United States v. Bisel , 8 Mont. 20 ( 1888 )

McConnell, C. J.

In this case there was a demurrer to the complaint, which was overruled, and the defendant refusing to answer, or make other defense, there was judgment by default, according to the prayer of the complaint. From this judgment and the order overruling the demurrer this appeal was taken. The complaint is as follows, to wit: “ First. That the defendant, Benjamin F. Bisel, since 1883, has had enclosed, by a good, strong, and substantial fence, the southeast quarter of section 36, in township 2 south, range 5 east, in Gallatin County, Montana Territory; that said land is public land, and that the defendant has no filings or entry thereon by which he can secure title to said land; nor has the defendant any title, or right, or color of title to said land; that he is using said land exclusively as his own, and by his fences is preventing the free passage over and across that portion of the public domain. Wherefore the plaintiff’s counsel asks that the defendant be compelled to remove his fences from around said land, and that he be forever enjoined and restrained from ever enclosing said land while the same remains public land, and that if the defendant shall fail or refuse to remove his fences in five days from the rendition of the judgment and decree herein, that the United States marshal for Montana Territory be empowered to take down and remove said fences in a summary manner.....” To this complaint the defendant interposed the following demurrer, to wit: “ First. That the said court has no jurisdiction of the subject-matter of the action, because (a) it is not a cause that arises under the Constitution or any law of the United States; (6) said court by law is one of limited jurisdiction, and there is no authority given by any act of Congress authorizing or empowering said court to hear and determine such a cause as that set out in the complaint; (c) because the court has no authority to grant the relief prayed for in said complaint. Second. That said complaint does not state facts sufficient to constitute a cause of action. Third. The complaint is ambiguous and uncertain, in this: it cannot be ascertained therefrom whether the plaintiff’s action is intended to be ejectment, trespass, or against the defendant for maintaining a nuisance, or whether a suit in equity or an action at law.”

The complaint is evidently founded upon the Act of Congress of February 25, 1885, found in 23 United States Statutes at Large, 321. This act provides “that all enclosures of any public lands in any State or Territory of the United States, heretofore or to be hereafter made, erected, or constructed by any person, party, association, or corporation making or controlling the enclosure, having no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim made in good faith, with a view to entry thereof at the proper land office under the general laws of the United States at the time any such enclosure was or shall be made, are hereby declared to be unlawful, and the maintenance, erection, construction, or control of any such enclosure is hereby forbidden and prohibited; and the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States, in any State, or any of the Territories of the United States, without claim, color of title, or asserted right, as above specified, as to enclosure, is likewise declared unlawful, and hereby prohibited.” It also provides in section 2 that it shall be the duty of the United States district attorney “ to institute a civil suit in the proper United States District or Circuit Court, or territorial District Court, in the name of the United States, and against the parties named or described, who shall be in charge of or controlling the enclosure complained of, as defendants; and jurisdiction is also hereby conferred on any United States District or Circuit Court, or territorial District Court, having jurisdiction over the locality where the land enclosed, or any part thereof, shall be situated, to hear and determine proceedings in equity, by writ of injunction, to restrain violations of the provisions of this act.....In any case, if the enclosure shall be found to be unlawful, the court shall make the proper order, judgment, or decree for the destruction of the enclosure, in a summary way, unless the enclosure shall be removed by the defendant within five days after the order of the court.” By a simple comparison of the complaint with the provisions of the act of Congress, it appears that this is a cause of action arising under the laws of the United States. Hence there is nothing in the first ground of demurrer to the jurisdiction of the court.

And as to the second ground, we observe that while the District Court, sitting to hear and determine causes arising under the Constitution and laws of the United States, is one of limited jurisdiction in that respect, still Congress has the undoubted power to confer upon it any jurisdiction not in contravention of the provisions of the Constitution of the United States, and it has conferred upon it the jurisdiction in express terms to hear and determine causes arising under the aforesaid Act of February 25, 1885. And said act also expressly confers the power to grant the relief prayed for. It directs the United States district attorney to institute suit in the “ territorial District Court,” and “jurisdiction is also hereby conferred on ... . [the] territorial District Court having jurisdiction over the locality where the land enclosed shall be situated, to hear and determine proceedings in equity, by writ of injunction, to restrain violations of the provisions of this act.” Nothing can be plainer'than the language of this statute, and there is no room left for argument. In the case of Territory v. Murray, 7 Mont. 251, we defined the nature and the powers of the territorial courts, and reference is here made to said case and the authorities there cited. And we repeat here, that they are not United States courts, but simply territorial courts, upon which is conferred the additional power by Congress to hear and determine causes arising under the Constitution and laws of the United States; and while section 1910 of the Revised Statutes of the United States limits their powers to such as may be “vested in the Circuit and District Courts of the United States,” still, the jurisdiction to try causes arising under the act in question is conferred upon said courts as well as upon the territorial courts; and the practice of sitting to hear and determine causes arising under the Constitution and laws of the United States in one place only in each district, and of having the decrees and orders of the court while so sitting executed by the United States marshal, has been too long established to be now called in question.

