HD 
 
 171 
 
 A4 
 
 W52 
 
 1912 
 
CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
WESTERN BOUNDARY OF YOSEMITE NATTONAL'IPARK 
 
 HEARINGS 
 
 BEFORE THE 
 
 COMMITTEE AND SUBCOMMITTEE 
 ON THE PUBLIC LANDS 
 
 HOUSE OF REPRESENTATIVES 
 
 MARCH 20, 1912 
 ON 
 
 H. R. 21954 
 
 STATEMENT BY 
 
 HON. JOHN B. CURTIN 
 
 OF SENORA, CAL. 
 
 WASHINGTON 
 
 GOVERNMENT PRINTtNG OPFIOE 
 
 1912 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924009301569 
 
WESTERN BOUNDARY OF YOSEMITE NATIONAL PARK. 
 
 Committee on the Pi'bijc Lands, 
 
 House of Representatives, 
 March 20, Wli—ll o'doclc a. m. 
 
 The coniniittee this day met, Hon. Edward T. Taylor (chairman) 
 presiding. 
 
 The Chairman. I may say, gentlemen of the committee, that the 
 Secretary of the Interior telephoned to my office about an hour ago 
 and said that he would have up here this morning a supplemental 
 report, or a supplemental letter, on the tliree-ycar homestead bill 
 which we would like to have to consider before we take up the bill. I 
 expected to have them here now. 
 
 Mr. Raker. There are seven or eight members of the committee 
 present now, and as Senator Curtin is here and wants to make a state- 
 ment in relation to bill H. R. 21954, which the reporter can take 
 down, I would like to have him given that opportunity while we are 
 waiting for this other matter. That is vdth reference to bill 21954. 
 
 STATEMENT OF SENATOR JOHN B. CURTIN, OF SENORA, CAL. 
 
 Mr. Curtin. Mr. Chairman and gentlemen, I will endeavor to be 
 just as brief as I can. The purpose of this bill is to change the western 
 boundary line of the Yosemite National Park, and exclude therefrom 
 certain portions of territory incluiled in the Yosemite National Park, 
 bringing that land under the jurisdiction of the Interior Department. 
 
 The Chairman. What is the object of that bill? 
 
 Mr. Curtin. The purpose of this bill, gentlemen, is to change the 
 western boundary of the Yosemite National Park, excluding there- 
 from a certain portion of that territory, bringing that land under the 
 jurisdiction of the Agricultural Department — the one being under 
 the control of the Agricultural Department and the other one, the 
 park, being under the control of the Interior Department. The park 
 was created October 1, 1S90, by the ceding of lands, and three times 
 since that time the Government has recommended the change of those 
 boundaries, so as to get them to conform to natural boundary lines. 
 You may notice here the yellow lines, which were the boundary lines 
 of the original park. They changed those lines and brought the 
 boundary line in here [indicating]. They changed the boundaries on 
 the eastern side to follow the natural boundaries, and they did the 
 same on the southeast side, and on the southwest side in here [indi- 
 cating] throughout all of that land. 
 
 Mr. Raker. The red line is the present boundary? 
 
 Mr. Curtin. The red line is the present boundary as you can see 
 that line, and then there are owners of private lands there. Look at 
 that for a boundary line. They are in the forest reserves, and the 
 Forestry Service desires to have this change made. 
 
4 WESTERN BOUNDARY OF YOSEMITE NATIONAL PARK. 
 
 Mr. Pickett. What do you want to change ( 
 
 Mr. CuETiN. This is a corresponding map. They are both made 
 by the Government, the one snowing the land sectionized, and the 
 other not. 
 
 Mr. Pickett. Where is it now ? 
 
 Mr. CtnRTiN. It is now on the black line this way [indicating]. The 
 reason, you understand, is to follow the natural boundary line, and 
 nothing would interfere with that. This is not the national forest. 
 AU outside of these heavy blue lines is not national forest. Originally 
 it was in the park, as you can see, but owing to the fact that there 
 were private holdings there the Government recommended the change 
 and threw them out. We want to follow this line [indicating], the 
 natural boundary line. 
 
 Mr. Pickett. How would tliat bring about tlic change/ 
 
 j\Ir. CuRTiN. It is only a chaniic in the jurisdiction. That is all. 
 Tliis blue mark [indicating], right here, on this maj), the northeast 
 quarter of section '23, on which there is a grove of big trees, and on the 
 southeast quarter of the southeast quarter of section 7, (in which tliere 
 is also a grove of big trees, as indicated on the map. There are private 
 parties holding this land inside of this crooked line [indicating]. The 
 rules of the National Forestry wServicc arc entirely different from those 
 applying elsewhere, and the owners <if land in the national forest can 
 not get on them. 
 
