Itcaina v. Marble

*423 OPINION By the Court, Ducker, C. J.: This appeal is from an order of the Fourth judicial district court, granting an injunction' pendente lite, issued after hearing of an order to show cause. The parties will be referred to as plaintiff and defendant. Plaintiff, a cattle raiser, brought this suit to restrain *424 defendant from watering his sheep at springs and watercourses situated in territory in Elko County, commonly known and called Hanks creek basin, and from grazing his sheep on the public range of that area. The complaint is predicated upon three causes of action: First. That for more than forty years, plaintiff and his predecessors in interest have been the owners of the right to use all of the waters of Hanks creek basin and its tributaries and of certain described springs for stock-watering purposes within the limit of said Hanks creek basin, and that the watering of sheep by the defendant in said basin was violative of the 1925 stock-watering law. Second. That plaintiff and his predecessors in interest have acquired the right to the exclusive use of all of the public lands within said Hanks creek basin under the 1931 stock-grazing act for grazing cattle; that such right was acquired by virtue of such use for a period of more than forty years last past; and that the grazing of sheep by defendant within the limits of Hanks creek basin was violative of said stock-grazing act. Third. That such watering and grazing of sheep by defendant was violative of the terms of an oral agreement between plaintiff and defendant for a division of the public range, entered into March 1, 1927, whereby defendant agreed to confine the grazing of his sheep to areas outside of Hanks creek basin, which agreement was a part of the consideration of a written agreement later executed between them in which plaintiff agreed to sell, and defendant agreed to buy, a large area of land, together with certain forest reserve rights and permits, for the sum of $122,700, payable in installments, and on which the sum of $70,000 had been paid. Defendant claimed an established use of said waters for watering sheep. He also claimed an established use for grazing his sheep in Hanks creek basin by force of the 1931 stock-grazing act. He denied any agreement as to a division of the range. At the conclusion of the hearing, which extended through a number of days, during which considerable testimony was given and evidence adduced on the part *425 of both parties, the court rendered an oral opinion which was reduced to writing, and is included among the papers constituting the. record on appeal. No formal findings were made. The court decided that plaintiff was entitled to an injunction on all three causes of action alleged in the complaint. But the relief sought by plaintiff was granted only in part by confining it to the major portion of the public lands in said Hanks creek basin. A right of way was reserved to defendant by the injunction to permit him to drive his sheep across the southern part of the public range affected by it to and from lands owned by him. The errors relied upon for a reversal of the order granting the injunction pendente lite, are as follows: First. That said order is contrary to, and not supported by, the evidence. Second. That the trial court was without jurisdiction of the first cause of action alleged, because the act of the legislature, being chapter 201, Statutes of 1925, under which it was laid, does not authorize the issuance of the injunction. Third. That the trial court was without jurisdiction as to the second cause of action alleged, or to grant any in june-, tion thereunder, because chapter 226, Statutes of 1931, under which it was brought, does not invest any customary user of unappropriated public domain with title thereto or estate therein sufficient upon which to base an injunction. Fourth. That the court erred in permitting any testimony to be introduced as to the oral agreement alleged in the third cause of action, and was without jurisdiction to issue an injunction for the claimed breach of the oral contract. Section 2 of the former act reads: “Whenever one or more persons shall have a subsisting right to water range live stock at a particular place, and in sufficient numbers to utilize substantially all that portion of the public range readily available to livestock watering at that place, no appropriation of water from either the same or a different source shall subsequently be made by another for the purpose of watering range live stock in such numbers and in such proximity to the *426 watering place first mentioned, as to enable the proposed appropriator to deprive the owner or owners of the existing water right of the grazing use of said portion of the public range, or to substantially interfere with or impair the value of such grazing use and of such water right.” Section 4 of the act makes a violation of the above provision a misdemeanor. The act does not provide for granting an injunction. Section 1 of said act of 1931, insofar as it is applicable to the facts of this case, reads: “It shall be unlawful to graze live stock on any part of the unreserved and unappropriated public lands of the United States in the State of Nevada, when such grazing will or does prevent, restrict or interfere with the customary use of such land for grazing live stock by" any person