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In an action for damages sustained through the herding and grazing of sheep upon the plaintiffs' lands it is proper, in establishing the amount of damages, to inquire into the ease or difficulty in securing other pasture near by and the market price of similar pasture, or the price of such foodstuffs as would have been necessary to have kept and fed plaintiffs' live stock, or to have shown the price the plaintiffs could have secured for their pasture, or the number of live stock they could have pastured thereon and the value per month for the pasturage for each head of such live stock, and such other evidence of kindred and similar import which would have enabled the jury to have intelligently fixed the value of the property destroyed at the time of its destruction. (Risse et ux. v. Collins (Sup. Ct. Idaho), 87 Pac., 1006.)
The damages for injuries to growing grass, through incursions of animals, may be established by evidence tending to show how many cattle could be grazed upon the land trespassed upon and what such pasturage would be worth. (Buttles v. Chicago, etc., Ry. Co., 43 Mo. App., 280; see also Vermilja v. Chicago, etc., Ry. Co., 66 Iowa, 606.)
The Secretary of Agriculture may authorize Forest Service officers to assess and collect both punitive and actual damages in willful grazing trespass cases where the trespasser is willing to make settlement without reference of the case to court. (Sol. Op., Apr. 1, 1915.)
An owner of stock is not liable for the damage caused by such stock while trespassing upon lands of the United States where the stock are in the possession and under the control of another who is not merely an agent, or servant, of the owner, but who holds the stock as lessee, bailee, or under the terms of an agreement whereby he secures an equitable interest in the same. (2 Sol. Op., 1065.)
Under the acts establishing forest reservations their use for grazing or other lawful purposes is subject to rules and regulations established by the Secretary of Agriculture, and it being impracticable for Congress to provide general regulations, that body acted within its constitutional power in conferring power on the Secretary to establish such rules; the power so conferred being administrative, and not legislative, is not an unconstitutional delegation. (United States v. Grimaud, 220 U. S., 506.)
At common law the owner was responsible for damage done by his live stock on land of third parties, but the United States has tacitly suffered its public domain to be used for cattle so long as such tacit consent was not canceled, but no vested rights have been conferred on any person, nor has the United States been deprived of the power of recalling such implied license. (Light v. United States, 220 U. S. 523.)
Congress has power to set apart portions of the public domain and establish them as forest reserves and to prohibit the grazing of cattle thereon or permit it subject to rules and regulations. (Id.)
Fence laws may condone trespasses by straying cattle where the laws have not been complied with, but they do not authorize wanton or willful trespass, nor do they afford immunity to those willfully turning cattle loose under circumstances showing that they were intended to graze upon the lands of another. (Id.)
Where cattle are turned loose under circumstances showing that the owner expects and intends that they shall go upon a reserve to graze thereon, for which he has no permit and he declines to apply for one, and threatens to resist efforts to have the cattle removed and contends that he has a right to have his cattle go on the reservation, equity has jurisdiction, and such owner can be enjoined at the instance of the Government, whether the land has been fenced or not. (Id.)
Injunctions to restrain grazing trespassers.
[Shannon v. United States (C. C. A. Ninth Circuit), 160 Fed., 870.] Where defendant drove large bands of cattle into a 320-acre pasture which was inclosed on three sides, but open on the side toward a public forest reserve, knowing that there was no water in the pasture, and that it was insufficient to sustain the cattle, and that they must of necessity drift onto the reserve for pasture and water, defendant could not claim freedom from responsibility for the cattle trespassing on the reserve because he at no time drove them there and because the reserve was not inclosed.
The creation of a forest reserve severs the reserved land from the public domain and appropriates it to public use, so that it is no longer subject to the implied license to pasture on public lands.
The rules promulgated by the Secretary of the Interior regulating the number of cattle and other live stock that may be pastured on a forest reserve, and the manner in which the owners may obtain permission to use the reservation for that purpose, are reasonable and within the power granted by act of Congress of June 4, 1897, chapter 2 (30 Stat., 34 U. S. Comp. St. 1901, p. 1542), giving the Secretary of the Interior power to make rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests from destruction.