 Mr. Pickett. Do you want to throw more of it into the national 
 forest % 
 
 Mr. CuKTiN. Yes, sir. TlieSecretary of the Interior stated that the 
 only objection was that it wouldn't leave the body of the land com- 
 pact; but you can see it can not be held compact, because this is all 
 private propertj^ [indicating]. As it exists now, the Government can 
 not fence its own lands, because it can not get on that patented land. 
 It can not put a fence on my land. 
 
 Mr. Pickett. Does this involve getting that private land? 
 
 Mr. CuRTiN. It was all patented years ago. 
 
 Mr. Pickett. Is it going to be acquired by the Government in any 
 way ? 
 
 Mr. CunTiN. It would be against all Government pohcy to buy that 
 land. 
 
 Mr. Fergtjsson. The idea is to place the owners of these private 
 lands under the jurisdiction of the Forest Service, rather than under 
 the jurisdiction of the Interior Department l 
 
 Mr. CuRTiN. Yes, sir. 
 
 Mr. Raker. So that you will be permitted to use this land for graz- 
 ing purposes % That is the condition, isn't it % 
 
 Mr. OuRTiN. That is the condition exactly. 
 
 Mr. MoNDELL. The Government coukln't set aside any land for 
 that purpose if it didn't have any land to graze upon % 
 
 Mr. Cltrtin. This land in here is land which doesn't belong to the 
 park at all, which lias no scenic beauty whatever. 
 
 The Chairman. Couldn't it even be honiesteaded? 
 
 Mr. CtTETiN. No, sir. 
 
 The Chairman. I know, but the way it is now, couldn't it be 
 homesteaded % 
 
 Mr. CuETiN. The land isn't worth it. 
 
 Mr. MoNDELL. What is the present boundary of the National park ? 
 
WESTERN BOUNDARY OF YOSEMITE NATIONAL PABK. 5 
 
 Mr. CuRTix. This heavy bhio Ime. 
 
 Mr. MoNDELL. This heaw blue line here doesn't go up there at 
 aH« 
 
 Mr. CuRTix. It goes right along up there. 
 
 Mr. MoxDELL. You haven't cju ried it far enough. 
 
 Mr. CuRTiN. 1 didn't carry it because this is the only part in con- 
 troversy [indicatuig]. Here is the balance of it. This is the latest 
 map. That includes this, and excludes this in here [mdicating]. 
 
 j\lr. MoNDELL. That is now 
 
 Mr. CuRTix. The Yosemite National Park, in those red lines. 
 
 Mr. MoxDELL. You are carrying out here the area of the proposed 
 exclusion ^ 
 
 Mr. CuKTix. And throwing it into the National forest, in which 
 this excluded land was placed. 
 
 Mr. MoNDELL. On the theory that it contains no scenic beauty? 
 
 Mr. C'uRTiN. Yes, sir; on that theory, and on the further theory 
 that the Foiestry Department in here, and the Interior Department, 
 have these rules whereb}'', if any person gets over from the forest on 
 to the park land, they are immediately notified that they must be 
 excluded. The Forestry Department does not recognize private 
 o^vnersMp at all, and the very moment one gets in there they are 
 excluded. And the result was that I had to go to the Sujireme ("ourt 
 of the United States in order to pi-otect my riglits, and I beat the 
 Government in that suit. I have the decision here with me. 
 
 Mr. MoXDELL. Why were the boundaries of the national forest 
 originally carried along these irregular lines (o the east / 
 
 Mr. CuRTix. For the reason that this mark here indicates the 
 northeast quarter of section 23, wliich comprises the Mercedes grove 
 of big trees. 
 
 Mr. MoNDELL. Belonging to the Government ? 
 
 ilr. CuRTix. Belonging to the Government; and this other one, 
 40 acres in section 7, that is the Tuolomne grove of big trees. Aside 
 from this, you will notice that that is all patented. The public road 
 passes through both of those sections. The Government can not 
 fence the land, because it can not follow those park lands. 
 
 Mr. MoxDELL. The Government could fence that 160-acre tract? 
 
 Mr. CuRTix. Yes, sir. 
 
 Mr. MoNDELL. And that 40-acre tract? 
 
 Mr. CuRTiN. Yes, sir. 
 
