Golconda Cattle Co. v. United States

Our former decision in this case is reported in 201 Fed. 281 , 119 C. C. A. 519 . A rehearing was granted, and after its reargument, and a very careful reconsideration of the record, we are convinced that in two respects indicated in the former opinion the court was in error — one as to a matter of fact and the other of law. In regard to the latter, it was said in the opinion — following the decision of the Circuit Court of Appeals of the Eighth Circuit in the case of Homer v. United States, 185 Fed. 741 , 108 C. C. A. 79 — that the question of intent with which the fencing was done could not be considered by the court. A reconsideration of that question satisfies us that this court had held the reverse in the cases of Potts v. United States, 114 Fed. 52 , 51 C. C. A. 678 , and Hanley v. United States, 186 Fed. 711 , 108 C. C. A. 581 , and that the Supreme Court so held in the case of Camfield v. United States, 167 U. S. 528 , 17 Sup. Ct. 864, 42 L. Ed. 260 . In the opinion in the case of Homer v. United States, supra,' from which Judge Van Devanter, now a Justice of the Supreme Court, dissented, the court said:

Turning to the case of Camfield v. United States, 167 U. S. 518 , 17…

(dissenting). Upon the rehearing it was argued by appellant that in addition to the outside there were some inside fences upon appellant’s lands, and that appellant did not intend to give the court to understand that the fences maintained by it were only upon the outside of its lands. Inasmuch as the closest precision should control in arriving at the physical situation, the language of the former opinion should have referred to the fences maintained by appellant as situated not “only” upon the outside of appellant’s lands, but also as in part upon the inside of certain fields of appellant’s lands. The point, as I view it, is not.of special importance; but it should, of course, be made clear that there were some inside fences which served' to inclose certain portions of the appellant’s lands.

To make clearer the meaning of what I may say, I annex a reduced copy of the plat used in evidence before the lower court. The heavy shaded lines (purple on the original map) do not show openings found by the lower court to have existed at the time of the filing of the bill, but were intended to represent where additional openings would have to be made by the defendant company under the…