Show DENIED the cannot be swept 08 laud tuesday morning in the third district court judge zano rendered a decision in the case of M B buford et al vs john S koutz et al in this case the promontory stock company sought by injunction to keep ir houtz and a score of other defendants from driving their sheep over the stock companas comp anys lands to the sections owned by the government the promontory cattle company have purchased a largo tract of railroad land in lux elder comity the railway lands are tho even numbered section tho alte mato sections still belonging to the public domain through this purchase they became the owners of alio railroad lands in a tract of country stretching forty miles north and south and thirty six miles east and west the government lands which were included in this area foot up to more than acres the claimed that they had a right to the use of the public lands and also to pass over the companas comp anys lands to get there of course the sheep nipped the herbage oh the stock companas comp anys lands in crossing and as the company could not fence except in single sections for that would enclose government lands an application was made asking that the sheep men bo compelled to keep off kho tract altogether audgo zane reviewed the facts in the case and said the question was do the facts alleged present a case in which the court should issue an injunction would it be equitable to 10 lo so tho effects of such an injunction upon all parties not only the plaintiffs and defendants but the public mut be considered to determine whether the remedy is equitable the court must ascertain tho effect upon these parties and upon tho government one effect would bo to secure to tho plaintiff tho executive right to tho usa of its own lands another effect would be to give the plaintiff the exclusive right to use tho public lands for the purpose of passing from one tract of its lands to another and to graze thereon to that extent it is impossible to doivo cattle or sheep over grazing land without allowing them to nip the grass this injunction would give to the plaintiffs the exclusive use of plaintiffs land and also of the public land and would de drive the defendants of a right which they enjoy in common with all citizens to graze their tock on public lands a usage established from the origin of this government giving to all a common right to graze stock on public lands unenclosed it may be regarded as an implied license and is a substantial right enjoyed by stockmen stoc kmen the plaintiff asks in consequence of the impracticability of its lands that defendants and all oth 1 ors bo deprived of the right to the use of acres of public land it asks that tho public who wish to travel from north to south shall pass around ag miles in going from east to west to pass around a block of land 10 miles while it admits that the government will not permit the enclosure of public lauds by fence it asks the court to fence this land 36 by 40 miles with an injunction asks i hat tho government will keep watch and warn all persons to keep off this land on pain of punishment aro the legal rights of the plaintiff so connected with legal rights of the government and all others who have a right to the public lands that a court of equity may secure to it its rights or are its rights so complicated that to apply the remedy asked for would bo unjust the government must extend equally to each man his rights so far as it can if aliis injunction is issued it secures to the plaintiff the right to its own land and also the exclusive right to the use of the government land and deprives the defendants and all others of a right which they possess and it further imposes groat hardship on all dersons driving this class of stock rom one section of country to another in compelling them to go around a track thirty six by forty miles equity follows the law the law owing to its unyielding rule is co secure to every man his rights equity is more flexible and is intended to secure to the citizen those legal rights that he cannot otherwise secure but it appears that here is a nase where the rights of one party cannot be given without invading the rights of others and being partial to give the plaintiff the exclusive right to acres of government land would be unequal and unjust if the plaintiffs could make roadways or by monuments designate its lands and allow passageways eways a court of equity could ano in and aid therein the parties horo cannot however enjoy their rights without trespassing tres passing on sach other and on the land to which tho public has an equal right the plaintiffs knew how this land was situated when government made this magnificent donation to the railroad it did nofa intend to give the other sections to the railroad and deprive tho public of the use of the public land the plaintiffs knew this situation when they purchased this land in view of all the effects of an injunction I 1 am disposed to hold shafa equity should leave the parties where the law does leave them to their legal remedy the government has not done all that it should for the public lands there should bo some method for parties to obtain the use of these lands the grazing lands are becoming occupied and there is considerable crowding and feeling between battlo and sheep owners congress should arrange for the use of public lands by those who are willing to pay for it the injunction is denied |