siderations which must influence our judg- | ment, and which solve this doubt in favor of the proposition that such a suit cannot be sustained.

The original judiciary act of 1789, which established the courts of the United States, and defined their jurisdiction, declared in reference to the circuit courts, in section 11 of that act, (1 St. 78,) that the circuit courts shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity," where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the state where the suit is brought and a citizen of another state. The construction of this phrase, "where the suit is between a citizen of the state where the suit is brought and a citizen of another state," came before the supreme court, at an early day, in the case of Strawbridge v. Curtiss, 3 Cranch, 267, and Chief Justice MARSHALL delivered the opinion of the court, which was without dissent, in the following language: "The court understands these expressions [referring to the words 'suit between a citizen of the state where the suit is brought and a citizen of another state'] to mean that each distinct interest should be represented by persons all of whom are entitled to sue, or may be sued, in the federal courts. That is, that where the interest is joint each of the persons concerned in that interest must be competent to sue, or liable to be sued, in those courts. This construction has been adhered to from that day to this, and, although the statutes have modified the jurisdiction of the court as regards the amount in controversy, and in many other particulars, the language construed by the court in Strawbridge v. Curtiss has been found in all of them. This statute, conferring and defining the jurisdiction of circuit courts of the United States, has been re-enacted and recast several times since the original decision of Strawbridge v. Curtiss. The first of these was the general revision of the statutes of the United States passed in 1874, in which the language of the statute of 1789 is supposed to be reproduced accurately. But an act of March 3, 1875, (18 St. 470,) undertook to recast the jurisdiction of the circuit courts; and its first section, the important one in this connection, contains the same language in regard to the jurisdiction of the court in controversies between citizens of different states, and also the provision that no civil suit shall be brought in either of said courts by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving process. The statute remained in this condition until the act of 1887, which we are now considering, as amended by the act of August 13, 1888. 25 St. 433. During this period, and since the case of Strawbridge v. Curtiss, this jurisdictional clause has been frequently construed by this court, and that case has been followed. In the case of New Orleans v. Winter, Wheat. 91, the same question Brose, and was decided in the same way.

In the case of Coal Co. v. Blatchford, 11 Wall. 172, Mr. Justice FIELD, referring to these decisions, states the effect of them in the following language: "In other words, if there are several co-plaintiffs, the intention of the act is that each plaintiff must be competent to sue, and if there are several co-defendants each defendant must be liable to be sued, or the jurisdiction cannot be entertained. The question was very fully considered in the case of SewingMachine Cos., 18 Wall. 553, where the same proposition is stated in almost identical language. And in the case of Iron Co. v. Stone, 121 U. S. 631, 7 Sup. Ct. Rep. 1010, the chief justice reviews all these cases, and reaffirms the doctrine as applicable to cases arising under the act of 1875. The statute which we are now construing leaves out the provision that if the party has the diverse citizenship required by the statute he may be sued in any district where he may be found at the time of the service of process. The omission of these words, and the increase of the amount in controversy necessary to the jurisdiction of the circuit court, and the repeal of so much of the former act as allowed plaintiffs to remove causes from the state courts to those of the United States, and many other features of the new statute, show the purpose of the legislature to restrict rather than to enlarge the jurisdiction of the circuit courts, while, at the same time, a suit is permitted to be brought in any district where either plaintiff or defendant resides.

We do not think, in the light of this long-continued construction of the statute by this court during a period of nearly 100 years, in which the statute has been the subject of renewed legislative considera-' tion and of many changes, but has always retained the language which was construed in the case of Strawbridge v. Curtiss, that we are at liberty to give that language a new meaning when it is used in reference to the same subject-matter. It is not readily to be conceived that the congress of the United States in a statute mainly designed for the purpose of restricting the jurisdic tion of the circuit courts of the United States, using language which has been construed in a uniform manner for over 90 years by this court, intended that that language should be given a construction which would enlarge the jurisdiction of those courts, and which would be directly contrary to that heretofore placed upon it by this court.

These considerations require the affirmance of the judgment of the circuit court, and it is so ordered.

(133 U. S. 296)

ADAMS V. CONNER et al.

(February 3, 1890.)

BANKRUPTCY-PURCHASER FROM ASSIGNEE. Where a purchaser of land from an assignee in bankruptcy is put in possession, and is made a party to subsequent foreclosure proceedings in a state court which has jurisdiction of the parties and of the foreclosure of liens, he cannot maintain ejectment against one who purchases the land on such proceedings, and is put in possession, on the ground that the state court had no jurisdiction by reason of the bankruptcy proceedings, but the er ror, if any, can be corrected by appeal from the decree in foreclosure only.

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In error to the circuit court of the United States for the northern district of Alabama.