 Mr. MoNDELL. That is all it has ? 
 
 ilr.CuRTix. Yes, sir. 
 
 Mr. MoNDELL. So that the Government could fence its land? 
 
 Mr. CuRTiN. Yes, sir. 
 
 Mr. MoNDELL. What "\'ou mean is the Government couldn't fence 
 in the park boundaries ;' 
 
 Mr. CuRTiN. Yes, sir. 
 
 Mr. MoxDELL. Could the Government fence public land with a 
 highway running through it ? 
 
 Mr. CuRTiN. It would have to put a public fence on each side, be- 
 cause the road cuts through the grove. 
 
 Mr. Fekgusson. Is tlie Agricultural Department and the Interior 
 Department in favor of this ? 
 
 Mr. CuRTiN. The Agricultural Department is. 
 
 Mr. Fergussox. How about the Interior Department ? 
 
6 WESTERN BOUNDARY OF YOSEMITE NATIONAL PARK. 
 
 Mr. CuRTix. I haven't taken it up with the Interior Department. 
 You cau not fence that land in there owing to the steepness of the 
 hills. I call your attention to the report here by the acting super- 
 intendent of the Yosemite National Park to the Secretary of the 
 Interior for the year 1908, in which he uses this language, and it is 
 repeated right through j'ear after year. 
 
 Mr. Raker. On what page "^ 
 
 Mr. CuRTiN. On page S: 
 
 It is again recommended that the western boundary of the park be fenced, using 
 therefor barbed wire and international steel posts. There has been no trouble this 
 year from trespassing of cattle or other stock, except upon a portion of the western and 
 southwestern boundary. It is practically impossible to protect the entire western 
 line with the few outposts that can be established, and there result some friction with 
 owners of cattle that are permitted to graze in the forest reserve immediately up to 
 the boundary, ).>ut are not allowed to graze within the park. All of this friction could 
 be easily avoided by the construrtion of a fence as suggested. It would require about 
 50 miles of fence, which could readily be put up at a cost of not more than 810,000; 
 and it is believed that this would be one of the wisest measures that could be adopted 
 for the prevention of friction and misunderstanding with cattlemen. 
 
 That was the report in 1908, and he repeats the same proposition 
 again in almost the identical language in 1909, an<l the same again 
 in 1910, and then he doesn't make the recommendation in 1911. 
 
 Mr. Pickett. Have you a letter here from the Department of 
 Agriculture ? 
 
 Mr. Ctjetin. No; I have not. 
 
 Mr. Pickett. Where is that report ? 
 
 Mr. Cuetin. There has been no report in writing. I went with 
 Capt. Adams himself to the Interior Department, to the Assistant 
 Secretary, and they said in my presence tliat there is no objection to 
 this part of it. 
 
 Mr. Pickett. Do thej' confirm that by letter to the committee? 
 
 Mr. Cxjktin. I think there is no question about that. I think the 
 only thing is that they do not like to he put in the attitude of quar- 
 reling with the Interior Department. Capt. Adams went over there 
 with me to interview the Assistant Secretary. 
 
 Mr. Pickett. What does the Interior Department say ': 
 
 Mr. CuRTix. That the matter would undoubtedly be referred to 
 Maj. Forsythe, superintendent of the park, for his report thereon. 
 
 Mr. Pickett. And what would he say about it '( 
 
 Mr. CuRTiN. I talked with him just' before I left — over the tele- 
 phone — and he said that he had a great deal of sympath}- for us peo- 
 ple endeavoring to settle this friction up there. The cattlemen 
 referred to — they are all small holders in there that own this land — 
 and there is constant friction there between the Department of Agri- 
 culture, through the Forest SerAace, and the Interior Department. 
 In other words, if a soldier on watch there fuids one animal on this 
 land he reports them as being inside of the park. They went so far 
 as to deny me access to that land at all, and I brought suit and won 
 it, and the holding was that the Secretary of the Interior has no 
 power to interfere with the private lands. 
 
 Mr. MoNDELL. You say that if any change is to be made, the bound- 
 ary lines should follow the natural boundaries '. 
 
 Mr. CuRTiN. The natural boundaries. 
 
