Buford v. Houtz , 5 Utah 591 ( 1888 )

Boreman, J.:

Plaintiffs brought suit against defendants to restrain them from pasturing sheep on the lands of the plaintiffs, and for other purposes. The plaintiffs claim to own a great variety of alternate sections of railroad lands, and charge that the defendants own separate and distinct flocks of sheep, but pasture them in various parts of these alternate sections of land. The defendants demurred to the complaint, alleging as the grounds of demurrer that the complaint does not state facts sufficient to constitute a cause of action, and that it improperly unites different causes of action. The demurrer was sustained; and, the the plaintiffs electing to. stand on their complaint, the action was dismissed by the court, From this judgment of dismissal the plaintiffs have appealed to this court. The case has been submitted without briefs and without arguments. The assignment of errors has reference wholly to the sustaining of the demurrer, and the consequent dismissal of the action.

The first ground of demurrer is that the complaint does not state facts sufficient to constitute a cause of action. It is a well-recognized fact, and one of which the court will take judicial notice, that a very large proportion of the lands in this region are used for grazing purposes, and for such purposes alone. It becomes a necessity, therefore, that the strict rules regarding trespass upon lands are not entirely applicable, or,- at least, are very much modified. These lands were all originally government lands, and are mostly so at the present time. The government has tacitly given the public the privilege of pasturing' on these lands, and the common practice is for the settlers to use them in common, except where they may be fenced. When the government has made a transfer of any snch lands, and thereafter they were allowed to remain open as before the transfer, the practice of using them as common pasturage has continued. The lands involved in the present suit are alternate sections in a tract of country 40 miles long and 36 miles wide. Through this tract of country there are four public roads running north and south, and three such roads running east and west. It is not stated in the complaint whether the sections not owned by these plaintiffs would be reached by these roads or not. Those sections not owned by the plaintiffs are still owned by the government, except in such instances as where parties have obtained a title from the government. Those owned by the government are open to occupancy and settlement, but settlers could, not reach them if situated off from these roads referred to. And settlers, with their flocks and herds, reaching them, would necessarily have to pass over some land of the plaintiffs. If, thferefore, any injunction were issued against such parties, in accordance with the complaint, they would be liable for contempt of court, and subjected to a heavy cost and inconvenience. If this injunction were granted it would become obligatory for all settlers passing through the country, and all herdsmen, to be constantly hunting the corners and boundaries of the plaintiffs’ lands, none of which lands are fenced. It would be-a source of great vexation and annoyance to the settlers and herdsmen, and virtually prevent their use of the public lands. The plaintiffs have had the privilege of passing oyer government lands in reaching their land's, and have had the privilege of pasturing on government lands in connection with their own. As long as they do not fence their lands, they ought not to complain that other people use their lands in the manner they had used the public lands. Some of the lands of the plaintiff are alleged not to be such as would justify the cost of fencing. The damage by the herdsmen to such lands, therefore, would be very slight. The granting of the injunction, as prayed, would give the plaintiffs virtual use of their own. lands, and also of all .lands within this vast tract of 40 by 36 miles. Under all tbe circumstances stated in tbe complaint, we do not tbink that tbe facts stated were sufficient to justify tbe issuing of an injunction, or for granting any relief prayed for. Tbe demurrer was properly sustained, and we see no error in tbe dismissal of tbe action. The judgment of tbe court below is affirmed.

Zane, 0. J., and Henderson, J., concurred.