who, by himself or his grantors or predecessors, shall have become established, either exclusively or in common with others, in the grazing use of such lands by operation of law or under and in accordance with the customs of the graziers of the region involved; provided, that this act shall not prohibit the grazing on any part of such public lands of live stock owned, kept or used for work or milking purposes by any ranch owner or bona fide settler, for his domestic use, as distinguished from commercial use, nor prohibit the grazing of any live stock necessary for and used in connection with any mining or construction work or other lawful work of similar character. Customary or established use as graziers, otherwise than under the operation of law, as herein used, shall be deemed to include the continuous, open, notorious, peaceable and public use of such range seasonably for a period of five years or longer immediately prior to the approval of this act by the person or his grantors and/or predecessors in interest except in cases where initiated without protest or conflict to prior use or occupancy thereof. It is further provided that any change in such customary use so established shall not be made hereafter so as to prevent, restrict *427 or interfere with the customary or established use of any other person or persons.” Section 3 makes a violation of the act a misdemeanor punishable by fine or imprisonment in the county jail, or both, and provides for the recovery of damages. Section 4 prescribes: “The violation of any provision of this act may be restrained by injunction, issued by a court of competent jurisdiction, pursuant to the provisions of law and principles of equity relating to injunctions.” The act is an exertion of the police power of the state for the purposes declared in its preamble, of preventing controversies often leading to breaches of the peace, and of securing the peaceful and most economical use of the public lands of the state, by protecting the grazing uses established by customs based on the experience of graziers. We think the injunction is amply supported by the evidence. It is quite voluminous, and, while we have carefully reviewed all of it, we deem it unnecessary to more than outline it. Plaintiff acquired considerable land adjacent to Hanks creek basin by purchase from the receiver of the Union Land & Cattle Company in the latter part of the year 1925, and there engaged in the business of cattle raising. Substantially the same lands have been owned in turn by plaintiff’s predecessors in interest extending back to the firm of Mason & Bradley, whose ownership dates to about 1882. These owners were engaged extensively in the cattle-raising business, and all of them throughout their ownership used said Hanks creek basin and other adjacent public lands for summer and fall range for the grazing of large numbers of their cattle. This use was contemporaneous with the use of the waters of Hanks creek basin for the watering of such stock. The evidence shows, without conflict, that such use of the basin was practically exclusive until the defendant commenced bringing his sheep into the basin in 1909. Plaintiff’s immediate predecessors in *428 interest owned sheep as well as cattle. But the evidence discloses that the sheep were generally handled on ranges outside of Hanks creek basin, reserving the basin exclusively for their cattle, except in 1913, when sheep were sheared in the basin. Plaintiff, like his predecessors in interest, used the basin for the ranging of his cattle. He began such use in 1926, when he put 1,000 head of cattle on the range and leased the privilege to H. Moffat & Co. to range cattle in the basin. That company put out on the range, including Hanks creek basin, in that year, about 5,700 head of cattle. Plaintiff used Hanks creek basin seasonally thereafter for grazing purposes either with his own cattle or by leasing the privilege to other stockmen and sometimes in both ways. In 1929 he allowed H. Moffat & Co. to run 2,500 head of cattle on his range, and he put out 1.500 head. In 1930, in addition to the cattle of other stockmen grazing in Hanks creek basin under lease from him, he had 2,000 head grazing there. He made the same use of the basin in 1931. In 1932 plaintiff had 2.500 head of cattle on his range, and the number of cattle of other stockmen grazing there under lease from him had been reduced to less than 1,000 head. Plaintiff gradually increased the number of cattle grazing on the range as the cattle of other owners .accustomed to graze over it were withdrawn. The evidence brings plaintiff within the protection intended to be afforded by the statute of 1925; that is to'say, it shows that he has a subsisting right to water range livestock at the watering places in Hanks creek basin in sufficient numbers to utilize substantially all that portion of the public range readily available to livestock watering at such places, and that such portion of the public range included all of the disputed area. It is contended that the most proved was, the parties have a right in common as to the watering right and grazing use in that region. This is based upon the evidence which shows that the defendant commenced watering and grazing his sheep in that region in 1909, *429 which has continued since that date, and upon expressions in the court’s oral opinion