 Mr. MoNDELL. As fixed by the topography of the country I 
 
 Mr. CuRTiN. Yes, sir. This much is not, but my purpose in doing 
 that was if we had to go to the extreme of doing it, it is our desire to 
 
WESTERN BOUNDARY OF YOSEMITE NATIONAL. PARK. 7 
 
 keep awAy from the Yosemito National Park. The original, you will 
 notice that you strike Cascade Creek. It is a rough creek, and noth- 
 ing can get across excepting in one place. Then you strike the 
 boundary line here, which is a natural watershed [indicating]. And 
 this is a high precipitous mountain, over which nothing could go 
 [indicating]. And following again you will notice the watershed 
 forms the natural boundary. This is probably the natural boundary 
 in there [indicating], and that is what they did here [indicating], 
 
 Mr. Raker. Is there any scenic beauty in that particular part ? 
 
 Mr. CuRTiN. Absolutely none, and I say that without fear of con- 
 tradiction of anyone, but no human being has gotten into that 
 country, exce])t one or two of us going in there to see if anything had 
 strayed in there ; there is no fishing, there is no hunting, or timber, or 
 anything else in hero. Simply rough mountains and ridges in there. 
 
 Mr. RuBEY. What territory are yovi referring to now, when you 
 say there is nothing in it ? 
 
 Mr. CuRTix. This territory here [indicating]. There [indicating] 
 gentlemen, is where the scenery is, and that is the grandest scenic 
 beauty I ever saw. 
 
 Mr. Raker. To the east and south? 
 
 !Mr. CrRTix. I don't think there is any spot which for scenic 
 beauty can excel that, in the forest reserve. There is no desire to do 
 anj^hing except for the purpose of ending the friction. 
 
 I desire to call your attention as to how the superintendent of the 
 park had reported upon this matter to the Secretary of the Interior, 
 which is made a part of this decision here rendered on November 20, 
 1911. The Supreme Court quotes from his language: 
 
 The following from the report of the superintendent of the park to the Secretary of 
 the Interior for the year 1901 was put in evidence: 
 
 "After due consideration, based upon the best evidence I have been able to obtain, 
 I can see no objection to property owners, and those holding leased land within the 
 park limits grazing cattle near their own premises under the supervision of the park 
 authorities. ' ' 
 
 That simply shows you that there is nothing there to injure the 
 Government. The soldiers recognize no man's patent^ and conse- 
 quently they take everything they can from him. They did that 
 with me, and I said that I would fight it out. 
 
 The concluding language of the court is as follows : 
 
 We, however, rest our decision on the ground of the want of power of the Secretary 
 or the superintendent to limit the uses to which lands in the park held in private 
 ownership may be put. 
 
 Mr. MoxDELL. All of this land here [indicating] is under private 
 ownership, save and except the two groves of 160 acres and the other 
 of 40 acres and two other little tracts ? 
 
 Mr. CuRTiN. Yes, sir. This is my own property here. It was 
 State school land, but it is patented land now. 
 
 Mr. Volstead. Is there any mineral on this land ? 
 
 Mr. CuRTiN. Not that I am aware of. I don't think there is a 
 mining claim of any kind; I don't think there is any holding of any 
 kind in there except homesteads and timber claims. 
 
 It has been suggested that there may be some desire on the part of 
 the Government to buy this land from us. Why should the Gfovern- 
 ment, after we have waited for 20 years, buy that land, when they 
 are selling this very property in the Forest Department ? That is all 
 
8 WESTERN BOUNDARY OF YOSBMITE NATIONAL PABK. 
 
 mature timber, and the Forest Department advertises for sale because 
 of its maturity. 
 
 Mr. Pickett. I do not understand just what land you own^ there. 
 
 Mr. CuRTiN. That is here, section 16, this red here in section 28. 
 Then all this land out in here, yellow. 
 
 Mr. MoNDELL. The various private owners own all the land shown 
 in coloring ? 
 
 Mr. Ctjrtin. Yes, sir. 
 
 Mr. Pickett. The purpose of it is to put that portion of it within 
 the forest reserve ? 
 
 Mr. CuRTiN. Yes, sir; and the bill provides, in its last section, that 
 the big-tree groves are still retained in the park and subject to all of 
 the rules just as they have been. 
 
 Mr. Pickett. It looks to me as if it properly belongs in the forest 
 reserve. It doesn't look to me as though they ought to have private 
 lands in the public parks. 
 
 Mr. Ctjrtin. As a consequence they can not get over the line. 
 
 Mr. Raker. What is the real crux of the difficulty ? Why do you 
 want to ask tliis land to be excluded from the national park and put 
 into the national forest? Just exjiiain that to the committee. 
 
