Kidoke, J.
The plaintiffs brought an action of trespass de bonis asjjortatis against the defendant for taking and carrying away a stock of merchandise of the plaintiffs, from their store, which was situated near the Northern Pacific Railroad on the west side of James River. The defendants admitted the taking, and justified upon the grounds that they were commissioned officers in the United States army and on duty at Port Seward; that liquors constituted a part of said stock taken by them, and had been introduced by the plaintiffs, and that the country where the store and the stock of the defendants were situated, was ‘‘ Indian country ” within the meaning of the Non-Intercourse Act of 1834, and the amendments thereof. 4 U. S. Statutes, 729; 13 do., 29, and pleaded other matter in mitigation of damages.
The plaintiffs moved to strike out the matter pleaded in justification on the grounds that it was sham, frivolous and constituted no defense to the plaintiff’s action. And the court below granted this motion, and the appellant assigns this ruling of the court as one, and the chief error.
The country between the James and Missouri' rivers has from the earliest times been in the occupation and under the control of the Sioux or Dakota Nation of Indians. The more northern portion, including the country where the plaintiff’s store was situated, having been occupied by the Yank-tonaise band, and the more southern by the Yankton band of that nation, until cessions to the United States were made by the respective bands.
On the 29th day of April, A. D. 1868, the United States concluded a treaty with the different bands of the Sioux, including the Yanktonaise band, and ratified and confirmed the same on the 16th day of February, A. D. 1869. 15 U. S. Statutes, 647. By the second article of that treaty, page 636, the Indians, parties thereto, “henceforth * * * * * re[56]*56linquish all claims or right in and to any portion of the United States or territories, except such as is embraced within the limits ” in said article described, and except as therein-after provided.
The portion of the territory embraced within the limits in said article specified, was all between low water mark on the east bank of the Missouri River and the one hundred and fourth meridian west from Greenwich, and the north line of Nebraska and the forty-sixth parallel of north latitude. The exceptions in the cessions referred to in article twro are found in articles eleven and sixteen of said treaty. The modification of the general cession of territory in article two made by article eleven is simply a reserved right of the Indians to hunt on any lands north of the North Platte River, which includes the country between the one hundred and fourth meridian on the east and the summit of the Big Horn Mountains on the west, and the North Platte River on the south, and the country occupied by the Crows on the north; and also the right to hunt in Southern Nebraska and Northern Kansas on the Republican Pork of the Smoky Hill River. Article sixteen refers exclusively to the territory above described between the one hundred and fourth meridian and the summit of the Big Horn Mountains. The military posts then established in the territory in this article named were the military posts of Port Reno, Port Phil Kearney and Port C. P. Smith. Indeed it was the establishment of these posts and opening the road to them and by them: to the settlements in Montana by the United States, that the Sioux nation complained of most loudly, and to which the attention of both contracting parties was most earnestly directed.
Prom an examination of the said treaty it appears clear, that all the lands occupied or claimed by auy portion of the Sioux or Dakota Nation of Indians who were parties to the treaty, situated east of the Missouri River were therein ceded to the United States. This cession included the lands and territory on which the plaintiff’s store was situated, from which the defendants took and carried away the said goods. [57]*57And this phase of the case presents the naked question, whether all that part of the United States “ west of the Mississippi and not within the States of Missouri, Louisiana or Arkansas ” is for the purpose of the Non-Intercourse Act of 1834 and amendments, to be taken and deemed to be Indian country, notwithstanding it may, since the passage of the act, have been voluntarily ceded by the Indians then occupying the same, to the United States. The purpose and effect of the Non-Intercourse Act of 1834, was to declare and proclaim what was then Indian country — country in which the manners, customs and Jaws of the Indian tribes prevailed, andin which the United States should protect them in all their natural and guaranteed rights. It was not the purpose to declare or maintain that to be Indian country which was not in fact in the occupation and under the control of the Indians. At no time in its history has the United States Government surrendered any portion of its territory over which it had once extended absolute jurisdiction, and which had been occupied by its own citizens. The policy of all branches of the government from the earliest times, has been to protect all citizens in the occupation of ceded Indian country, and'to secure cessions as fast as demanded by the increase of our own population, by fair and large compensations paid to the Indians. And when territory has once been solemnly ceded by the Indians to the United States, it has never afterwards, so far as we can learn, been considered or treated as Indian country for any purpose. On the other hand these cessions by treaty, duly proclaimed by the President have always been considered and treated by the people of the United States, as an invitation from the executive department to all people to come, open and possess the ceded country.
In pursuance of a published treaty ceding the country to the United States, the plaintiffs in common with large numbers of our people came into the country between the James and Missouri rivers, and entered upon the ordinary avocations of our citizens.