to the effect that a right and use in common had been thus established as to the water and range. The trial court said, in its oral opinion: “This court is satisfied, from the evidence, that Hanks Creek Basin was used exclusively for cattle from 1882 to 1909, by the plaintiff’s predecessors in interest, and a stock watering right for cattle was established in Hanks Creek Basin over that period of years. And then the defendant began to use the Basin for his sheep, beginning the use there in about the year 1909; that plaintiff’s predecessors in interest then changed to a certain extent the use of the range and the water from cattle to sheep, for a period of time; and, as I interpret the evidence, this was presumably to hold the range as against the defendant, since the Court is satisfied that cattle and sheep cannot range together upon a given range to any benefit, and evidently this condition has continued to a greater or less degree as the years went by down to the present time. But the defendant has persisted in the use of the range in that Basin for sheep, while plaintiff’s predecessors used it for cattle and attempted to maintain it as a cattle range by protest and by grazing sheep to keep the defendant’s sheep off. This, in the Court’s opinion, changed somewhat the nature of the use of the water and the range and created a use in common, so far as the sheep of defendant and plaintiff’s predecessors in interest were concerned, but did not change the use with respect to the grazing of cattle. As the Court has indicated before, the Court considers that cattle cannot be really a common user upon the same range between cattle and sheep. The evidence disclosed that cattle were turned upon a range from the lands south and east of Hanks Creek Basin, and allowed to graze the Hanks Creek Basin. They were even pushed north' in what is known as Stud Basin, and ranged year after year from the year 1882, and, of course, with the exception of the change that the Court has referred to, that condition has continued over this period of years. And *430 since 1909 defendant has also grazed his sheep in Hanks Creek Basin, and, as the Court indicated, somewhat under protest by words and also by the Union Land & Cattle Company having sheep in there in order to compete with him. The Court is convinced that the defendant continuously used a portion of this range after he become established there.” Also, in the course of its opinion, the court said: “I believe, as a court of equity, I have the right to establish that boundary in accordance with the equities of the case, as they are presented under the evidence before the Court. In order to do this the Court considers it must take into consideration that the plaintiff and his predecessors established a right to graze sheep in the year 1909; and since cattle and sheep cannot be economically grazed on the same range there should be a division of the range in question based upon the priorities of the respective parties; that is, that the priorities should determine the amount of range to be allowed to each.” Proceeding on the theory indicated in the opinion, the trial court, as previously noted, divided the public range in Hanks creek basin by confining the injunction to only a major part thereof. The court having found as defendant contends, that a right in the waters and grazing use of the range in common had been established since 1909, its action in using the priorities of the parties as a yardstick to measure the same is attacked as arbitrary and unlawful. We think the court fell into error in concluding that such a right and use in common had been established. The establishment of a grazing use in the range in question by the defendant was never acquired under the provisions of the statute of 1931, under which he claims. One of the elements prescribed by the statute 'to constitute customary or established use as a grazier is that the use must be peaceable for the period required. As we have seen, the trial court itself stated that plaintiff’s predecessors in interest protested defendant’s use of the range by words and by having sheep in there to *431 compete with him. The evidence shows that, during the years after defendant commenced bringing his sheep into the basin, plaintiff’s predecessors in interest, and plaintiff, by their employees frequently ordering defendant’s herders from the disputed territory and by words to defendant himself, consistently protested defendant’s intrusion on the range. It is not necessary to show that breaches of the peace had been committed towards defendant or his herders to establish that his use of the basin with his sheep was not peaceable. There is another element that is essential to the establishing of a grazing use under the statute, which is absent in defendant’s case. Mr. Wright, plaintiff’s manager, testified that in 1927 he leased the grazing privilege in Hanks creek basin to defendant for that year for the sum of $1,000, and his sheep were grazed there during that year under that lease. One thousand dollars was deposited in the Elko bank by defendant to plaintiff’s credit on June 27, 1927. On the deposit slip it was noted that the sum was for “Hanks Creek Basin Feed.” The defendant’s testimony in explanation of this does not conform to our idea of substantial evidence. His grazing use of Hanks creek basin during the