by the United States against a number of defendants, to enjoin 

 them from pasturing sheep in a forest reservation, is not subject to the 