 Mr. Curtin. There are two reasons. First, it is impracticable to 
 fence this land according to the legal subdivisions. Second, if we 
 should go to the enormous expense of doing that, the GoA^ernment 
 would not get what it desires, because we would have fenced it all in. 
 
 Mr. Mondell. What advantage docs the National Government 
 obtain from the national-park standpoint in hailing that area, prac- 
 tically all of that private ownership, within a national park? 
 
 Mr. Curtin. Absolutely none whatever. The Government isn't 
 injured one iota hy this change, but on the contrary it is benefited 
 in this, that it gives the Forest Department control of that, and a 
 rental would be obtained, and there would be no friction between 
 the two departments. 
 
 Mr. Mondell. Now, that part seems to be very clear — sections 13, 
 18, 17, and 23. Now, as to excluding all of that considerable area on 
 the middle and south forks of the 'Tuolumne — of course personally 
 it is immaterial to you just how much is excluded there, providing 
 you get far enough back not to interfere with the private holdings ? 
 
 Mr. Curtin. Yes, sir. 
 
 Mr. Mondell. Of course we don't want to get far enough back to 
 exclude from the park any ground that is useful for national park 
 purposes ? 
 
 Mr. Curtin. I concur with you on that. 
 
 Mr. Mondell. You feel confident that the natural drainage and 
 following the tops of the mountains here would serve the purpose of 
 the Government better than any other lines that could be drawn ? 
 
 Mr. Curtin. Yes, sir; because there is no scenic beauty within here 
 whatever. Yes, sir; so far as I am concerned, if it followed the town- 
 ship lines in here it would be all right, but we have desired to avoid 
 this friction and to run this along the natural boundary. If we faded 
 to do that, we were going to fence that ourselves. It will be utterly 
 impossible to maintain it there [indicating], because the snow at that 
 point gets 18 to 16 feet deep. 
 
 Mr. Mondell. The north and south line between townships 20 
 and 21 would, of course, accomplish all that ytni have proposed, but 
 
WESTERN BOUNDARY OF YOSEMITB NATIONAX, PARK. 9 
 
 you feel that the further exchision following the natural drainage 
 lines would be more advantageous * 
 
 Mr. CuRTiN. It would; but faiUng in that we will haAc to do the 
 other, but it is utterly impossible to keep a fence up there. 
 
 In conclusion, I want to call your attention to the language which 
 I referred to a minute ago of the acting superintendent of the Yose- 
 mite National Park in liis report to the Secretary of the Interior in 
 1911, where he saj^s, on page 6 of his report: 
 
 No sheep or stock have been herded through the park, and there haa been much 
 more trouble with cattle and friction with cattle owners on the west side than in pre- 
 vious years. The few cattle that drifted in from the forest reserve on the west side 
 were quickly removed, but the owners were nevertheless reported to the forest super- 
 visor for violation of the conditions of their grazing permits. 
 
 According to the present rules, if a man gets permission fi'om the 
 Forest Service to graze his cattle, if those cattle get into the park 
 the park authorities notify the Forest Service and they must revoke 
 the permit. A year ago last summer there was an immense fire 
 which broke out here among the big trees, and I sent my men to 
 stay ^\•ith that fire until it got out. My crew of men put that fire out. 
 They worked there with the soldiers, but they did the biggest part 
 of it, and got the fire out. While tliey were doing that, the super- 
 intendent telephoned to me that some cattle of mine were seen in the 
 park and that I must get them out. I asked him how it was that 
 when my men had been there fcir 48 hours fighting a fii-e for the Gov- 
 ernment, how it was that I should be so treated when my animals 
 had accidentally strayed into the park. He said it was absolutely 
 wrong, and he so reported to thf> superintendent of tlie park. 
 
 That is the treatment we get in there, and for that reason we are 
 desirous of ending this fiiction between the two departments. There 
 are only a small number of men in tliere, five or so; they are all poor 
 men, and that this is their way of making a living. 
 
 !Mr. MoxDELL. There is no justificntion for returning considerable 
 areas of lands in our national parks wliich do not contain features of 
 scenic beaut}', or M'hich is not joined by natural boundaries to land 
 that has scenic beauty. In the second place, if it is such land, all 
 private holdings should be eliminated from our national park. 
 
 Mr. CuRTiN. I think so, too. But that land that is selling as this 
 is selling for -SI 2.5 an acre, that tlie Government can not go to work 
 and buy that and advertise the mature timber there for 12 a thousand. 
 
 Mr. Volstead. How much privately owned land is there in the 
 Yosemite Valley '. 
 