The Federal Constitution delegates to Congress the general power, absolutely and without limitation, to dispose of and make all needful rules and regulations concerning the public domain independent of the locality of the land, whether situated in a State or Territory, the exercise of which power can not be restricted in any degree by State legislation.
Congress had no power to relinquish any of its jurisdiction over the public domain by a compact with the State of Montana on admission of the State into the Union, nor had the State any power to reserve any such control.
Public lands in the State of Montana were not subject to the stock and fence laws of the State, which were applicable only to lands subject to the State's dominion.
Where the United States brought suit to restrain the trespass of defendant's cattle on a forest reserve, the fact that in such suit it acted in its proprietary capacity and was subject to the ordinary rules of pleading, practice, and laws applicable to the case did not operate as a waiver of any of its sovereign rights to the land sought to be protected.
It was no defense to an injunction restraining defendant's use of a United States forest reserve as a pasture that its issuance would impose a grievous burden on him to restrain the cattle in his adjoin
ing close, it also appearing that he could relieve himself of such burden by restoring a fence on one side thereof.
Substantially to the same effect as the foregoing was the earlier decision in Dastervignes v. United States, by the Circuit Court of Appeals for the Ninth Circuit (122 Fed., 30). The two following paragraphs of the syllabus of that case are of additional interest:
A bill filed by the United States to enjoin the pasturage of sheep in a forest reservation, in violation of the regulations prescribed by the Secretary of the Interior, alleged that the sheep pastured within the reservation were committing great and irreparable injury to the public lands therein and to the undergrowth, timber, and water supply. Affidavits filed in support of such allegations recited that the sheep of defendants destroyed undergrowth, young and growing trees and seedlings, and ate and destroyed the roots of the vegetation and grasses, leaving the ground bare and subject to disastrous washings by the rains, to the irreparable injury of the reservation, Held, that such allegation and showing constituted a sufficient ground for the granting of a preliminary injunction.
A bill by the United States against a number of defendants, to enjoin them from pasturing sheep in a forest reservation, is not subject to the objection of misjoinder and multifariousness where it alleges that defendants are pasturing two bands as sheep in the reservation and contains no averments which show or indicate any separate or distinct rights or different interests as between the several defendants.
An action of trespass is not maintainable as against one grazing unpermitted stock on private land, the exclusive use of which has been waived by the owner, there being no authority in this department to administer other than National Forest land. (1 Sol. Op., 544.)
FISCAL MANAGEMENT AND APPROPRIATIONS.
Act of May 26, 1910 (36 Stat., 416).
The Secretary of Agriculture for the fiscal year nineteen hundred and twelve, and annually thereafter, shall transmit to the Secretary of the Treasury for submission to Congress in the Book of Estimates detailed estimates for all executive officers, clerks and employees below the grade of clerk, indicating the salary or compensation of each, necessary to be employed by the various bureaus, offices, and divisions of the Department of Agriculture.
The agricultural appropriation act of March 4, 1911 (36 Stat., 1235, 1264), repeals the provision of the appropriation act of March 4, 1907 (34 Stat., 1256, 1270), requiring the submission to Congress of classified reports of the receipts and expenditures of the Forest Service.
Portion of receipts to States.
Act of May 23, 1908 (34 Stat., 251).
That hereafter twenty-five per centum of all money received from each forest reserve during any fiscal year, including the year ending June thirtieth, nineteen hundred and eight, shall be paid at the end thereof by the Secretary of the Treasury to the State or Territory in which said reserve is situated, to be expended as the State or Ter
ritorial legislature may prescribe for the benefit of the public schools and public roads of the county or counties in which the forest reserve is situated: Provided, That when any forest reserve is in more than one State or Territory or county the distributive share to each from the proceeds of said reserve shall be proportional to its area therein.
Portion of receipts for roads.
Act of March 4, 1913 (37 Stat., 828).
That hereafter an additional ten per centum of all moneys received from the national forests during each fiscal year shall be available at the end thereof, to be expended by the Secretary of Agriculture for the construction and maintenance of roads and trails within the national forests in the States from which such proceeds are derived; but the Secretary of Agriculture may, whenever practicable, in the construction and maintenance of such roads, secure the cooperation or aid of the proper State or Territorial authorities in the furtherance of any system of highways of which such roads may be made a part;
* * *
Cooperative contribution fund.