S. Watson, for plaintiff in error. Milton Humes, for defendants in error.

BREWER, J. This was an action of ejectment, and was submitted to the trial court upon an agreed statement of facts, which appears in he record. The contest is between a purchaser from an assignee in bankruptcy and a purchaser at subsequent foreclosure proceedings in a state court. The land was incumbered with liens at the time the bankruptcy proceedings were commenced. The title was not in the bankrupt, nor was the property surrendered by him to the assignee. Subsequently, however, the assignee sued the party in whose name the title stood, and recovered the land. Thereafter it was sold by the assignee, and the plaintiff in error became the purchaser. Such sale was for one-third cash, the balance on time; a lien being retained for the deferred payments. Upon this sale a deed was made, and the purchaser put in possession. The lienholders were not made parties to any proceedings in the bankrupt court. They never proved their claims there. After the conveyance by the assignee to the plaintiff in error, these lien owners commenced proceedings in the chancery court of the state to foreclose their liens, making the bankrupt, the assignee in bankruptcy, and the purchaser, among others, parties defendant. The assignee and the purchaser defended on the ground that the state court had no jurisdiction to ascertain and enforce liens upon property of a bankrupt which had passed into the jurisdiction of the bankrupt court, and by it been disposed of; but this defense was overruled, the liens declared, and the land ordered to be sold. An appeal was taken to the supreme court of the state, but it affirmed the decree. Pending the proceedings in the state chancery court, a bill was filed in the United States circuit court to enjoin those proceedings, but, after hearing, that bill was dismissed. After the affirmance by the supreme court of the decree of the chancery court the land was sold, and the defendants in error became the purchasers. Upon such purchase they received the ordinary deed, and were put in possession. Thereupon this action of ejectment was brought.

The regularity of the proceedings of the state court is not challenged. They were all subsequent to the proceedings in the bankrupt court, and were not commenced until after the title had passed away from the assignee in bankruptcy. The general jurisdiction of the state court is conceded. The purchaser, the plaintiff in error, was a party to that suit; and the claim of the plaintiff in error can only be sustained upon the theory that by reason of the bankrupt proceedings the state court was prevented from taking jurisdiction. But the truth is, the question is one of error, and not of jurisdiction. The state court had Jurisdiction of the parties; and they were served with process, and appeared. It had jurisdiction of the foreclosure liens; and it had a right to hear and determine whether the alleged liens still existed, and v.10s.c.-20

whether there was any valid defense to their enforcement. The property upon which the liens were claimed was not in the possession of the bankrupt court, but only in the possession of the party purchas ing from it. So, whether it erred in deciding that the lienholders had a claim upon the land, rather than upon the fund in the hands of the assignee in bankruptcy, is immaterial. It presented simply a matter of error. An error in its ruling did not oust it of jurisdiction. The error, if error it was, could be corrected only by appeal. The failure of the party to exhaust his remedy in that direction does not now entitle him to disregard the entire proceeding as without jurisdiction. Winchester v. Heiskell, 119 U. S. 450, 7 Sup. Ct. Rep. 281. We see no error in the ruling of the circuit court, and its judgment is affirmed.

(133 U. S. 320) BUFORD et al. v. HOUTz et al.1

(February 3, 1890.)

PUBLIC LANDS-PASTURAGE-INJUNCTION. 1. As there is a recognized public right of pasturage on the public domain which is left open, defendants cannot be enjoined from exercising such right by persons who own parcels of land detached and scattered through a large body of the public domain, and lying open, though thereby defendants' cattle will trespass on complainants' lands.

2. The common law of England, that every man must restrain his stock within his own grounds, is not applicable to the sparsely-settled portions of the west.

Appeal from the supreme court of the territory of Utah.

M. Kirkpatrick, for appellants. Jos. L. Rawlins, for appellees.

MILLER, J. *This is an appeal from the* supreme court of the territory of Utah. The bill was originally filed by the appellants in the third judicial district court of Utah territory in and for Salt Lake county, and in that court a demurrer was filed setting forth two grounds of objection to the bill-First, that it does not state facts sufficient to constitute a cause of action; and, second, that several causes of action have been improperly united, in this: that said complaint states a separate cause of action against each individual defendant, and nowhere states or attempts to state a cause of action against all of the defendants. This demurrer was sustained, and a decree rendered dismissing the bill at the costs of plaintiffs, and on appeal to the supreme court of the territory that decree was affirmed. The case is here on an appeal from that judgment. The complainants were M. B. Buford, J. W. Taylor, Charles Crocker, and George Crocker, copartners under the firm name and style of the Promontory Stock-Ranch Company. The defendants were John S. Houtz and Henry and Edward Conant, under the firm name and style of Houtz & Conant, the Box-Elder Stock & Mercantile Company, a corporation, and 20 individuals whose names are given in the bill. The plaintiffs allege that they are the owners of certain sections and parts of sections of land in the 'Affirming 18 Pac. Rep. 633.

