Assistant Attorney General Thompson for appellants.
Mr. Silas Hare for appellee.
Mr. Justice Peckham delivered the opinion of the court:
The claimant, Thomas C. Andrews, filed his claim in the court of claims against the United States and the above-named Indians to recover the value of certain cattle destroyed by the latter in June, 1877, in the Indian territory. The claim was filed pursuant to the provisions of the act of Congress of March 3, 1891, entitled, 'An Act to Provide for the Adjudication and Payment of Claims Arising from Indian Depredations.' [179 U.S. 96, 97] 26 Stat. at L. 851, chap. 538. The property was alleged to have been of the value of $9,225.
The only defense set up was that the claimant at the date of the alleged depredation was wrongfully and unlawfully within the Indian country, and was a trespasser, and therefore could not recover.
After a trial, judgment was given against the United States and the Indians for the sum of $8,300, and the court made the following finding:
The government contends that the claimant was a trespasser by reason of the provisions of the treaty between the United States and these Indians, proclaimed August 25, 1868 (15 Stat. at L. 581), and because by 17 of the act of 1834 (4 Stat. at L. 729, chap. 161), it is provided that the liability of the government for property taken by Indians, in the Indian territory, shall arise only when the owner of the property taken was lawfully within such territory.
The 2d article of the treaty, after describing certain lands in the Indian territory thereby set apart for the absolute and undisturbed use and occupation of the tribes named, provides as follows:
By the 11th article it is, among other things, provided that--
... * *
The question now before us is whether upon the facts found by the court of claims the claimant was lawfully within the territory at the time the Indians destroyed or took away his property.
While the government, by the 2d article of the treaty of 1868, agreed that no one should be permitted to pass over, settle upon, or reside in the territory described in that article, yet in the subsequent article (11) exceptions were made. By the 3d and 6th subdivisions of that article the Indian tribes agreed not to attack persons or cattle, and not to oppose the construction of roads or other works of utility or necessity which might be permitted by the laws of the United States. When [179 U.S. 96, 99] they took the property of the claimant, consisting of cattle, they violated their agreement.
The finding of the court below, that the property of the claimant was taken and carried away while he was traveling in the Indian reservation, over the Chisom trail, the same being an established trail en route from Texas to a market in Kansas, is equivalent to a finding that the trail was a lawfully established trail permitted by the laws of the United States.
We understand that by the use in the finding of the work 'trail,' in connection with the balance of the finding, is meant a way, road, or path suitable for the purpose of driving cattle over or along on their way to a market. In the territory named, a trail along which to drive cattle from Texas to Kansas would certainly be a work of utility or necessity within the meaning of article 11, subdivision 6, of the treaty. It would be a road which the government would naturally seek to provide and obtain permission to lay out or to keep in use for the convenience of its citizens who would have occasion to use it for the purpose indicated in the finding. In order to reverse this judgment we would have to presume that the court, in using the words 'established trail,' meant a trail that was not legally or properly established; this we cannot do, nor can we presume that the trail was established by a user which did not amount to a legal user, and so did not establish a legal trail. Being properly established, it was properly used by the claimant for the purpose stated.
While the finding might have been more definite and therefore more satisfactory, yet within the well-known rules governing the construction of findings of facts by trial courts, we cannot so construe it as to render the result arrived at by the court below erroneous, when another construction much more reasonable and natural may be given it, and the judgment thus rendered valid. An established trail, in this case, means a legally established trail, and we must presume the court below so intended. The claimant was, therefore, lawfully within the territory, and was not a trespasser at the time his property was taken.