Act of June 30, 1914 (38 Stat., 415).
That hereafter all moneys received as contributions toward cooperative work in forest investigations, or the protection and improvement of the national forests, shall be covered into the Treasury and shall constitute a special fund, which is hereby appropriated and made available until expended, as the Secretary of Agriculture may direct, for the payment of the expenses of said investigations, protection, or improvements by the Forest Service, and for refunds to the contributors of amounts heretofore or hereafter paid in by them in excess of their share of the cost of said investigations, protection, or improvements: Provided, That annual report shall be made to Congress of all such moneys so received as contributions for such cooperative work.
Advances for fire-fighting purposes.
Act of May 23, 1908 (34 Stat., 251).
* * * and hereafter advances of money under any appropriation for the Forest Service may be made to the Forest Service and by authority of the Secretary of Agriculture to chiefs of field parties for fighting forest fires in emergency cases, who shall give bond under such rules and regulations and in such sum as the Secretary of Agriculture may direct, and detailed accounts arising under such advances shall be rendered through and by the Department of Agriculture to the Treasury Department.
Transportation of personal property.
Act of March 4, 1911 (36 Stat., 1235).
That hereafter officers and employees of the Department of Agriculture transferred from one official station to another for permanent duty, when authorized by the Secretary of Agriculture, may be allowed actual traveling expenses, including charges for the transfer of their effects and personal property used in official work, under such rules and regulations as may be prescribed by the Secretary of Agriculture.
Per diem and car fare allowances.
Act of August 10, 1912 (37 Stat., 269).
That hereafter, when officials and employees of the Department of Agriculture are traveling on official business in the United States, they may be allowed necessary railroad and steamboat fares, sleeping berth, and stateroom on steamboats, livery hire and stage fare, and other means of conveyance between points not accessible by railroad, but in lieu of subsistence and all other traveling expenses they may receive a per diem allowance, to be fixed by the Secretary in each case, in addition to their regular salaries, subject to such rules and regulations as the Secretary of Agriculture may prescribe.
That hereafter officials and employees of the Department of Agriculture may, when authorized by the Secretary of Agriculture, receive reimbursement for moneys expended for street-car fares at their official headquarters when expended in the transaction of official business.
Reimbursement for property lost, damaged, or destroyed.
Act of March 4, 1913 (37 Stat., 828).
That hereafter the Secretary of Agriculture is authorized to reimburse owners of horses, vehicles, and other equipment lost, damaged, or destroyed while being used for necessary fire fighting, trail, or official business, such reimbursement to be made from any available funds in the appropriation to which the hire of such equipment is properly chargeable.
Refunds of Forest revenues covered into Treasury.
Act of March 4, 1907 (34 Stat., 1256).
That all money received after July first, nineteen hundred and seven, by or on account of the Forest Service for timber, or from any other source of forest reservation revenue, shall be covered into the Treasury of the United States as a miscellaneous receipt and there is hereby appropriated and made available as the Secretary of Agriculture may direct out of any funds in the Treasury not otherwise appropriated, so much as may be necessary to make refunds to depositors of money heretofore or hereafter deposited by them to secure the purchase price on the sale of any products or for the use of any land or resources of the national forests in excess of amounts found actually due from them to the United States.
Additional refund provisions.
Act of March 4, 1911 (36 Stat., 1235).
That so much of an act entitled "An act making appropriations for the Department of Agriculture for the fiscal year ending June thirtieth, nineteen hundred and eight," approved March fourth, nineteen hundred and seven (Thirty-fourth Statutes at Large, pages twelve hundred and fifty-six and twelve hundred and seventy), which provides for refunds by the Secretary of Agriculture to depositors of moneys to secure the purchase price of timber or the use of lands or resources of the National Forests such sums as may be found to be in excess of the amounts found actually due the United States, be, and is hereby, amended hereafter to appropriate and to include so much as may be necessary to refund or pay over to the