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way for any of his or their sheep over said lands of plaintiffs, or any part thereof, except over and along the highways aforesaid; that they have not, nor has either of them, any right to graze or pasture any of his or their sheep thereon, or on any part thereof. (2) That, pending this action, said defendants and each of them, their and each of their agents, servants, and employes, be enjoined from driving any of his or their sheep upon any of said lands, except over and along said highways, or permitting any of them to go, graze, or pasture thereon, and that upon the final decree herein said injunction be made perpetual. (3) For such other and further relief as may be just and equitable, together with their costs in this behalf incurred.

The supreme court of the territory, in affirming the judgment of the court of the third judicial district, did not consider the question of the misjoinder of defendants, but rested its judgment upon the want of equity in the bill. It might be difficult to sustain a bill which, like this, united 15 or 20 different defendants, to restrain them from committing a trespass, where, if the parties are guilty or should attempt to commit the trespass, they do it without concert of action, at different times, in different parts of a large district of country such as here described, and each in his own way, and by his own action, or that of his servants. But, waiving this question, we are of opinion that the bill has no equity in it. The appellants being stock-raisers, like the defendants, whose stock are raised and fattened on the unoccupied lands of the United States mainly, seek by the purchase and ownership of parts of these lands, detached through a large body of the public domain, to exclude the defendants from the use of this public domain as a grazing ground, while they themselves appropriate all of it to their own exclusive use. This they propose to do, not by any act of congress or of any legislative body whatever, but by means of this bill in chancery, obtaining an injunction against the defendants, who they allege to be the owners of 200,000 sheep grazing upon these public lands, which shall exclude defendants from the use of them, and thereby secure to themselves the exclusive right to pasture their 20,000 head of cattle upon the same lands. If we look at the condition of the ownership of these lands on which the plaintiffs rely for relief, we are still more impressed with the injustice of this attempt. A calculation of the area from which it is proposed to exclude the defendants by this injunction, under the allegation that it is 40 miles in one direction and 36 in another, shows that it embraces 1,440 square miles, or 921,000 acres, all of which, as averred by the bill, is uninclosed and unoccupied except for grazing purposes. Of this 921,000 acres of land, the plaintiffs only asert title to 350,000 acres; that is to say, being the owners of one-third of this entire body of land, which ownership attaches to different sections and quarter sections scattered through the whole body of it, they propose by excluding the defendants to obtain a monopoly of the whole tract, while two-thirds of it is public land belonging to the United States, in which

the right of all parties to use it for grazing purposes, if any such right exists, is equal. The equity of this proceeding is something which we are not able to perceive.

It seems to be founded upon the proposition that while they, as the owners of the 350,000 acres thus scattered through the whole area, are to be permitted for that reason to exercise the right of grazing their own cattle upon all of the land embraced within these 1,440 square miles, the defendants cannot be permitted to use even the lands belonging to the United States, because in doing this their cattle will trespass upon the uninclosed lands of plaintiffs. In other words, they seek to introduce, into the vast regions of the public domain which have been open to the use of the herds of stock-raisers for nearly a century without objection, the principle of law derived from England, and applicable to highly cultivated regions of country, that every man must restrain his stock within his own grounds, and if he does not do so, and they get upon the uninclosed grounds of his neighbor, it is a trespass for which their owner is responsible. We are of opinion that there is an implied license, growing out of the custom of nearly a hundred years, that the public lands of the United States, especially those in which the native grasses are adapted to the growth and fattening of domestic animals, shall be free to the people who seek to use them, where they are left open and uninclosed, and no act of government forbids this use. For many years past a very large proportion of the beef which has been used by the people of the United States is the meat of cattle thus raised upon the public lands without charge, without let or hindrance or obstruction. The government of the United States in all its branches has known of this use, has never forbidden it, nor taken any steps to arrest it. No doubt it may be safely stated that this has been done with the consent of all branches of the government, and, as we shall attempt to show, with its direct encouragement.