 Mr. C'rnTiN, None whate^'er. That was granted to the State of 
 California in 1864 and recorded by the State in 1905. There isn't a 
 foot which can be sold; it is inalienable. 
 
 Mr. MoNDELL. Have the two Secretaries been called upon to report, 
 Mr. Kaker'^ 
 
 Mr. Raker. Yes, sir. 
 
 Mr. CuRTiN. I understand from the Department of the Interior that 
 they are going to ask Maj. Forsythe for his report. Mr. Mitchell, of 
 the Forestry Department, himself last winter went over this situation. 
 
 Mr. Raker. I want to ask you a question. This black line that 
 runs south and that runs east and north, that takes it well away from 
 the scenic beauty % 
 
 Mr. CuRTiN. Yes, sir. 
 
10 WESTEEN BOUNDABY OF YOSEMITE NATIONAL PAHK. 
 
 Mr. Rakek. And the one that comes west and north follows the top 
 of the ridge '. 
 
 Ml-. CuKTiiX. No; the f(ji)t (jf the ridge. 
 
 Mr. Rakee. Tlie foot of the ridge, ;ind tliat is clear all around here, 
 and hooks in on the west ? 
 
 Mr. C'uETix. Yes, sir. 
 
 Mr. Rakee. And the water on the nortli whicli runs nortli and 
 west '>: 
 
 Ml'. CuETiN. There is the Tuolumne River. 
 
 Mr. Rakee. And this on the extreme east runs into Yosemite 
 Creek and comes over the Yosemite Falls ( 
 
 Mr. CiKTix. Yes, sir. Consider this rule promulgated by the 
 SecrcfarA' relative to the national park, and made a part of the de- 
 cision 1)}' the United States ^Supreme Court: 
 
 Owners of patented lands within the park limits are entitled to the full use and 
 enjoyment thereof; such lands, however, shall ha\e the metes and bounds thereof so 
 marked and defined that they may be readily distinguished from the park lands. 
 Stock may be taken over the park lands to patented lands with the written permission 
 and under the supervision of the superintendent. 
 
 The Supreme Court said tliat they couldn't impose that condition 
 upon us, who had bought our land and had received patents for it. 
 
 ]\rr. Volstead. That might be construed as a ilirection to their 
 own officers to mark it. 
 
 Mr. CiETiN. The decision says: 
 
 We have assumed, so far, that Benson has exercised a power in accordance with 
 the rule.i prescribed by the Secretary of the Interior. This, however, may be ques- 
 tioned. The orders of Benson are not that Curtin mark and define his lands, but that 
 he do sn "by an agreed understanding'" with him (Benson), so that there could be no 
 subsequent controversy about their boundaries. But this gives to Benson power to 
 force a concession to "his understanding" and to require Ourtin to submit to a limita- 
 tion of the area of his land or a limitation of its uses. It is no answer to say that the 
 power would not be arbitrarily or unreasonably exercised. It must be judged by 
 what can be done under it, not by what may be done under it. 
 
 Mr. MoNDELL. Is that from tlie decision of the Supreme Court '. 
 
 Mr. CvETiN. Yes, sir. 
 
 Mr. MoxDELL. I think tliut ought to go into the record. 
 
 Exhibit A. 
 
 Supreme Court of the United States. 
 
 Appeal from the Cirouit Court oi? the United States foe the Northern Dis- 
 trict OF California. 
 
 J. B. CuRTlN, appellant,] 
 
 r. [No. 1. October term, 1911. 
 
 H. C. Benson et al. J 
 
 [November 20, 1911.] 
 
 Mr. Justice MoKenna delivered the opinion of the Court: 
 
 This suit was brought in the superior court cjf Tuolumne County, State of California 
 against the appellee, Benson, and others, who were soldiers under Benson, to enjoin 
 them from driving appellant's stock from his lands or by any means interfering with 
 them, and from preventing appellant driving his stock to his lands over certain toll 
 roads. The case was removed lo the United States Cn-cuit (Jourt for the Northern 
 District <if California, where, after hearing, final judgment was rendered dismissing 
 the bill of complaint. 
 
 The facts as agreed to, and established by evidence supplementing the agreement, 
 are as follows: Appellant is the owner of certain lands within the Yosemite National 
 
WESTEEN BOUNDARY OF YOSEMITE NATIONAL PARK. 11 
 
 Park (the park was regularly anil les^ally eatabliahed, act Oct. 1, 1890, 26 Stat., 650, 
 ch. 1263; Joint Res., June 11, lllOO, 34 Stat,, 8.31) and lessee of other lands therein. 
 Leading to the lands there are certain toll roada, which were established many years 
 prior to the creation of the park. 
 