But it is further insisted that the act provides for two classes of cases: “ First, for a civil action; second, for proceedings in equity; and that the complaint seems an endeavor to cover both classes of cases.” A sufficient answer to this is found in the fact that the statute which provides for a civil suit, to the end that “if the enclosure shall be found tobe unlawful the court shall make the proper order, judgment, or decree for its destruction in a summary way,” and the proceedings in equity by writ of injunction, to restrain violations of this act, is only auxiliary to the suit to destroy the unlawful enclosures. The purpose is to destroy those already made, and enjoin the guilty trespassers from creating others in the future. There is but one form of-action under our territorial practice act, and it applies to the territorial courts when sitting to hear and determine causes arising under the Constitution and laws of the United States, as well to them as when sitting simply as territorial courts. ( U. S. v. Williams, 6 Mont. 386.) There is nothing improper, then, in the complaint praying for the destruction of the enclosure, and an injunction restraining the defendant from again erecting it. As to the objection that the complaint sets forth no ground for an injunction, it is enough to remark that the defendant by his demurrer confesses himself to be a naked trespasser, and it does not lie in his mouth to complain of an order restraining him from further trespasses. ■ Such an order cannot hurt him, if he obeys the law.

But the main controversy arises out of the second cause of demurrer, to wit, that the complaint does not state facts sufficient to constitute a cause of action. It describes the lands alleged to be enclosed as a part of the thirty-sixth section, and by section 1946 of the Revised Statutes of the United States, said section is reserved for public school purposes; and it thus appearing upon the face of the complaint that the foots in quo is public school land, it is insisted that it is no part of the public lands, and hence is not embraced by the act in question. In support of this proposition we are referred to the cases of Newhall v. Sanger, 92 U. S. 761, 763; Wilcox v. Jackson, 13 Peters, 511, 512; U. S. v. Fitzgerald, 15 Peters, 417; Easton v. Salisbury, 21 How. 428; and Minnesota v. Batchelder, 1 Wall. 109. It is true that section 1946 reserves sections 16 and 36 in each township in the Territory for public school purposes, and, while such reservation continues, such lands are sub modo segregated from the public domain; they are not open to settlement under the statutes regulating this subject; they would not pass under any granting act of Congress that did not mention them; nor would they be embraced under the definition of “public lands,” as given by Mr. Justice Davis in the case of Newhall v. Sanger, supra. He says they “are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.” This case arose under the Acts of Congress of 1862 and 1864, granting to the Pacific railroads every alternate section of public lands designated by odd numbers, within certain limits, and these acts also declare that the lands granted shall not include any “government reservation.” The land in controversy was embraced in a Mexican grant, then sub judice, and the majority of the court held that it was a “ government reservation,” and did not pass by the granting acts supra, and did not come within the expression “public lands” used in them. The case of Wilcox v. Jackson, 13 Peters, 611, decides that when the United States appropriates public lands for a military post, they are reserved, and do not pass under a settler’s pre-emption act. The court held generally in that case, that “ whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands, and that no subsequent law or proclamation or sale would be construed to embrace it, although no reservation were made of it.” We have examined all these cases carefully, and do not think they control the case before us. They arise between individuals who claim rights under certain reservations as against grants more or less general, in which such reservations are not excepted. We must inquire what Congress meant by the use of the words “public lands” in the statute under consideration. It was manifestly passed for the purpose of remedying a great public evil, to wit, the fencing up, and thus appropriating to individual uses, the common heritage of all. This court might, almost, also take judicial notice of the fact, which is a part of the history of the Territories, that the greed of syndicates and corporations had led them to fence up large areas of the public domain about the time this act became a law, and it was its purpose to destroy such enclosures in a “summary manner.” And while sections 16 and 36 were reserved for the purpose of aiding the development of the public school system in the coming State of Montana, and, so far as their sale for the purposes of settlement is concerned, were segregated from the public domain, still the title to them and the dominion and control over them remain in the government of the United States; the agents of the public school system have no control over them. The United States may hold them in trust for the schools, and the act reserving them may be irrevocable without the consent of the people of the Territory, as it is contended was decided in the case of Minnesota v. Batchelder, 1 Wall. 109; still such lands must be held to be public lands within the meaning of this act. Congress certainly did not intend to pass a purely remedial statute, and leave exposed to the rapacity of lawless trespassers, the heritage of the children of this Territory. To so construe this act would be to defeat the operation of the law as to one eighteenth of the lands of this Territory, which are exposed to the forbidden depredations. It would be to give a meaning to words at once narrow and not intended by Congress, and to a large extent defeat the very object of the law. There is no statutory definition of the words “public lands,” and the meaning of them may vary somewhat

in different statutes passed for different purposes, and they should be given such meaning in each as comports with the intention of Congress in their use. We are then clearly of opinion that the act in question embraces the school lands of this Territory, and that the complaint does state a cause of action.

The other ground of demurrer, which was predicated upon the theory that the action was not brought under the Act of February 25, 1885, is not well taken. The other questions raised in the briefs need not be noticed, as they refer to matters that would arise if we had held the Act of 1885 not applicable to this case. Since the foregoing was written, we have received the case of Barkley v. U. S. 3 Wash. 522, which fully sustains our view of this question. The action of the court below is sustained, and the judgment affirmed.

Judgment affirmed.

Bach, J., and Liddell, J., concur.