State v. Goodnight , 70 Tex. 682 ( 1888 )

Gaines, Associate Justice.

On the fifth of May, 1886, the State of Texas, by John D. Templeton, its Attorney General, filed its petition against the, appellee, Charles Goodnight, for a mandatory injunction to compel the removal of certain enclosures around public lands of the State, and to restrain the construction ,of any additional fences. The defendant filed a plea in abatement on the ground that there was a want of necessary parties to the action; and also a general demurer to the petition. The plaintiff excepted to the plea in abatement, and the exceptions were overruled. The court then sustained the demurrer to the petition, and the State declining to amend, the petition was dismissed.

We are of the opinion that the demurrer to the petition was improperly sustained. The allegations show that the defendant had practically enclosed for the purposes ofr pasturing and raising cattle and horses over six hundred thousand acres of the public school lands of the State; and also over fourteen thousand acres of its unappropriated public domain; and that when the fences are not continuous the enclosures are “guarded by line riders, or in some other equally effective manner.” It is alleged that the enclosures prevent the use of the public lands so enclosed as commons for grazing purposes by the inhabitants of the State, and greatly interfere with the moving of stock to market by her people and obstruct the travel of the public; and that they are contrary to the policy of the State, are expressly forbidden by the acts of the Legislature, approved February 7, 1884, and seriously impede the sale of the lands under the laws which have been enacted for that purpose. We think the enclosures set forth in the petition, both a purpresture and a public nuisance. . “A purpresture strictly is an encroachment upon a public right in lands or navigable streams that does not operate as an obstruction or injury to individual members of the public, but only to some right incident and peculiar to it in its aggregate capacity as such.” (Wood on Nuisance, sec. 84, p. 87.) In so far as the fences alleged in the petition interfere Avith the sale or lease of the public lands, the petition shows an injury to the public as an aggregate body—they affect all alike.

This is an obstruction of a right which the State, before the passage of the act of February 7, 1884, might have waived, but Avkich since the passage of that act it becomes the duty of its proper officers to remove by legal proceedings. But the obstruction complained of in this case is something more than an interference with the rights of the State as a body politic. In so far as it obstructs the right of common in the public lands and the moving of cattle to market and their passage in being removed from one part of the country to the other it is an interference with individual rights to public property. The enclosure of public lands for private use, whether viewed as a Avrong merely to the body politic or as an infringement of the privileges of its citizens, is a nuisance subject to be abated at the - suit of the State, and an injunction is a well recognized and appropriate remedy. U. S. v. Brighton Ranch Co., 26 Fed. Rep., 218; same case, 25 Id., 465 ; Railway Co. v. Ward, 2 Black, U. S., 485; State v. Atkinson, 24 Vt., 448; State v. Woodward, 23 Vt., 92; Attorney General v. Wood, 108 Mass., 436; Lead Co.’s App. 96 Pa. St., 116.)

But it is insisted in the brief of counsel for appellee that the State has a plain, adequate and complete remedy, without resort to the writ of injunction. We understand it to be claimed, in the first place, that because the act of February 7, 1884, makes the enclosure of the public lands a penal offense, and provides for the prosecution and punishment of offenders against it, that therefore a court of equity will not interfere, But this proposition can not be maintained. Public nuisances were indictable at common law, and yet were always subjected to be enjoined. (The People v. St. Louis, 5 Gilm., 351; Lead Co.’s Appeal, 96 Pa., State 116; Attorney General v. Hunter, 1 Dev. Eq., 12; Railway Co. v. Black, U. S., 485.) In Attorney General v. Woods, 108 Massachusetts, 436, an injunction was held to be a proper remedy, although the statute which declared the nuisance which was sought to be enjoined, made provision for the indictment of who offended against its requirements.

Besides, the act provides that its provisions shall not apply to any person or corporation who has heretofore, or who may thereafter, in good faith, fence land not their own. (Acts 1884, p. 69, sec. 3.) Hence a criminal prosecution would not succeed unless it were shown beyond a reasonable doubt that the enclosure was erected with unlawful intent; whereas, in a suit for an injunction, proof of good faith would constitute no defense.