 Appellee Benson is a captain in Ihe United States Army and superintendent of the 
 park, and, as such, it was and is his duty to enforce the rules and regulations prescribed 
 by the Secretary of the Interior for the government of the park, and for this purpose 
 he has a body of ti'oops under his command. 
 
 The Secretary established and promulgated the following rules: 
 
 "9. Owners of patented lands within the park limits are entitled to the full use 
 and enjoyment thereof; such lands, however, shall have the metes and bounds thereof 
 so marked and defined as that they may be readily distinguished from the park lands. 
 Stock may be taken over the park lands to patented lands with the written permission 
 and under the supervision of the superintendent. 
 
 " 10. The herding or grazing of loose stock or cattle of any kind on the Government 
 lands in the park, as well as the driving of such stock or cattle over the same, is strictly 
 forbidden, except in such cases where authority therefor is granted by the superin- 
 tendent." 
 
 Appellant claims the right, without complying with these rules, to drive his cattle 
 over the toll roads and to graze them on his lauds. On one occasion appellant placed 
 cattle on his lands, and appellee Benson immediately removed them, and refused to 
 allow them to be grazed thereon until appellant complied with the rules; and, prior 
 to the commencement of the suit, refused to allow appellant to drive his cattle over 
 the toll roads to his lands or to use the lands until he complied with the rules. 
 
 The testimony gave some particularity to the facts as agreed to. It appeared that 
 appellant has within the park a few hundred acres and, it may be inferred, 23,000 acr s 
 in the vicinity. He asserted that he had not complied with the regulations, and did not 
 intend to do so until required. And it was admitted that the largest part of the land 
 was unfenced. 
 
 The following from the report of the superintendent of the park to the Secretary of 
 the Interior for the year 1901 was put in evidence: "After due consideration, based 
 upon the best evidence I have been able to obtain, I can see no objection to property 
 owners and those holding leased land within the park limits grazing cattle near their 
 own premises under the supervision of the park authorities." 
 
 Testimony was introduced on the part of appellees (their counsel expressing a doubt 
 of its admissibility) "to show that the regulation is a reasonable one, and the reason 
 for it, and what effect will be produced if the regulation is not carried out." To the 
 offer counsel for appellant replied that he denied the power of the Secretary. "It is 
 simply a question of his power," he said, and stated that if defeated on that point he 
 could show that the rules were not reasonable under the circumstances. The court, 
 saying that it understood, heard the evidence, which was to the following effect: 
 Appellee Benson had been superintendent of the park since April 10, 1905, and on 
 duty there for several years prior to that time. Numerous people claimed land in 
 the park as their ranges, and a number of them had the places surrounded by fences, 
 "sometimes inclosing, instead of 160 acres which they had, as high as several thousand 
 acres of land." They drove their cattle to the so-called ranges and immediately let 
 them loose, and they strayed throughout the entire reservation. "Senator Curtin's 
 cattle have been in that condition for a great many years." This he (Benson) knew 
 of his personal knowledge, because he was present at the time and had a correspond- 
 ence with Mr. Curtin as far back as 1895, 1896, and 1897. He further testified that he 
 was detailed on special duty to ascertain private land claims in the park, the object 
 being to ascertain who owned land "and somewhere about where it lay;" that he did 
 some surveying and found that a great many people — "Mr. Curtin, for instance" — 
 had fenced more land than they were entitled to, had paid no attention to their own 
 lines, had tracts of land inclosed upon which their cattle did not stay for more than 
 three or four days, "but proceeded out to the rest of the park, so a regulation was 
 ordered that they point out their metes and bounds, for this reason: though we might 
 know absolutely where they were," they would claim the cattle to be on their lands. 
 If the metes and bounds were fixed by an "agreed understanding" it could be defi- 
 nitely known whether they were within or without the claim. He further testified 
 that the whole place had been overrun with cattle, and that the object of the regula- 
 tions was "to keep people to the use of their own lands and keep the Government 
 land from being interfered with." He did not attempt to prevent Curtin from using 
 hia land, provided he complied with the regulations, but he did remove cattle from 
 Curtin's land on the ground that he had not complied with the regulations. 
 
 He testified further that he permitted Curtin to pasture his cattle on hia land after 
 he (Curtin) had it surveyed, but refused Curtin permission to fence according to the 
 survey, the correctness of the survey being disputed. 
 