The whole system of the control of the public lands of the United States, as it has* been conducted by the government under acts of congress, shows a liberality in regard to their use which has been uniform and remarkable. They have always been open to sale at very cheap prices. Laws have been enacted authorizing persons to settle upon them, and to cultivate them, before they acquire any title to them. While in the incipiency of the settlement of these lands, by persons entering upon them, the permission to do so was a tacit one, the exercise of this permission became so important that congress, by a system of laws called the "Pre-emption Laws," recog nized this right so far as to confer a priority of the right of purchase on the persons who settled upon and cultivated any part of this public domain. During the time that the settler was perfecting his title by making the improvements which that statute required, and paying, by install ments or otherwise, the money necessary to purchase it, both he and all other per sons who desired to do so had full liberty to graze their stock upon the grasses of

the prairies, and upon other nutritious substances found upon the soil. The value of this privilege grew as the population increased and it became a custom for persons to make a business or pursuit of gathering herds of cattle or sheep, and raising them and fattening them for market upon these uninclosed lands of the government of the United States. Of course, the instances became numerous in which persons purchasing land from the United States put only a small part of it in cultivation, and permitted the balance to remain uninclosed, and in no way separated from the lands owned by the United States. All the neighbors who had settled near one of these prairies or on it, and all the people who had cattle that they wished to graze upon the public lands, permitted them to run at large over the whole region, fattening upon the public lands of the United States and upon the uninclosed lands of the private individual without let or hindrance. The owner of a piece of land, who had built a house or inclosed 20 or 40 acres of it, had the benefit of this universal custom, as well as the party who owned no land. Everybody used the open, uninclosed country which produced nutritious grasses as a public conimon or which their horses, cattle, hogs, and sheep could run and graze. It has never been understood that in those regions and in this country, in the progress of its settlement, the principle prevailed that a man was bound to keep his cattle confined within his own grounds, or else would be liable for their trespasses upon the uninclosed grounds of his neighbors. Such a principle was ill adapted to the nature and condition of the country at that time. Owing to the scarcity of means for inclosing lands, and the great value of the use of the public domain for pasturage, it was never adopted or recognized as the law of the country, except as it might refer to animals known to be dangerous, and permitted to go where their dangerous character might produce evil results. Indeed, it is only within a few years past, as the country has been settled and become highly cultivated, all the land nearly being so used by its owners or by their tenants, that the question of compelling the owner of cattle to keep them confined has been the subject of agitation. Nearly all the states in early days had what was called the "Fence Law," a law by which a kind of fence, sufficient in a general way to protect the cultivated ground from cattle and other domestic animals which were permitted to run at large, was prescribed. The character of this fence in most of the statutes was laid down with great particularity, and unless it was in strict conformity to the statute there was no liability on the part of the owner of cattle if they invaded the inclosure of a party and inflicted injury on him. If the owner of the inclosed ground had his fence constructed in accordance with the requirements of the statute, the law presumed then that an animal which invaded this inclosure was what was called a "breachy" animal, was not such animal as should be permitted to go at large, and the owner was liable for the damages done by him. Otherwise the right of the owner

of all domestic animals to permit them to run at large, without responsibility for their getting upon the lands of his neighbor, was conceded.

The territory of Utah has now, and hasa always had, a similar statute,-section 2234 of the Compiled Laws of Utah. It is now a matter of occasional legislation in the states which have been created out of this public domain to permit certain counties, or parts of the state, or the whole of the state, by a vote of the people within such subdivisions, to determine whether cattle shall longer be permitted to run at large, and the owners of the soil compelled to rely upon their fences for protection, or whether the cattle owner shall keep them confined, and in that manner protect his neighbor without the necessity on the part of the latter of relying upon fences which he may make for such protection. Whatever policy may be the result of this current agitation can have no effect upon the present case, as the law of Utah and its customs in this regard remain such as we have described it to be in the general region of the northwest, and the privileges accorded by the United States for grazing upon her public lands are subject alone to their control.

These principles were very clearly enunciated by the supreme court of Ohio, in 1854, in the case of Kerwhaker v. Railroad Co.,3 Ohio St. 179. In discussing this question, the court expresses so well the principle which we are considering that we venture to make an extensive quotation from the opinion: "Admitting the rule of the common law of England in relation to cattle and other live-stock running at large to be such as stated, the question arises whether it is applicable to the condition and circumstances of the people of this state, and in accordance with their habits, understandings, and necessities. If this be the law in Ohio now, it has been so since the first settlement of the state, and every person who has allowed his stock to run at large and go upon the uninclosed grounds of others has been a wrong-doer, and liable to an action for damages by every person on whose lands his creatures may have wandered. What has been the actual situation of affairs, and the habits, understandings, and necessities of the people of this state, from its first settlement up to the present period, in this respect? Cattle, hogs, and all other kinds of live-stock not known to be breachy and unruly or dangerous have been allowed at all times and in all parts of the state to run at large and graze on the range of uncultivated and uninclosed lands. So that it has been the general custom of the people of this state, since its first settlement, to allow their cattle, hogs, horses, etc., to run at large, and range upon the uninclosed lands of the neighborhood in which they are kept; and it has never been understood by them that they were tort-feasors, and liable in damages for letting their stock thus run at large. The existence or enforcement of such a law would have greatly retarded the settlement of the country, and have been against the policy of both the general and the state governments. The common

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