After the ratification of the treaty of 1868, this country was no longer Indian country. The Non-Intercourse Act of 1834, [58]*58wherein, it fixed and determined the limits of the Indian country, at that time was modified and changed by the treaty between the United States and the Dakota Nation of Indians made in 1868 as it had been by various other treaties preceding this last; and the country in which the plaintiff’s goods were seized, as alleged in the complaint and admitted in the answer, was not and had not been since the ratification of the treaty of 1868, Indian country.
The law as to the Indian country had been modified by a subsequent treaty. The Cherokee Tobacco case, 11 Wallace, 621; Foster and Elam v. Neilson, 2 Peters, 314.
The defendants admit that the instructions given by the court below as to the question of damages is correct as a general rule, but claim that the rule was not applicable to, and tended to mislead the jury in the case at bar. However good the intentions and purposes of the defendants may in fact have been — if we are right in our view of the law as above expressed — they committed against the plaintiffs a willful and unlawful act, from which flowed all the damages they sustained. The suing out of process, and the delivery of the goods to the officer having it, is part of the same transaction, and, in the eye of the law, willfully set on foot and consummated by the defendants against the plaintiffs.
Free access — add to your briefcase to read the full text and ask questions with AI
Kidoke, J.
The plaintiffs brought an action of trespass de bonis asjjortatis against the defendant for taking and carrying away a stock of merchandise of the plaintiffs, from their store, which was situated near the Northern Pacific Railroad on the west side of James River. The defendants admitted the taking, and justified upon the grounds that they were commissioned officers in the United States army and on duty at Port Seward; that liquors constituted a part of said stock taken by them, and had been introduced by the plaintiffs, and that the country where the store and the stock of the defendants were situated, was ‘‘ Indian country ” within the meaning of the Non-Intercourse Act of 1834, and the amendments thereof. 4 U. S. Statutes, 729; 13 do., 29, and pleaded other matter in mitigation of damages.
The plaintiffs moved to strike out the matter pleaded in justification on the grounds that it was sham, frivolous and constituted no defense to the plaintiff’s action. And the court below granted this motion, and the appellant assigns this ruling of the court as one, and the chief error.
The country between the James and Missouri' rivers has from the earliest times been in the occupation and under the control of the Sioux or Dakota Nation of Indians. The more northern portion, including the country where the plaintiff’s store was situated, having been occupied by the Yank-tonaise band, and the more southern by the Yankton band of that nation, until cessions to the United States were made by the respective bands.
On the 29th day of April, A. D. 1868, the United States concluded a treaty with the different bands of the Sioux, including the Yanktonaise band, and ratified and confirmed the same on the 16th day of February, A. D. 1869. 15 U. S. Statutes, 647. By the second article of that treaty, page 636, the Indians, parties thereto, “henceforth * * * * * re[56]*56linquish all claims or right in and to any portion of the United States or territories, except such as is embraced within the limits ” in said article described, and except as therein-after provided.
The portion of the territory embraced within the limits in said article specified, was all between low water mark on the east bank of the Missouri River and the one hundred and fourth meridian west from Greenwich, and the north line of Nebraska and the forty-sixth parallel of north latitude. The exceptions in the cessions referred to in article twro are found in articles eleven and sixteen of said treaty. The modification of the general cession of territory in article two made by article eleven is simply a reserved right of the Indians to hunt on any lands north of the North Platte River, which includes the country between the one hundred and fourth meridian on the east and the summit of the Big Horn Mountains on the west, and the North Platte River on the south, and the country occupied by the Crows on the north; and also the right to hunt in Southern Nebraska and Northern Kansas on the Republican Pork of the Smoky Hill River. Article sixteen refers exclusively to the territory above described between the one hundred and fourth meridian and the summit of the Big Horn Mountains. The military posts then established in the territory in this article named were the military posts of Port Reno, Port Phil Kearney and Port C. P. Smith. Indeed it was the establishment of these posts and opening the road to them and by them: to the settlements in Montana by the United States, that the Sioux nation complained of most loudly, and to which the attention of both contracting parties was most earnestly directed.
Prom an examination of the said treaty it appears clear, that all the lands occupied or claimed by auy portion of the Sioux or Dakota Nation of Indians who were parties to the treaty, situated east of the Missouri River were therein ceded to the United States. This cession included the lands and territory on which the plaintiff’s store was situated, from which the defendants took and carried away the said goods. [57]*57And this phase of the case presents the naked question, whether all that part of the United States “ west of the Mississippi and not within the States of Missouri, Louisiana or Arkansas ” is for the purpose of the Non-Intercourse Act of 1834 and amendments, to be taken and deemed to be Indian country, notwithstanding it may, since the passage of the act, have been voluntarily ceded by the Indians then occupying the same, to the United States. The purpose and effect of the Non-Intercourse Act of 1834, was to declare and proclaim what was then Indian country — country in which the manners, customs and Jaws of the Indian tribes prevailed, andin which the United States should protect them in all their natural and guaranteed rights. It was not the purpose to declare or maintain that to be Indian country which was not in fact in the occupation and under the control of the Indians. At no time in its history has the United States Government surrendered any portion of its territory over which it had once extended absolute jurisdiction, and which had been occupied by its own citizens. The policy of all branches of the government from the earliest times, has been to protect all citizens in the occupation of ceded Indian country, and'to secure cessions as fast as demanded by the increase of our own population, by fair and large compensations paid to the Indians. And when territory has once been solemnly ceded by the Indians to the United States, it has never afterwards, so far as we can learn, been considered or treated as Indian country for any purpose. On the other hand these cessions by treaty, duly proclaimed by the President have always been considered and treated by the people of the United States, as an invitation from the executive department to all people to come, open and possess the ceded country.
