362 



AMERICAN FORESTRY 



be required to prevent his cattle straying 

 upon the Reserve from the open public 

 land on which he had a right to turn them 



loose. 



At common law the owner was required 

 to confine his live stock, or else was held 

 liable for any damage done by them upon 

 the land of third persons. That law was 

 not adapted to the situation of those States 

 where there were great plains and vast 

 tracts of unenclosed land, suitable for pas- 

 ture. And so, without passing a statute, 

 or taking any affirmative action on the sub- 

 ject, the United States suffered its public 

 domain to be used for such purposes. There 

 thus grew up a sort of implied license that 

 these lands, thus left open, might be used 

 so long as the Government did not cancel 

 its tacit consent. Buford v. Houtze, 133 

 U. S., 326. Its failure to object, however, 

 did not confer any vested right on the com- 

 plainant, nor did it deprive the United 

 States of the power of recalling any im- 

 plied license under which the land had been 

 used for private purposes. Steele v. United 

 States, 113 U. S., 130; Wilcox v. Jackson, 

 16 Pet, 513. 



It is contended, however, that Congress 

 cannot constitutionally withdraw large 

 bodies of land from settlement without the 

 consent of the State where it is located; 

 and it is then argued that the act of 1891 

 providing for the establishment of reser- 

 vations was void, so that what is nominally 

 a Reserve is, in law, to be treated as open 

 and uninclosed land, as to which there still 

 exists the implied license that it may be 

 used for grazing purposes. But "the Na- 

 tion is an owner, and has made Congress 

 the principal agent to dispose of its prop- 

 erty." * * * "Congress is the body to 

 which is given the power to determine the 

 conditions upon which the public lands 

 shall be disposed of." Butte City Water 

 Co. V. Baker, 196 U. S., 126. "The Govern- 

 ment has with respect to its own land the 

 rights of an ordinary proprietor to main- 

 tain its possession and prosecute tres- 

 passers. It may deal with such lands pre- 

 cisely as an ordinary individual may deal 

 with his farming property. Tt may sell or 

 withhold them from sale." United States 

 V. Canfleld, 167 U. S., 524. And if it may 

 withhold from sale and settlement it may 

 also as an owner object to its property 

 being used for grazing purposes, for "the 

 Government is charged with the duty and 

 clothed with the power to protect the 

 public domain from trespass and unlawful 

 appropriation." United States v. Beehee, 

 127 U. S., 342. 



The United States can prohibit absolutely 

 or fix the terms on which its property may 

 be used. As it can withhold or reserve the 

 land it can do so indefinitely. Stearns v. 

 Mi7\nesota. 179 U. S., 243. It is true that 

 the "United States do not and cannot hold 

 property as a monarch may for private or 

 personal purposes." Van Brocklin v. Ten- 



nessee, 117 U. S., 158. But that does not 

 lead to the conclusion that it is without the 

 rights incident to ownership, for the Con- 

 stitution declares. Sec. 3, Art. IV, that 

 "Congress shall have power to dispose of 

 and make all needful rules and regulations 

 respecting the territory or the property be- 

 longing to the United States." "The full 

 scope of this paragraph has never been 

 definitely settled. Primarily, at least, it 

 is a grant of power to the United States 

 of control over its property." Kansas v. 

 Colorado, 206 U. S., 89. 



"All the public lands of the nation are 

 held in trust for the people of the whole 

 country." United States v. Trinidad Coal 

 Co., 138 U. S., 160. And it is not for the 

 courts to say how that trust shall be ad- 

 ministered. That is for Congress to deter- 

 mine. The courts cannot compel it to set 

 aside the lands for settlement; or to suffer 

 them to be used for agricultural or grazing 

 purposes; nor interfere when, in the exer- 

 cise of its discretion, Congress establishes 

 a forest reserve for what it decides to be 

 national and public purposes. In the same 

 way and in the exercise of the same trust 

 it may disestablish a reserve, and devote 

 the property to some other national and 

 public purpose. These are rights incident 

 to proprietorship, to say nothing of the 

 power of the United States as a sovereign 

 over the property belonging to it. Even 

 a private owner would be entitled to pro- 

 tection against willful trespasses, and stat- 

 utes providing that damage done by ani- 

 mals cannot be recovered, unless the land 

 had been inclosed with a fence of the 

 size and material required, do not give 

 permission to the owner of cattle to use 

 his neighbor's land as a pasture. They 

 are intended to condone trespasses by stray- 

 ing cattle; they have no application to 

 cases where they are driven upon unfenced 

 land in order that they may feed there. 

 Lazarus v. Phelps, 152 U. S., 81; Moore v. 

 Cannon, 24 Mont., 324; St. Louis Cattle 

 Co. v. Vaught, 1 Tex. App., 388; The Union 

 Pacific V. Rollins, 5 Kans., 176. 



Fence laws do not authorize wanton and 

 willful trespass, nor do they afford im- 

 munity to those who, in disregard of prop- 

 erty rights, turn loose their cattle under 

 circumstances showing that they were in- 

 tended to graze upon the lands of another. 



This the defendant did, under circum- 

 stances equivalent to driving his cattle 

 upon the forest reserve. He could have ob- 

 tained a permit for reasonable pasturage. 

 He not only declined to apply for such li- 

 cense, but there is evidence that he threat- 

 ened to resist efforts to have his cattle re- 

 moved from the Reserve, and in his answer 

 he declares that he will continue to turn 

 out his cattle, and contends that if they go 

 upon the Reserve the Government has no 

 remedy at law or in equity. This claim 

 answers itself. 



It appears that the defendant turned out 



