US SUPREME COURT DECISIONS

The writ of error in this case is dismissed because it does not appear that the jurisdictional amount is involved.

This was a proceeding by the United States to compel the defendant to abate a wire fence, by which he was alleged to have enclosed a large tract of public lands belonging to the United States, and subject to entry as agricultural lands, in violation of the Act of February 25, 1885, 23 Stat. 321, c. 149, to prevent the unlawful occupancy of public lands. The first section of the act reads as follows:

"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, . . . to any of which land included within the enclosure the person . . . making or controlling the enclosure had 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 land 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 or occupancy of any part of the public lands of the United

Page 146 U. S. 534

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."

The answer denied in general terms that the defendant had enclosed any of the public lands without any title or claim or color of title acquired in good faith thereto or without having made application to acquire the title thereto, etc. The answer was subsequently amended by setting up a Mexican grant of the lands in question, and an application then pending before Congress for the confirmation of such grant. Upon the trial, the court found the issue in favor of the United States, and decreed that the enclosure was of public land, and was therefore unlawful, and rendered a special judgment, in the terms of the act, that the fence be removed by the defendant within five days from date, and, if defendant fail to remove said fence, that the same be destroyed by the United States marshal, etc.

Defendant thereupon appealed to the supreme court of the territory, by which the judgment was affirmed. Defendant was then allowed an appeal to this Court.