266 THE USE BOOK. 



GILBERT, Circuit Judge, after stating the case as above, de- 

 livered the opinion of the court. 



The appellant denies that he has at any time driven his cat- 

 tle upon the reserve, and asserts that if they went there they 

 did so of their own accord, the reserve not being inclosed by 

 the United States, and that he is not accountable for the acts 

 of the cattle in straying thereupon. We do not so regard the 

 evidence, and we think the injunction issued by the court below 

 may well be sustained on the ground that the evidence shows 

 that the appellant drove his cattle upon the reserve. His home 

 ranch was some 6 to 10 miles distant from the 320 acres in- 

 closed near the reserve. He drove large bands of cattle within 

 the 320 acres, which was inclosed on three sides but open on 

 the side toward the reserve, and left them there. Of course he 

 knew that they would not and could not remain in the inclo- 

 sure, for there was no water there nor sufficient pasture for so 

 large a herd. They did as he evidently expected them to do. 

 They went through the convenient openings which he had made 

 in his fence for that purpose. In Lazarus v. Phelps (152 U. S., 

 81-85) the court said: "So, if he lease a section of land ad- 

 joining an uninclosed section of another and stock his own sec- 

 tion with a greater number of cattle than it could properly 

 support, so that, in order to obtain the proper amount of grass, 

 they would be forced to stray over upon the adjoining section, 

 the duty to make compensation would be as plain as though 

 the cattle had been driven there in the first instance. The 

 ordinary rule that a man is bound to contemplate the natural 

 and probable consequences of his own act would apply in such 

 a case." 



Counsel for the appellant seek support for their contention 

 in the implied license to pasture on public lands, growing out 

 of the custom by which such use has been permitted from the 

 beginning of the Government and in the decision in Buford v. 

 Houtz (133 U. S., 320), in which the court recognized such 

 license to use the public lands where they are left open and 

 uninclosed, " and no act of the Government forbids their use." 

 But the lands included in a forest reservation are no longer 

 public lands within the purport of that decision, and the act 

 of the Government does forbid their use. The creation of such 

 a reservation severs the reserved land from the public domain, 

 disposes of the same, and appropriates it to a public use. 

 (Wilcox v. Jackson, 13 Peters, 498.) In pursuance of its policy 

 of reserving for the public welfare public lands on which is 

 growing timber or undergrowth, for the preservation of the 

 timber and the water supply, as provided in the act of March 

 3, 1891 (26 Stats., 1103), and in order to make that act more 



