Common Law of Grazing
Until the various "enclosure acts" in England privatized pasturage, the "common law of grazing" had applied. This recognized that every subject had common grazing rights ("pasturage and pannage") upon the "waste" lands of the manor, including woodlands, meadows and all lands not under cultivation. There were two kinds of grazing rights: appendant and appurtenant. Appendant rights pertained only to owners of arable land, permitting the owner to graze "commonable beasts upon the lord's waste and upon the lands of other persons within the same manor." (Commonable beasts were those that manure the ground - horses, oxen and cattle.) Appurtenant rights were general rights permitting owners of hogs, goats and other noncommonable beasts to graze stock on the manor's lands. [Blackstone, Commentaries, 2:32-33. See also The Agrarian History of England and Wales, vol. 4, 1500-1640, ed. Joan Thirsk (Cambridge, Eng., 1967); and J.A. Yelling, "Agriculture, 1500-1730," in An Historical Geography of England and Wales, ed. R.A. Dodgshorn and R.A. Butlin (London and New York, 1978), 151-172. (As cited in Forrest McDonald, Novus Ordo Seclorum, The Intellectual Origins of the Constitution, University Press of Kansas, c1985, pp.20.]
California, like almost all other States, accepted the common law of England, so far as not inconsistent with the Constitution or the laws of the State.
In 1850, California adopted the common law of England (Ca. Stats., pg. 219,), so far as not repugnant to or inconsistent with the Constitution of the United States or laws of the State, as the rule of decision in all the courts of the State.
Free access to open-range was reinforced when the California legislature reaffirmed ranching customs and usages or "laws Concerning Rodeos and Defining Duties of Judges of the Plains," (Calif. Stats., April 29, 1851, pg. 149.) The so-called "no fence or trespass law," required farmers and small private landowners to fence out cattle. (This law, also known as "open range," is still in effect in many areas of Siskiyou County.)
The common law of grazing was recognized as applicable to the public domain in the United States as late as the 1890 Supreme Court decision of Buford v. Houtz, 133 U.S. 618. In that case, the court held:
"We are of opinion that there is an implied license, growing out of the custom of nearly a hundred years that the public lands of the United States, especially those in which the native grasses are adapted to the growth and fattening of domestic animals, shall be free to the people who seek to use them where they are left open and unenclosed and no act of government forbids this use... The government of the United States, in all its branches, has known of this use, has never forbidden it, nor taken any steps to arrest it. No doubt it may safely be stated that this has been done with the consent of all the branches of the government and, as we shall attempt to show, with its direct encouragement... Everybody used the open unenclosed country, which produced nutritious grasses, as a public common on which their horses, cattle, hogs and sheep could run and graze." at 620.
The court stated:
"The whole system of control of the public lands of the United States as it has been conducted by the government, under Acts of Congress, shows a liberality in regard to their use which has been uniform and remarkable. They have always been open to sale at very cheap prices. Laws have been enacted authorizing persons to settle upon them, and to cultivate them, before they acquire any title to them. While in the incipiency of the settlement of these lands, by persons entering upon them, the permission to do so was a tacit one, the exercise of this permission became so important that Congress by a system of laws called the Preemption Laws, recognized this right so far as to confer priority of the right of purchase on the persons who settled upon and cultivated any part of this public domain. During the time the settler was perfecting his title...both he and all other persons who desired to do so had full liberty to graze their stock upon the grasses of the prairies and upon other nutritious substances found upon the soil." at 621.