12 WESTERN BOUNDAKY OF YOSEMITE NATIONAL PARK. 
 
 It ia objected by the Government that appellant is not entitled to the relief he prays 
 because he does not come into court with clean hands. It is urged as a ground of the 
 charge that the testimony exhibits his purpose to V e to use his lands as a basis and the 
 toll roads as a means to make wholesale trespasses upon the park lands. If the fact 
 were estal lished it might be hard to resist its effect, but it is not estal^lished. The 
 evidence cited in supjiort of it, and of which we have given the substance, refers to a 
 period anterior to the time when this controversy arose. Indeed, anterior to the time 
 when the regulations were established by the Secretary of the Interior, which was 
 April 22, 1905, and the ol ject of the testimony was to account for the regulations and 
 not to show the special and immediate justification of Benson's orders, ^\'e can not 
 now extend the evidence beyond the special and limited purpose of its introduction. 
 We do not think the case, as it was submitted to the circuit court, showed the ulterior 
 purpo: e on the part of appellant to l:e a willful trespass upon the lands of the park, but 
 to be an honest assertion of rights. 
 
 On the merits of the case we may concede, arguendo, as contended by the appellees 
 and disputed by appellant, that the United States may exen-ise over the park not only 
 rights of a proprietor but the powers of a sovereign. There are limitations, however, 
 upon both. Neither can be exercised to destroy essential uses of private property. 
 The right of appellant to pasture his cattle upon his land and the right of access to it 
 are of the very essence of his proprietorship. May conditions 1 e put upon their 
 exercise such as appellees put upon them? In answering the question we shall 
 assume, for the time being, that Benson has interpreted correctly the regulations of 
 the Secretary of the Interior. His (Benson's) order is not, it will be obser\'ed, a regu- 
 lation of the use of the land, as an order to fence the lands might 1 e, l-.ut is an absolute 
 prohiV'ition of use It is not a prevention of a misuse or illegal use liut the prevention 
 of a legal and essential use, an attriV-ute of its ownership, one which goes to make up 
 its essence and value. To take it away is practically to take his propertj" away, and 
 to do that is beyond the power even of sovereignty, excej>t by proper proceedings te 
 that end. 
 
 A law requiring an owner in appellant's situation to fence his land might be within 
 such power, though of that we are not required to express an opinion. ,V law making 
 the trespass of his cattle on other lands a criminal offense might l:e within such power. 
 Such laws might 1 e considered as strictly regulations of the use of property, of so using 
 it that no injury could result to others. They woukl have the effect of making the 
 owner of land herd his cattle on his own land and of making him responsible for a 
 neglect of it. 
 
 We have assumed so far that Benson has exercised a power in accordance with the 
 rules prescribed by the Secretary of the Interior. This, however, may be questioned. 
 The orders of Benson are not that (.lurtin mark and define his lands, but that he do so 
 '' by an agreed understanding " with him (Benson), so that there could be no subsequent 
 controi.'ers\- about their boundaries. But this gives to Benson power to force a con- 
 cession to his "understanding" and to require Curtin to submit to a limitation of the 
 area of his land or a limitation of its uses. It is no answer to say that the powerwould 
 not be arbitrarily or unreasonably exercised. It must be judged by what can be done 
 under it, not by what may be done under it. 
 
 It may be doubted, too, if the rules prescribed by the Secretary of the Interior 
 warranted Benson's order in regard to the toll roads. The rules did not deal with the 
 toll roads at all. They do deal with "park lands" and authorize stock to be taken over 
 them by the "written permission and under the supervision of the superintendent." 
 But even if it be held to apply to the toll roads it is manifestly but a regulation of the 
 transit of the stock mere ly and not a use of the r lads as a condition of the performance 
 of something else. 
 
 We, however, rest our decision on the ground of the want of power of the Secretary 
 or the superintendent to limit the uses to which lands in the park held in private 
 of ownership may be put. 
 
 Decree reversed and course remanded for further proceedings in accordance with 
 this opinion. 
 
 Mr. Curtin. I thank you, gentlemen, for your attention. This is 
 not in the interest of any private holdings or property. 
 
 The Chairman. What is the determination by the committee of 
 this matter? 
 
 Mr. Pickett. I suggest that we ask the Department of Agriculture 
 and the Secretary of the Interior to write us their views on the matter 
 so that we can take it up and decide the matter promptly- . 
 
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