But we are also referred to our statutes which provide for the action of trespass to try title as affording an adequate legal remedy for the wrongs complained of in this case, but we do not so regard it. It may be, that if the fence were wholly or mainly upon the public lands, that the State, by bringing an action for the recovery of the possession, could eject the intruder and destroy the enclosure. But such, as we understand it, is not the case made in the petition. The petition alleges that the defendant has enclosed the lands of the State; not that they have erected the enclosures upon their lands. The case of the United States v. Brighton Ranch Company, 26 Federal Reporter, 218, was brought in the United States circuit court for Nebraska, to compel the defendants, by a mandatory injunction, to remove a barbed wire fence erected partly on the public land and partly on its own, around some fifty thousand acres of the public domain of the general government. At a preliminary hearing upon the law of the case, Judges Brewer and Dundy held that the action was properly brought; and on the final hearing, Mr. Justice Miller, of the Supreme Court, sitting in the circuit, awarded the mandatory injunction compelling the removal of the enclosure. (U. S. v. Ranch Co., 25 Fed. Rep., 465.) That case affords an authoritative precedent for the procedure in the case before us.

We are also of opinion that the court below erred in overruling the exceptions to the plea in abatement. The plea set up that there were other persons, natural and artificial, who were interested in the fences which were sought to be removed, and gave in part the names and residences of the parties so interested. It also alleged that the defendant was not the sole owner of any part of the enclosures. There was a general exception to* the plea, and also' a special exception that it was too vague, in that it did not distinctly specify in what part of the fences the persons and corporations each had an interest. It is insisted in argument that the exceptions should have been sustained, because it is no answer to so much of the petition as seeks to restrain the construction of new fences, to say that others are interested in the fence already made. The premise of this argument is sound, but the conclusion does not follow. The plea is not an answer to the petition in so far as it seeks the restraining order. We think the defendant could be enjoinep from doing a wrongful act of this character without reference to the interest of any other person in the act he was about to perform. . But he should not be required to remove property owned in whole or in part by others without such owners being made parties to the action, provided such owners be within the jurisdiction of the court. Hence, the*plea, if otherwise sufficient, was good as to so much of the petition as sought a mandatory injunction and should not have been stricken out because the persons named in it were not necessary parties as to a part of the relief sought. But we think that the exception to the plea on account of its vagueness was well taken. A plea in abatement should not only show the grounds upon which the suit should be abated, but should also give the plaintiff a better writ—that is, it should not only show that the suit is improperly brought but also how it should have been brought. The plea in this case says that others are interested in parts of the fences, but does not allege in what parts each have an interest, nor does it state the nature of that interest. A pleading should always state facts and not conclusions of law, and a plea in abatement, which sets a non joinder of parties defendant should show definitely and specifically the nature and extent of the interest of each person, who is claimed to be a necessary party.

In view of another trial it is proper to add a few remarks in regard to the extent to which the court may go, in granting relief to the plaintiff as to those portions of the fences in controversy, in which persons have an interest who are beyond, the jurisdiction of the court. We think the ends of justice make it necessary that the State should be allowed to proceed to judgment in such cases, as to those parts of enclosures, if any, which be has constructed or caused to be constructed upon either his own land or that of the State. (Railroad Co. v. Word, 2 Black, U. S., 485; C. S. M. Co. v. G. H. W. Co., 1 Sawyer, 470; same case. Id.,685.) Having created a nuisance,he should be compelled to remove it—when this can be done without tres™ passing upon the property of third persons—without reference to the interest of persons who can not be made parties to the suit. Such portions of the enclosures as are upon the lands of others, he can not be enjoined to remove, although he may have been a party to their erection, unless the owners of the lands are parties to the suit. If he be a part owner of the lands upon which the fences are found, either as partner or cotenant, and has been instrumental in creating the nuisance, he should be compelled to abate it, although bis cotenant or partner be not a party to the proceedings, when such tenant or partner is beyond the reach of the process of the court.

Opinion delivered July 1, 1888.

But in all cases, when persons have an interest in the enclosures who are within the jurisdiction of the court, we think a proper practice requires that they should be made parties to the proceedings.

For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.