Judge Hanford Draws the Line: Sheep Can't Graze on Railroad Land Without Consent

Tacoma, Wash., Nov. 16th, 1898.

Editor Ranch and Range:

In your issue of the 10th instant appears an item copied from the Klickitat Agriculturist purporting to give the gist of Judge Hanford's decision in the case of the Northern Pacific Railway Co. versus James Cunningham. I enclose a complete copy of the decision referred to, and you will agree with me on reading the same that intentionally or unintentionally the item referred to conveys a meaning exactly the reverse of what the judge actually said. I think the gist of the decision is really contained in the following extract from the same:

"It is my opinion that in this state the pasturing of sheep upon unenclosed grazing land without the owner's consent is unlawful."

However, if you can find room for the entire opinion in your columns I hope you will publish it in full, so that any parties interested can read the decision for themselves and draw their own conclusions.

THOMAS COOPER, Western Land Agent Northern Pacific Railway Company.

THE DECISION.

In the Circuit Court of the United States, District of Washington, Southern Division.

Northern Pacific Railway Company, a corporation, complainant, vs. James Cunningham, defendant.

Crowley & Grosscup for complainant. A. S. Bennett for defendant.

This is a suit for an injunction to restrain the defendant from pasturing sheep upon unenclosed lands owned by the plaintiff, situated in Yakima County, in the State of Washington, said lands being part of the land grant to the Northern Pacific Railroad Company. The answer sets up that the lands referred to in the plaintiff's bill of complaint are alternate odd-numbered sections, and that the same are unenclosed and the boundaries thereof unmarked, the original survey stakes set at the section corners having been destroyed; that the alternate even sections are public lands of the United States, upon which the plaintiff claims the right, as a licensee of the government, in common with all other citizens, to pasture sheep; that it is impossible for the defendant, or others having the right to use the vacant unenclosed grazing lands belonging to the United States in the vicinity described in the complaint, without crossing over the alternate odd-numbered sections to which the plaintiff claims title; that the defendant is innocent of any intention to trespass upon the plaintiff's lands, and that his sheep do graze upon the plaintiff's lands only to a limited extent, which the defendant is unable to prevent, because of the failure of the plaintiff to enclose its lands or to mark the boundary line separating the odd-numbered from the alternate even-numbered sections.

The plaintiff has filed exceptions on the ground that the matters pleaded to in the answer do not constitute a defense.

In the argument counsel for the defendant has presented with earnestness and ability the following propositions:

1. That in all such grants or conveyances—that is, where the land granted is entirely surrounded by the land reserved to the grantor, and vice versa—there is a way of necessity which passes to the grantee on the one hand, and is reserved by the grantor on the other, to pass across the land granted or reserved, as the case may be, to reach its own land.

2. That this right goes with the land, and passes to any person using the land, with the consent of the owner, whether it be a tenant or a licensee, going there with the permission of the owner.

3. That the defendant in this case, in common with all other citizens of the country, is a licensee of the government in the use of its public lands for grazing purposes and goes there to use the land with its permission and authority, and therefore, as long as such implied permission and authority continues, has the same right to go across plaintiff's land to reach government sections as against the plaintiff, as the government itself would have.

I can and do give the defendant the full benefit of the above propositions in their entirety, but, having done this, I am still far away from the conclusion which the defendant's counsel has endeavored to draw from these propositions.

A way of necessity can be claimed only on the ground of necessity. The right is limited to the single purpose of affording access to premises which would otherwise be inaccessible, and under this pretense there can be no legal or equitable claim to an easement in all of the lands surrounding the premises to which the right of access may be claimed, nor to any greater area than is reasonably sufficient for the purpose of a highway. In face of the facts pleaded in this answer, the plaintiff would have no case if the object of the suit was to restrain the defendant from driving sheep across its lands for the purpose of pasturing the same upon the alternate sections owned by the government, but the purpose of this suit is different. The plaintiff complains because the defendant's sheep consume the entire crop of grass upon its lands and are doing permanent injury to the land itself by destroying the roots of the grasses and poisoning the lands, and it is no answer to this complaint for the defendant to say that he claims an easement and a right to use sufficient of the plaintiff's lands as a highway to gain access to other lands where he may lawfully take his sheep for pasturing.

The case of Buford v. Houtz, 133 U.S., 320-332, upon which the defendant relies, would be conclusive in his favor upon this hearing if the local law upon which that decision rests prevailed in this state. In the opinion by Justice Miller, the Supreme Court is careful to make it clear that in Utah, where the case arose, the rule of common law that the owner of domestic animals should be liable for their trespassing upon unenclosed land of his neighbor does not prevail, but on the contrary, his right to permit them, when not dangerous, to run at large, without responsibility for their getting upon such land of his neighbor, is a part of the statute law. The opinion is instructive, and as I must before the final determination of the rights of the parties give prominence to the important difference in the local law affecting them from the law of Utah, which controlled that decision, I deem it proper to insert here a quotation of sufficient length to show clearly the considerations upon which the decision rests:

[Here follows a lengthy quotation from Buford v. Houtz, discussing the implied license for grazing on public lands.]

In this state the rule is the same as in Utah, except as to sheep. Whether founded in truth or not, the belief is prevalent in this state that wherever flocks of sheep are herded, the land is injured for grazing purposes, and the interests of cattlemen and other farmers had prevailed with the legislature, so that more than ten years ago the pasturing of sheep upon lands owned by any person other than the owner of the sheep, whether enclosed or unenclosed, without the consent of the owner of such lands, was made unlawful. Ballinger's Codes and Stats of Wash., Sec. 3482.

The owner of the land whose title is not disputed has a right in equity to prevent relief against any person who, without right, is causing irreparable injury by extracting minerals from the land, or cutting timber thereon, and for the same reason he should have relief against a trespasser who impairs the value of grazing lands by destroying the roots of the grass, or in any way makes the same unfit for grazing purposes.

It is my opinion that in this state the pasturing of sheep upon unenclosed grazing land, without the owner's consent, is unlawful and especially injurious to the owner, because it depreciates the value of the land, and that in a suit for an injunction to prevent such injury, the matters pleaded in the answer do not constitute a complete defense, but are proper to be considered in fixing the limits and conditions of a decree granting an injunction and also proper to be considered if there should be occasion to enforce an injunction, or punish disobedience by contempt proceedings.

For this reason the exceptions will be overruled, but the parties will understand that upon the final hearing proper relief to the complainant will not be denied for any of the reasons set forth in the answer.

(Signed) C. H. HANFORD, Judge.