In pursuance of a published treaty ceding the country to the United States, the plaintiffs in common with large numbers of our people came into the country between the James and Missouri rivers, and entered upon the ordinary avocations of our citizens.
After the ratification of the treaty of 1868, this country was no longer Indian country. The Non-Intercourse Act of 1834, [58]*58wherein, it fixed and determined the limits of the Indian country, at that time was modified and changed by the treaty between the United States and the Dakota Nation of Indians made in 1868 as it had been by various other treaties preceding this last; and the country in which the plaintiff’s goods were seized, as alleged in the complaint and admitted in the answer, was not and had not been since the ratification of the treaty of 1868, Indian country.
The law as to the Indian country had been modified by a subsequent treaty. The Cherokee Tobacco case, 11 Wallace, 621; Foster and Elam v. Neilson, 2 Peters, 314.
The defendants admit that the instructions given by the court below as to the question of damages is correct as a general rule, but claim that the rule was not applicable to, and tended to mislead the jury in the case at bar. However good the intentions and purposes of the defendants may in fact have been — if we are right in our view of the law as above expressed — they committed against the plaintiffs a willful and unlawful act, from which flowed all the damages they sustained. The suing out of process, and the delivery of the goods to the officer having it, is part of the same transaction, and, in the eye of the law, willfully set on foot and consummated by the defendants against the plaintiffs. The defendants, in our view of the case, wrongfully and unlawfully seized and carried away the plaintiff’s goods and property. They falsely represented to a proper officer that they had properly taken them, that they were'subject to seizure and condemnation, and did thereby induce such officer to take out process and take these same goods off their hands. The officer, as soon as he became correctly informed and advised of the facts, returned the goods to the plaintiffs. Upon this state of facts, we have no doubt that the plaintiffs are entitled to recover from the original trespassers the difference in the value of the goods when and where taken and the value of the goods when and where returned.
All the damages are unquestionably the result of the unlawful acts of the defendants and such as would reasonably [59]*59be expected to follow such, acts, and ought not to be apportioned or qualified.
All the damages and injury were a part of the chain of effects resulting from these acts, and the defendants, if liable at all, are liable at least for the damages actually sustained by the plaintiffs from these unlawful acts as naturally flowing therefrom.
We are satisfied that the rule as to what may be shown in mitigation of actual damages sustained in actions of trespass should be limited to evidence of actual benefits received by the plaintiffs, after the trespass, from the property taken. Under this rule, if after property has been taken in trespass from the owner, an execution against him is levied thereon and the property sold, and a judgment against the owner thereby satisfied, this we think could aud ought to be shown in mitigation of damages: So if the whole or a part of the property has been returned to the plaintiff before trial, etc.; but this rule has been doubted, and able jurists have held that no application of the property without the owner’s consent would be available in mitigation of damages. Hanmer v. Wilsey, 17 Wend., 91; but we think the law will presume the assent of the owner to such application of the property as .is for his benefit to the extent of such benefit.
But where as in this case the verdict is only for the actual damages sustained after deducting all benefits derived by the plaintiffs from the return of some portion of the goods, it was incompetent to show in mitigation of damages, that after the trespass was committed and before the goods were returned they were in the custody of the law, under and by virtue of process, for the purpose of enabling the jury to deduct from the aggregate damage, the damage done the goods while in such custody. And if under the old practice a portion of the damages only could have been proved and recovered in an action m et armis, and another portion only in an action of trespass on the ease, still, under our code, all may be shown and recovered under the complaint stating the simple facts. All distinction in the old forms having been abolished, all may be recovered that flowed from the original [60]*60trespass. The original trespassers must respond to the extent of the damages. Greenleaf on Evidence, Yol. 2, Red-field’s edition, 1868, page 550, and notes and authorities there cited; Sedgwick on'the Measure of Damages, 5th edition, 615, 617, 618, Note 1, and authorities.
We find no error in the record. The judgment below is
AFFIRMED.
Appealed to and affirmed by the Supreme Court of the United States, December, 1877.