Brandestein

This action is brought under the act of February 25, 1885, entitled “An act to prevent unlawful occupancy of public lands.” The first section is as follows:

The second section empowers the court before which the suit is brought, in case the inclosure shall be found unlawful, to make tbe proper order or decree for the destruction of the inclosure in a summary way, unless the inclosure shall be removed within five days after the order of the court.

The evidence in this case discloses that the defendants have erected a continuous fence on lands owned by them, or on odd-numbered sections of land within the limits of the grant to the Southern Pacific Railroad Company by the act of June 27, 1866, of wliich company they are licensees. This fence surrounds and incloses a large tract of land, in the center of which is an inconsiderable acreage of public land; but roadways are provided, and the fence furnished with gates, which are kept unlocked, and which afford access to the public land within the inclosure. The evidence further shows that, on January 8, 1867, the railroad company, in compliance with the provisions of the act of 1866, filed in the office of the commissioner of the…