Opinion of the Court-Budge, J. for subsistence; an extensive grazing ground; used on the great plains of the United States for a tract commonly of many square miles, occupied by one or by different proprietors, and distinctly called a cattle, stock, or sheep range. The animals on a range are usually left to take care of themselves during the whole year without shelter, excepting when periodically gathered in a 'round-up' for counting and selection, and for branding when the herds of several proprietors run together." A cattle range in this state has a well-defined meaning, and so has a sheep range; and this meaning is fully recognized by persons engaged in the two industries. While it might be possible for sheep to graze upon a cattle range, it is well known to all stock-growers that sheep and cattle will not range together, and that cattle and horses will not range on a sheep range. Thus legislation to protect sheep against cattle and horses is wholly unnecessary. It is also well known to stock-growers that cattle and horses have their accustomed range, to which they go, if permitted, of their own volition, and upon which they range, and where they can be found by the owners. It is a matter of common knowledge that horses and cattle are left upon a cattle range receiving but little care and attention during the summer months by their owners; while sheep are constantly under the care of herders and dogs. Moreover, that a camp-tender is employed in connection with the care and herding of sheep, among whose duties is the riding of the range for the purpose of locating suitable area upon which to drive, herd and graze the sheep of his employer. Sheep require much less water while grazing than cattle, and it therefore becomes necessary for cattle and horse owners to occupy portions of the public domain upon which there are streams and springs of water to which their animals may have ready access. The above are all very good reasons why it is imperative that the public domain within the jurisdiction of the state be properly regulated as between these two necessary and needful industries. Sec. 6872, Rev. Codes, is a police regula Opinion of the Court-Budge, J. tion, and to our minds it clearly appears that it was the intention of the legislature, in the enactment of said section, to preserve the tranquility of the citizens of the state; to avoid "range wars"; and to promote the peace, quiet and general welfare of the citizens. This statute must necessarily be construed with, and as a part of, sec. 6314, Rev. Codes, which latter section provides: "In every crime or public offense there must exist a union, or joint operation, of act and intent, or criminal negligence." In other words, there must be an intent to violate said sec. 6872, supra, as well as the act of driving or herding sheep upon a cattle range; or the failure upon the part of the defendant by the exercise of ordinary diligence to ascertain whether or not the range upon which he drives, herds and grazes his sheep is a cattle range within the meaning of said section. The appellant insists in his argument that sec. 6872, Rev. Codes, is void because it fails to describe the exterior limits of a cattle range, and for that reason it is impossible for a citizen herding sheep to determine when he has crossed the exterior limits of the cattle range. The statute says: "The priority of possessory right between cattle and sheep owners to any range, is determined by the priority in the usual and customary use of such range, either as a cattle or sheep range." Priority of possession, or priority of right, or the first in time is the first in right, are all common, ordinary, every-day expressions and have a welldefined meaning. The priority of right to the use of the range as between cattle and sheep owners depends upon the prior use in the usual and customary manner. Thus, if the range is used by cattle owners and has been so constantly used prior to its use by sheep owners, the right to the use is established by proof of such priority. Where the owner of sheep knows, or by the exercise of ordinary care is able to ascertain, that a certain given area of the public domain has been used and is then being used as a cattle range, and he wilfully and knowingly herds, drives and grazes his sheep upon such cattle range, it then becomes Opinion of the Court-Budge, J. his willful and unlawful act or trespass, and he is clearly amenable to the statute. These being questions of fact, are for the jury to determine, the same as would be the questions of fact in any other ordinary criminal prosecution. The intention to commit the act, as well as the commission of the act, are necessary and essential ingredients of the crime; and if both are established by competent evidence, under proper instructions, such as from our examination were given in this case, in our opinion, the verdict of the jury should not be disturbed. We think we have disposed of the question that a cattlegrower can arbitrarily fix the limits or boundaries of the range. Both the limits and boundaries of the range are determined by priority of possession and use of the range by the cattle-grower in the usual and customary use of a cattle range, and are questions of fact for the jury. The cattle-grower can neither enlarge nor diminish the area at will; but must establish by competent evidence and beyond a reasonable doubt that the defendant in charge of the sheep wilfully and unlawfully herded, grazed or pastured them upon a cattle range, as heretofore defined; that said range had been previously occupied by cattle, or was occupied by cattle-growers either as a spring, summer or winter range for their cattle, and that they, or their predecessors in the cattle business, had made the usual and customary use of such area of country as a cattle range, prior to any use thereof, in the usual and customary manner, as a sheep range, and that said range had not been abandoned as a cattle range; and that the defendant knew, or had information from which a reasonable man under like circumstance would have known, that he was herding, grazing or pasturing sheep upon a cattle range previously occupied by cattle in the usual and customary use of such range, and that sheep had not been herded, grazed or pastured upon said range prior to said time in the usual and customary use of said range. The character and area of a cattle range are to be determined by its priority of use in the usual and customary manner as such. Opinion of the Court-Budge, J. We agree with learned counsel for appellant and those who appeared as amici curiae that all criminal statutes should be certain and definite in their terms, and commend the zeal and effort displayed by counsel in behalf of the appellant in their presentation of this case. And we are frank to admit that sec. 6872, Rev. Codes, is not as certain and definite in its terms as are the more recent statutes covering the police power. However, we have reached the conclusion that in view of the peculiar conditions existing in this state prior to the enactment of that statute (as recited in the various opinions of this court and referred to in the case of State v. Horn, supra), occasioned by a sharp conflict between the sheep and cattle industries and between the sheep and farming industries, it was properly deemed necessary by the legislature, in order to promote the general welfare, peace, quiet and tranquility of the citizens, to enact such a statutory provision regulating the use of the public domain within the jurisdiction of the state. From the conclusions we have reached, we are of the opinion that sec. 6872, Rev. Codes, is not void for indefiniteness and uncertainty, and that it does not permit the cattlegrower to arbitrarily fix the limits or boundaries of the cattle range. Whatever hardships, if any, are imposed upon either the stock or sheep industry by reason of this law are to be remedied by the legislative and not the judicial branch of our state government. The judgment of the lower court is affirmed. Sullivan, C. J., and Morgan, J., concur. Petition for rehearing denied. INDEX-VOL. 27. ACCOMPLICE TESTIMONY. AFFIDAVIT FOR PUBLICATION OF SUMMONS. See Process, 1. AGENCY. See Principal and Agent. AMENDMENTS. See Pleading, 4, 5. ANTI-NEPOTISM LAW. See Officers, 6-18. APPEAL AND ERROR. Time for Appeal. 1. Sec. 4807, Rev. Codes, as amended by chapter 111, Session Notice of Appeal. 2. Under the provisions of sec. 4808, Rev. Codes, the notice of 3. Under the provisions of sec. 4808, Rev. Codes, the notice of 4. Sec. 4808, Rev. Codes, provides the manner of taking an (809) |