season of that year was in subordination of plaintiff’s use. This being so, there was no continuous grazing use of Hanks creek basin by the defendant, as required by the statute of 1931. However, independently of the act of 1931, we think plaintiff’s right to the use of the waters of Hanks creek basin for the purpose of watering stock, and the grazing use of the public range thereon, were established under the act of 1925. The court said, as previously stated: “This court is satisfied, from the evidence, that Hanks Creek Basin was used exclusively for cattle from 1882 to 1909 by plaintiff’s predecessors in interest, and a stock watering right for cattle was established in Hanks Creek Basin over that period of years.” This is supported by the evidence. This right was acquired by plaintiff. By virtue of the act of 1925, plaintiff’s use thereunder *432 became exclusive. As to defendant having acquired any right in the waters of Hanks creek basin in common or otherwise, under the 1925 act or otherwise, it is clear that he did not nor could not. He did not attempt to appropriate any of such waters prior to 1909. Consequently he could not. have initiated any right to the use of such waters without due application to the state engineer. This, it is conceded, was not done. The 1925 act has been held by this court to be a valid exercise of the police powers of the state. In re Calvo, 50 Nev. 125, 253 P. 671. Under its provisions, by reason of plaintiff’s subsisting right to the use of all the waters in Hanks creek basin, he could not be deprived of the grazing use of any portion of the public range readily available to the plaintiff’s cattle. It is not contended that such areas do not include the entire disputed territory. Consequently, the watering and grazing of defendant’s sheep within these areas would deprive plaintiff of the grazing use thereof, for, as the court said and the evidence disclosed, cattle will not stay on the range grazed by sheep. As defendant established no watering rights or grazing use in the disputed territory, it is difficult to see how he was prejudiced by the court’s declining to enjoin him from a part thereof. There is no merit in defendant’s contention that a right to the use of waters in the disputed territory was conveyed to him by the written agreement for the conveyance of lands, alleged in the complaint. Those lands are not in that area. Defendant contends that the court was not authorized to issue the injunction under the 1931 grazing act, because such act does not invest plaintiff with title to or estate in the public domain. Ordinarily courts of equity have no jurisdiction at the suit of another to restrain a person from grazing his livestock on such lands. No property right can be acquired by such use. All persons so using the public domain do it merely by sufferance of the federal government or, as it is sometimes designated by the courts, by virtue of an implied license. *433 This use is often alluded to as a right. It is not a right that the government of the United States has conferred, and these public range lands may at any time be withdrawn from such use or the use permitted only under government regulations, as in the case of forest reserves. Buford v. Houtz, 133 U. S. 320, 10 S. Ct. 305, 33 L. Ed. 618; Omaechevarria v. Idaho, 246 U. S. 343, 38 S. Ct. 323, 62 L. Ed. 763; United States v. Grimaud, 220 U. S. 506, 31 S. Ct. 480, 55 L. Ed. 563; In re Calvo, 50 Nev. 125, 253 P. 671. However, in the absence of government regulations, the state may regulate the use of the unreserved and unappropriated public domain within its borders. In re Calvo, 50 Nev. 125, 253 P. 671, and federal and state cases cited therein; McKelvey v. U. S., 260 U. S. 353, 43 S. Ct. 132, 67 L. Ed. 301; Bown v. Walling, 204 U. S. 320, 27 S. Ct. 292, 51 L. Ed. 503; Allen v. Bailey, 91 Colo. 260, 14 P.(2d) 1087, 1091. The court, in the last-cited case quoted approvingly from 50 C. J., p. 888, as follows: “As owner of the public lands the United States has the same right and dominion over them that any other owner would have, and may protect the same from depredation. Congress is vested by the constitution with the power to control and to make all needful rules and regulations with respect to the public domain, and the exercise of such power cannot be restricted by state legislation. But the states may also prescribe reasonable police regulations applicable to public land areas, insofar as such regulations do not conflict with congressional enactment or if congress has not acted.” In the exercise of this conceded power, the state may adopt such legislative means as are adapted to the end it seeks to accomplish, so long as they are within the scope of the constitution and not prohibited by it and are not arbitrary or unreasonable. Omaechevarria v. Idaho, supra; McKelvey v. United States, supra. By the 1931 grazing act, the legislature has determined that its purpose can be best accomplished *434 by securing in their use those graziers who have established themselves as such, by the continuous, open, notorious, peaceable and public use of said lands seasonally for a period of five years or longer immediately prior to the approval of the act. It has likewise determined that the remedy of injunction is one of the means best adapted to enforce the purposes of the act. We are of the opinion that it had