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pied by them, and set apart or designated as exclusively for their use, under and by the authority of the United States.
In the progress of time what are known as "the Indian reserva. tions” have come to be the only country so occupied by them, and these now constitute the Indian country of the United States, and there is no other; and they are such in both law and fact. In 43 Gallons of Brandy, 11 FED. REP. 47, Mr. Justice McCrary held that section 1 of the intercourse act of 1834, supra, was repealed by section 5596 of the Revised Statutes, and that in his judgment the phrase "Indian country,” as used in the Revised Statutes, now only includes "that portion of the public domain which is set apart as a reservation, or as reservations, for the use and occupancy of the Indians, and not the whole vast extent of the national domain to which the Indian title has not been extinguished.” Upon a rehearing of this case (14 Fed. REP. 539) the learned judge said: “An Indian reservation is a part of the public domain set apart by proper authority for the use and occupation of a tribe of Indians. It may be set apart by an act of congress, by treaty, or by executive order.” See, also, upon this point, U.S. v. Bridleman, U. S. v. Leathers, and U. S. v. Sturgeon, supra.
All the authorities cited by counsel for defendant, namely, U. S. v. Ward, 1 Woolw. 17; U.S. v. The Yellow Sun, 1 Dill. 271; and U.S. v. McBratney, 104 U. S. 621, except the latter, were cited and examined in U.S. v. Bridleman, supra, and shown not to be in conflict with this conclusion.
In McBratney's Case, the defendant, a white man, was convicted, in the circuit court of the United States for the district of Colorado, of the murder of a white man upon the Ute Indian reservation, the same being within the state of Colorado. Upon a motion in arrest of judgment the opinions of the circuit justice and district judge were opposed upon the question of whether the circuit court had jurisdiction of the crime of murder committed under those circumstances; and the same was certified to the supreme court, who answered it by Mr. Justice GRAY in the negative.
But that case does not touch the question under consideration here. It is not claimed in this case that the United States has any other jurisdiction over this reservation than that which is incident to to its power to regulate the intercourse between the whites and Indians thereon. Of course, this does not include the case of a crime committed there by one white man upon another, for that is a matter which does not concern or affect such intercourse; and therefore Mr. Justice Gray, in the conclusion of his opinion, is careful to say that
the decision in that case does not affect any question 'as to the punishment of crimes committed by or against Indians.
The case of the State v. Doxtater, 47 Wis. 278, (S. C. 2 N. W. Rep. 436,] was also cited by counsel for defendant. In that it was decided that the state had jurisdiction of the crime of adultery committed on the Oneida reservation in Wisconsin by an Indian man with a white woman; but that does not touch the question of whether the United States has jurisdiction of the crime of murder committed on the Umatilla reservation by an Indian upon a white man.
The demurrer is overruled, and the defendant is ordered to appear for arraignment.
See Forty-Three Cases of Brandy, 14 FED. REP. 539, and note, 510; FortyThree Gallons of Brandy, 11 FED. REP. 47, and note, 51.
UNITED STATES V. STORES and another.
(Circuit Court, S. D. Florida. November Term, 1882.)
1. PENALTY_CUTTING TIMBER ON PUBLIC LANDS—"TIMBER ” DEFINED.
The term timber," as used in section 2461, Rev. St., does not apply alone to large trees fitled for house or ship building, but includes trees of any size, of a character or sort that may be used in any kind of manufacture or the constru
tion of any article. 2. SAME_PROSECUTION FOR_USE OF TREES NO JUSTIFICATION.
Using trees for fire-wood or burning into charcoal is no justification of the
cutting. 3. SAME-HOMESTEAD ENTRY-No EFFECT ON TITLE.
A homestead entry works no change in the title of lands which can prevent a prosecution under the said section.
Indictment for Cutting Timber on Lands of the United States.
LOCKE, D. J., (charging jury.) These parties have been indicted for cutting timber on lands of the United States, contrary to the act of March 2, 1831, re-enacted in section 2461, Rev. St.; and there appear but two questions which require for you any instructions from the court, namely, the meaning of the term “timber” as used in the statute; and the character of the land upon which such cutting, if any, was done, in respect to its title or ownership. The term "timber," as used in commerce, refers generally only to large sticks of wood, squared or
capable of being squared for building houses or vessels; and certain trees only having been formerly used for such purposes, namely, the oak, the ash, and the elm, they alone were recognized as timber trees; but the numerous uses to which wood has come to be applied, and the general employment of all kinds of trees for some valuable purpose, has wrought a change in the general acceptation of terms in connection therewith, and we find that Webster defines "timber" to be "that sort of wood which is proper for buildings or for tools, utensils, furniture, carriages, fences, ships, and the like.” This would include all sorts of wood from which any useful articles may be made, or which may be used to advantage in any class of manufacture or construction.
With so many peculiar significations, the intended meaning of the word usually depends upon the connection in which it is used or the character of the party making use of it, -as, for instance, a ship-carpenter would understand something quite different when he made use of it from what a cabinet-maker, a last-maker or a carriage-builder would,—and the question is, therefore, not what is the popular meaning as understood by any one class, but its meaning as used in the statute, and how the legislators have employed it; and this must be its most general and least-restricted sense, including in such signification what each and all classes would under such circumstances understand “timber" to be.
The language of the section under which this indictment was found mentions particularly live-oak and red-cedar trees, and then speaks of other timber, showing conclusively that it was not the intention of congress to confine the protection intended to any particular class or kind of trees, but to apply it in its most general sense.
