tion. In the exercise of this general power of control over the keeping of livestock, the state or municipal corporation may prohibit altogether the running at large of such animals, and compel the owners to keep them within their own inclosures." Inasmuch as the legislature may prohibit the running at large of livestock, we see no reason why it should be held that it may not prohibit the running at large altogether of certain livestock, nor why certain livestock (for instance, sheep) should not be forbidden to be herded within two miles of the dwelling of a settler. We have statutes which, in effect, prohibit hogs from running at large. See sections 1340 to 1344, inclusive, of the Revised Statutes, wherein it is provided that the owner or occupant of premises need not fence against hogs; that the owner of hogs that trespass upon the inclosure of others is liable for damages; for the impounding of trespassing hogs, etc. These statutes, like those in question here, were enacted to protect the farmers from annoyance and injury caused by the trespassing of hogs, and to save them expense in fencing against hogs. It is a matter of common knowledge and experience that a fence will keep out cattle and horses that will not sheep or hogs. It is evident that in passing the statutes cited, relative to the running at large of hogs, and the herding and grazing of sheep within two miles of dwelling-houses, the legislature intended to further the public good and preserve the peace, by 803 preventing those conflicts which would naturally result from the herding of sheep about the dwellings of settlers. The statutes were intended to promote the public good and avoid danger and injury to the citizen. They were also vidently intended to protect the health of the settlers, and as those questions are of legislative discretion, and not judicial, we are not authorized to hold the statutes unconstitutional.

It is contended by the appellant that every citizen has the right to pasture the public domain, and that, if the statutes in question are held valid, it amounts to taking property without due process of law. There is nothing in this contention. We know of no statute enacted by Congress which grants the citizen the right of pasturage upon the public domain, and counsel for appellant cites no such statute. Citizens graze their stock upon the public domain by sufferance of the general government, and not by virtue of any vested right. When Idaho was admitted into the Union of states, she was not fettered or restricted in the exercise of the police power that attaches to statehood by any provision in the admission act, and it cannot be reasonably contended

that, because lands are situated within her borders that belong to the general government, and which private parties are permitted, by sufferance, to pasture, she is limited in the exercise of what would otherwise be legitimate police power. It follows from what has been said that the statutes in question are valid. Finding no reversible error in the record, the order denying a new trial and the judgment are affirmed, with costs of appeal to the respondent.

Sullivan, J., concurs.

Stockslager, J., dissents.

It is a Proper Exercise of the Police Power to prohibit the running at large of domestic animals: See Wilson v. Beyers, 5 Wash. 303, 34 Am. St. Rep. 858, 32 Pac. 90; Cochrane v. Mayor of Frostburg, 81 Md. 54, 48 Am. St. Rep. 479, 31 Atl. 703; monographic note to Booth v. People, 78 Am. St. Rep. 240.

CASES

IN THE

SUPREME COURT

OF

IOWA.

MURRAY v. QUIGLEY.

[119 Iowa, 6, 92 N. W. 869.]

LAND PATENT-Cancellation for Fraud.-A patent to land should not be set aside for fraud in procuring it except upon the most convincing evidence. (p. 280.)

LAND PATENT-Fraud, Knowledge of Presumed.-Persons alleging fraud in the issuance of a patent are conclusively presumed to have discovered it at the time the patent was recorded, if they have lived for years in the vicinity of the land, with knowledge of the possession of the patentee, and at least some of them with actual knowledge of his claims, and the character of his title has been a frequent subject of discussion among those interested therein. (p. 280.)

QUIETING TITLE-Limitation of Action in Case of Fraud.— Parties cannot, by naming their petition an action to quiet title, have a conveyance annulled for fraud, when its fraudulent character has been known to them for thirty years. (p. 281.)

QUIETING TITLE by Remainderman-Limitations.-Remaindermen out of possession, and while the life tenant is alive, are authorized by the Iowa statutes to bring an action to determine and quiet their title, but they must do so within the statutory period. (p. 281.)

COTENANCY-Ouster and Adverse Possession. The conveyance of the entire property by one cotenant operates as an ouster of the others, and serves as a basis for adverse possession by the grantee. (p. 282.)