power to confer upon courts of equity jurisdiction of a case arising under the statute notwithstanding no property right could be invaded by one violating the provisions of the act. It is well settled that the state, in the exercise of its police powers, may authorize courts of equity in proper cases to prohibit by injunction the violation of the provisions of an act of the legislature, though no property right is involved. Board of Medical Examiners of State of Utah v. Freenor, 47 Utah, 430, 154 P. 941, Ann. Cas. 1917e, 1156; Board of Medical Examiners v. Blair, 57 Utah, 516, 196 P. 221; Ex Parte Allison, 48 Tex. Cr. E. 634, 90 S. W. 492, 13 Ann. Cas. 684; McMillan v. Livestock Board, 119 Miss. 500, 81 So. 169; Rochester v. Gutberlett, 211 N. Y. 309, 105 N. E. 548, L. R. A. 1915d, 209, Ann. Cas. 1915c, 483; Clopton v. State (Tex. Civ. App.), 105 S. W. 994; Campbell v. Peacock (Tex. Civ. App.), 176 S. W. 774. In the case of Board of Medical Examiners v. Blair, supra, the law of Idaho under consideration was one granting to the board of medical examiners the right to institute a civil action to enjoin anyone from practicing medicine without a license. The act also defined what shall constitute the practice of medicine and made such practicing without a license a misdemeanor and provided a penalty therefor. It was held that the state, in the exercise of its police power, could confer upon courts of equity authority to enjoin the violation of the act. To the same effect is Board of Medical Examiners v. Freenor, 47 Utah, 430, 154 P. 941, 942, Ann. Cas. 1917e, 1156, in which a great deal of authority is cited supporting the rule. The court said: “Unless prevented *435 by some constitutional provision, which is not claimed, we think the Legislature had the power to change, abolish, or enact rules of equity, and hence are we of the opinion that the court, by reason of the statute, had jurisdiction to proceed as it did.” The court in that case quoted from the case of Allopathic State Board of Medical Examiners v. Fowler, 50 La. Ann. 1358, 24 So. 809, as follows: “The General Assembly, having the authority to attach prior conditions to the practice of medicine, was vested with the right to enforce enactments on that subject by prescribing penalties for violations of the same, either by fine, by imprisonment, or by civil remedies. The right to practice medicine being conditioned by law upon the prior obtaining of a certificate from a medical board, * * * plaintiffs were clearly authorized (under an act), when they had reason to believe that defendant was violating the law in this respect, to test the facts of the case through injunction.” If the object to be accomplished is conducive to the public interest, the legislature may exercise a large liberty of choice in the means employed to enforce an exertion of its police powers. Lawton v. Steele, 152 U. S. 133, 14 S. Ct. 499, 38 L. Ed. 385. The case of Allen v. Bailey, supra, is decisive of the point in question. A law of Colorado, known as the public domain range act, regulating the grazing of a certain extensive range as to cattle and sheep, provided for injunctive relief. A violation of the act was made a misdemeanor punishable by fine or imprisonment or both. The constitutionality of the act was upheld in the above case and the injunctive feature sustained. Speaking on the last point, the court said, in part: “Defendants chafe under the injunction and restraining order features of the act, but without reason. In this respect, it is an advancement over the Idaho statute, which does not contain such a provision, but injunctions are granted in instances too numerous to mention. * * * Language used in a liquor case, decided in Eilenbecker v. District Court Plymouth County, 134 *436 U. S. 31, 40, 10 S. Ct. 424, 427, 33 L. Ed. 801, is apropos. The court said: ‘Certainly it seems to us to be quite as wise to use the processes of the law and the powers of the court to prevent the evil as to punish the offense as a crime after it has been committed.’ See, also, Mugler v. Kansas, 123 U. S. 623, 673, 8 S. Ct. 273, 31 L. Ed. 205. The Colorado act in question may be said to give recognition to the adage that ‘an ounce of prevention is worth a pound of cure,’ and to withhold injunction in a proper case would deprive courts of one of their most powerful resources. ‘The power to punish for contempts is inherent in all courts.’ Eilenbecker v. District Court, supra, at page 37 of 134 U. S., 10 S. Ct. 424, 426, 33 L. Ed. 801, and we refer once more to the above quotation from McKelvey v. United States, wherein it is said that regulations to which the state power extends are ‘measures to prevent breaches of the peace,’ etc. (The italics are ours.) We do not find any feature of the 1929 act involved in this proceeding that merits our disapprobation.” As the injunction was authorized under the 1931 act, it is unnecessary to determine whether it was also authorized under the 1925 act. For the same reason it is unnecessary to determine whether the court erred in permitting testimony to be introduced as to the alleged oral agreement or whether it had jurisdiction to issue an injunction for the claimed breach thereof. We considered all other contentions made by defendant and found them to be without merit. The order directing the issuance of the temporary injunction is affirmed.