To ascertain the meaning and intent of legislation no more direct or satisfactory way can be suggested than by referring to the manner in which the same terms are used in other enactments.
This word has been frequently used by congress on different occasions and for different purposes. Section 2317 of the Revised Statutes, and the acts of 1874 and 1875, provide that persons planting and protecting timber on the public lands shall be entitled to patents. therefor. Section 2464 provides for planting timber and keeping it in a growing condition. The same term is used also in sections 2465 and 2466, and in each of these places in a manner that precludes absolutely the idea that the term "timber" was intended to be confined to such trees or wood of such sizes as must be especially adapted to house or ship building. The term is here used for live, growing
trees of a useful class, and cannot possibly be held to apply to those of a large size only.
The object of this prohibitory legislation is undoubtedly to prevent stripping the public lands of their growth of forests regard. less of the present size and character of the individual trees, and the term used is intended to apply generally for that purpose; and if it is found that live trees of such a character or sort as might be of use or value in any kind of manufacture, or the construction of any use. ful articles, were cut, the charges in that respect, namely, the character of the timber, has been sufficiently proven. It matters not to what purposes the timber may have been applied after being cut, if converted to the use of the party accused. Selling it for fire-wood or burning it into charcoal would be no defense or excuse for cutting and removing; nor can it be evidence of the worthlessness of the timber cut sufficient to justify it. It must be found that the lands upon which the timber, if any, was cut were lands of the United States, sufficiently described and identified to satisfy you upon that point. It need not have been reserved or purchased for the sake of timber. A homestead entry, although it gives the party entering certain rights of occupation, does not so convey title or divest the United States of property in it as to change its character in this respect; and it is immaterial, therefore, whether the land had been entered for homestead by a third party or not. It is not claimed, nor does it appear, that the defendants herein had any interest, by homestead or otherwise.
Jury found verdict of guilty.
Vide U. 8. v. Briggs, 9 How. 351; U. 8. v. Redy, 5 McLean, 358; 7. 8. v. Shuler, 6 McLean, 28; U. S. v. Cook, 19 Wall. 592; Forsythe v. U. 9. 9 How. 577; Paine v. Northern Pac. R. Co. 14 FED. REP. 407; The Timber Cases, 11 FED. REP. 81; U. S. v. Smith, 11 FED. REP. 487; U. 8. v. Mills, 9 FED. REP. 684.
BIERBACH v. GOODYEAR RUBBER COMPANY.
(Circuit Court, E, D. Wisconsin. October Term, 1882.)
1. NEGLIGENCE-PERSONAL INJURIES—COLLISION ON HIGHWAY.
Where teams have a right in the ordinary course of business to follow each other, turn about, pass and repass, that degree of care and caution must be er. ercised by parties using such highway, when in proximity to each other, to avoid doing each other injury, which would reasonably be expected of an ordinarilyprudent person in the surrounding circumstances.
2. SAME-CONTRIBUTORY NEGLIGENCE.
Negligence is not to be imputed to a driver of a team from the mere fact of a collision; it is a fact to be proved as any other fact in the case; and, even where defendant was guilty of negligence, yet if there was a want of ordinary care on the part of the plaintiff, which as a proximate cause concurred with defend. ant's negligence in causing the accident, plaintiff cannot recover in an action for damages for personal injuries caused by a collision between vehicles on a
highway. 3. SAME-CHOICE OF MEANS TO Avoid COLLISION.
Where a person exercising ordinary prudence and skill as driver of a vehicle up to the moment when danger of collision was imminent, and in the presence of such danger is compelled to choose what course of action he should take to avoid the danger, and did so in good faith, the mere fact that the result afterwards may show that his choice of a way to avoid the collision was
not the best course, cannot be imputed to him as negligence. 4. SAME-MEASURE OF DAMAGES,
In an action for damages for personal injuries caused by a collision on a highway, where negligence only is imputed to the defendant's driver, and it is not claimed that the collision was caused by any intentional, malicious, or willful act, exemplary damages cannot be allowed. The damages which plaintiff
may recover are such as will compensate him for the loss and injury sustained. 5. SAME-PROSPECTIVE DAMAGES.
Where plaintiff is entitled to damages for injuries sustained from the collision, he may recover prospective compensatory damages, or such as it is proved will directly result in the future from the injury complained of, in addition to past and present damages.
R. N. Austin and Geo. B. Goodwin, for plaintiff.
DYER, D. J., (charging jury.) The plaintiff in this action claims that in July, 1880, while he was riding in a wagon which was being drawn by a horse driven by his servant on one of the streets of this city, an employe of the defendant so carelessly and negligently drove a horse which was drawing a wagon belonging to the defendant that the two vehicles came in collision; that the plaintiff's wagon was overturned, and that he was thrown violently to the ground and seriously injured; and this action is brought to recover damages for the injuries claimed to have been thus received.
The undisputed testimony shows that the plaintiff, in company with his servant, left his place of business on Second street and drove to Grand avenue; that they turned east on Grand avenue and proceeded on their way until they reached a point about midway in the block, and near the Plankinton House, where they attempted to turn about and return to the plaintiff's place of business. It appears that the defendant's horse and wagon were in their rear, and were also going east on the same street, and that as the plaintiff's horse and wagon were turning about, the collision occurred. These are general