Suit for partition and for confirmation of title in the plaintiffs. April 16, 1852, C. P. Beeman purchased the E. of the N. W. of 21-97-5 from the school fund commissioners of Allamakee county, taking a contract therefor in accordance with law. April 30th of the same year he and C. D. Beeman, his brother, purchased the S. E. of the N. W. of 33-97-5 from the same party, taking a contract therefor. C. D. Beeman conveyed this

last 40 to C. P. Beeman and his wife, now Abigail Howell, in March, 1857, and in August of that year a patent was issued for the same to C. D. and C. P. Beeman. The latter Beeman died intestate in 1860, his wife Abigail and his daughter Harriet Ann surviving him. In September, 1860, his widow conveyed the whole 120 described, and in April, 1868, her grantee reconveyed it to her. On June 1, 1868, a patent was issued to John Quigley for the E. of the N. W. of 21, which was recorded on the 20th of July following; and on June 2, 1868, Abigail Howell and her husband gave John Quigley a deed of the three 40's described, which was recorded the same day. The plaintiffs claim title through the grantees of Quigley, and the defendants, other than Mary Quigley, claim as heirs of C. P. Beeman and his daughter Harriet. They allege that the interest conveyed by Abigail Howell was a life estate, and that they are the remaindermen; and that the patent to John Quigley was procured by fraud. They pray for affirmative relief. From a judgment quieting title in the plaintiffs and Mary Quigley, and ordering partition, the defendants other than Mary Quigley appeal.

W. S. Hart, for the appellants.

D. J. Murphy and J. F. Dayton, for the appellees.

8 SHERWIN J. At the time of her husband's death, in 1860, Abigail Beeman took one-third interest in his estate for life only, under section 2477 of the Revision of 1860. The daughter Harriet, the only surviving child of C. P. Beeman, died in September, 1861, and upon her death, her mother took a life estate in her property, under section 2498 of the Revision, which is as follows:

"Sec. 2498. If the mother be the surviving parent as contemplated in section 3 of this act, she shall take only a life estate. in the intestate's property, and after her death it shall go to the children of her body, if there be any had by her deceased husband, he being the father of the intestate. If there be no such children, nor issue of such children in the descending line, then the intestate's property shall be divided between the nearest heirs. of the father and mother of the intestate, share and share alike, and after such distribution is made the same rules shall be applied to any further distribution thereof, as prescribed in this act."

No question is made as to the estate vesting in the widow upon. the death of her husband and child nor as to the then situation of the remainderman. Soon after he acquired the patent to the

land and took a conveyance thereof from the Howells, John Quigley conveyed an undivided two-thirds interest therein to his brother, Michael Quigley, by warranty deed, which was duly recorded. Some eight years thereafter Michael Quigley conveyed this interest to his wife, Mary Quigley, who left it to the plaintiffs herein by her will, which was duly probated in 1895. John Quigley conveyed his remaining one-third interest in the land to his wife, Mary E. Quigley, one of the defendants herein in 1896. During his life C. P. Beeman made some payments under his contract for the purchase of the E. of the N. W. † of 21, and at the time of his death the contract was still alive, and not wholly performed, and, unless he made an assignment of his rights under this contract before his death, he died the equitable owner of the land, and his widow and sole heir would take his interest therein, and nothing more. But the patent for this land was issued to John Quigley by the proper state authority, and, if he was entitled to the patent as the assignee of the rights of C. P. Beeman under the contract of purchase the patent vested the absolute title in him, so far, at least, as the defendants are concerned, and they have never had any rights as remaindermen.

10 The contract in question was entered into and the land sold to Beeman under the provisions of the school fund act of 1847, which provided for sales either for cash or on time, under the direction of a school fund commissioner, and for the issuance of a patent by the governor of the state upon the certificate of purchase of the clerk of the district court of the county in which the land sold was situated, that full payment therefor had been made. In accordance with the requirements of this act, the clerk of the district court of Allamakee county issued to John Quigley a certificate under date of June 25, 1868, which is as follows:

"Certificate of Final Payment.

"Office of Clerk of Dist. Court, "Allamakee County, Ia., June 25, 1868. "This is to certify that C. P. Beeman purchased of Elias Topliff, school fund commissioner for the county of Allamakee, on the 6th day of April, A. D. 1852, under the provisions of an act of the general assembly of Iowa entitled 'An act to provide for the management and disposition of the school fund,' approved Feb. 25, 1847, and the amendment thereto, the following tract or parcel of land, to wit: E. of the N. W. of sec. 21, town. 97 north of range 5 west of the 5th principal meridian, containing eighty acres, at one dollar and twenty-five cents per acre, amount