Mackay v. Uinta Development Co.
219 F. 116, 1914 U.S. App. LEXIS 1641, 135 C.C.A. 18 (1914)
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Rule of Law:
A private landowner who owns property in a checkerboard pattern with public lands may not sue for trespass a person who makes a reasonable and necessary crossing over the private land to access the public domain, as there is an implied license for the public to access and use such lands.
Facts:
- The Uinta Development Company owned the odd-numbered sections of land within a large tract in Wyoming, resulting from a railroad land grant.
- The United States government owned the intervening even-numbered sections, which remained part of the unoccupied public domain, creating a checkerboard pattern of ownership.
- The entire tract of land was open, unfenced, and primarily used for sheep grazing.
- Mackay, a sheep herder, needed to move his flock of approximately 3,500 sheep from his summer range north of the tract to his winter range south of it.
- The customary method for moving sheep involved allowing them to graze as they traveled approximately 10 to 12 miles per day.
- The Uinta Development Company served Mackay with a written notice, forbidding him from driving any livestock across its land.
- Despite the notice, Mackay proceeded to drive his sheep across the tract of intermingled private and public lands.
Procedural Posture:
- Uinta Development Company sued Mackay in a federal trial court for damages for trespass.
- Mackay denied the claim and filed a counterclaim for damages, alleging wrongful obstruction and prosecution.
- The case was tried by the court without a jury.
- The trial court made a general finding and entered a judgment in favor of the Uinta Development Company.
- Mackay, as the appellant, appealed the trial court's judgment to the United States Circuit Court of Appeals.
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Issue:
Does a sheep herder commit actionable trespass by driving his herd across a private party's unfenced, odd-numbered sections of land when such a crossing is necessary to access and traverse the adjacent, publicly-owned, even-numbered sections?
Opinions:
Majority - Hook, Circuit Judge
No. A person who crosses private land in a reasonable manner as a necessity to access public land is not liable for trespass. The federal policy ensuring public access to the public domain creates an implied license to cross interlocking private lands. The company's position, if sustained, would erect an impassable barrier to thousands of acres of public lands, effectively giving it exclusive use, which contravenes the purpose of the Unlawful Inclosures Act of 1885. This act prohibits not only physical fences but any method that works as a practical denial of access to public lands, including threats of trespass actions. Citing Buford v. Houtz, the court rejected applying the strict English common law of trespass to the unique context of open range lands in the American West, affirming that the public's right to use government land cannot be nullified by the checkerboard ownership pattern of a private entity.
Dissenting - Sanborn, Circuit Judge
Yes. Even if a right of passage exists, it does not grant the right to consume the landowner's resources without compensation. The evidence showed Mackay drove his sheep over a three-fourths of a mile wide strip of the company's land, consuming the vast majority of its grass. This act was not a reasonable crossing but a substantial taking of the company's property, for which the company is entitled to damages. Furthermore, the trial court's general finding for the company implicitly determined that Mackay's method of crossing was unreasonable. A right to cross does not equate to a right to depasture, and the company was entitled to recover damages for its consumed grass regardless of any right of way.
Analysis:
This decision establishes a significant limitation on a landowner's right to exclude, creating an implied easement or license by necessity for access to public lands. It affirms that the public policy codified in the Unlawful Inclosures Act of 1885 prevents landowners from using strategic ownership patterns, like the checkerboard grants, to create 'fictional fences' that obstruct access to the public domain. The case sets a precedent that balances private property rights against public access rights, creating a 'reasonableness' standard for such crossings. This impacts land use disputes in western states where checkerboard ownership is common, requiring courts to distinguish between reasonable transit and unreasonable appropriation of a private landowner's resources.
