L. chap. 341, page 376), which provided for the investigation by the Interior Department of claims on account of Indian depredations, and under which it is alleged that the Secretary acted in making his award, authorized the Secretary "to determine the kind and value of all property damaged or destroyed by reason of the depredations aforesaid." The contention is that the terms "damaged or destroyed" enlarge the scope of the liability assumed by the government. We are unable to perceive that this is of any significance in this case. The property left in the possession of the petitioner was neither damaged nor destroyed by the action of the Indians in taking away the other property. Its inherent intrinsic value was in no manner disturbed. The damages were not to the property, considered as property, but simply consequential from the wrong done, and consisted solely in the fact that the petitioner, wronged by the taking away of certain property, was unable to realize the real value of property not taken, damaged, or destroyed. Nothing was done by the Indians to disturb the intrinsic value of the property left in possession of the petitioner. It remained his with full right of control and disposition, in no [379]manner *marrad or changed in value, and the sum of the injury results only from the fact that he could not remove it to a suitable market. The property, in itself considered, was neither taken, damaged, nor destroyed. The only result was that his ability to make use of that value was taken away because his means of transportation were destroyed. The damages were, therefore, consequential, and not to the property itself. We do not perceive how, under the statute, the liability of the government was enlarged by this fact. The judgment of the Court of Claims is therefore affirmed. Mr. Justice White, Mr. Justice Peckham, and Mr. Justice McKenna dissented. review a judgment of that court affirming the judgment of the Circuit Court of the United States for the District of Washington in favor of Serette O. Freeman et al., widow and minor children of Thomas A. Freeman, against the Northern Pacific Railway Company for damages for the death of said Thomas A. Freeman caused by the negligence of said railway company. Reversed and cause remanded, with directions to grant a new trial. See same case below, 48 U. S. App. 757, 83 Fed. Rep. 82, 27 C. C. A. 457. Statement by Mr. Justice Brown: *This was an action by the widow and mi-[380) nor children of Thomas A. Freeman, originally brought in the circuit court for the District of Washington against the receiver of the Northern Pacific Railroad Company, and subsequently, after the discharge of the receiver, continued against the Northern Pacific Railway Company, purchaser at the foreclosure sale, which, by virtue of the provisions of the decree of sale, had assumed the liabilities of the receiver. The object of the action was to recover damages on account of the death of Thomas A. Freeman, which was alleged to have occurred by reason of the negligence of the company. The accident occurred at a highway crossing near the eastern corporate limits of the town of Elma, in the county of Chehalis, in the state of Washington, at a point where the highway crosses the railway track nearly at right angles. Upon the trial, counsel for the railway company asked the court to instruct the jury to return a verdict for the defendant, upon the ground that the undisputed testimony showed that the deceased, as he approached the railway crossing, did not look up or down the track, and did not see the train which was approaching in full view, and therefore was guilty of such contributory negligence as to preclude the plaintiffs from recovering damages. This the court refused, but left the case to the jury under the following instruction, to which exception was taken: "Where a party cannot see the approach of NORTHERN PACIFIC RAILROAD COM- a train on account of intervening objects, he PANY, et al., Plffs. in Err., V. SERETTE O. FREEMAN et al. (See S. C. Reporter's ed. 379-384.) Contributory negligence. Where a person approached a railway crossing well known to him, when a coming train was In full view, and he could have seen it while 40 feet distant from the track if he had used his senses, but did not look, or took the chance of crossing the track before the train reached him, and was killed, he was guilty of contributory negligence. [No. 241.] may rely upon his ears, and whether he should have stopped and listened under the circumstances is for you; and if you believe from the evidence that deceased, Thomas A. Freeman, acted as a man of ordinary care and prudence would have done as he ap proached the crossing, then your verdict should be for the plaintiffs, in case you find that the defendants were negligent and that the collision was due to their negligence." Counsel further excepted to the following instruction: "There has been some testimony tending to show that the deceased might have seen the approaching train some feet before he reached the track. If you be lieve that the deceased could have seen the approaching train when he was within a few Argued and Submitted April 13, 1899. De- *feet of the track, then it is for you to say, IN cided May 15, 1899. ERROR to the United States Circuit Court of Appeals for the Ninth Circuit to under all the circumstances, whether he used reasonable precaution and care to avoid the collision." Exception was also taken to an instruc Cody, 166 U. S. 606, 41 L. ed. 1132. tion to the jury upon the subject of dam- | U. S. 571, 34 L. ed. 241; Texas & P. R. Co. v. Mr. C. W. Bunn, for plaintiff in error: The facts conclusively proved here are that the deceased did not look and did not see the train until just as the collision occurred. Chicago, R. I. & P. R. Co. v. Houston, 95 U. S. 697, 24 L. ed. 542; Schofield v. Chicago, M. & St. P. R. Co. 114 U. S. 615, 29 L. ed. 224; Texas & P. R. Co. v. Gentry, 163 U. S. 353, 41 L. ed. 186; Cleveland, C. C. & I. R. Co. v. Elliott, 28 Ohio St. 340; Pennsylvania R. Co. v. Beale, 73 Pa. 504, 13 Am. Rep. 753; Schaefert v. Chicago, M. & St. P. R. Co. 62 Iowa, 624. Under the circumstances, ordinary care required that he should have stopped and looked and listened at some place, since there was nothing to prevent his doing so and nothing to distract his attention. Brown v. Milwaukee & St. P. R. Co. 22 Minn. 165; Abbett v. Chicago, M. & St. P. R. Co. 30 Minn. 482; Mantel v. Chicago, M. & St. P. R. Co. 33 Minn. 62; Haas v. Grand Rapids & I. R. Co. 47 Mich. 401; Brady v. Toledo, A. A. & N. M. R. Co. 81 Mich. 616; Nelson v. Duluth S. S. & A. R. Co. 88 Wis. 392; Moore v. Keokuk & W. R. Co. 89 Iowa, 223; Salter v. Utica & B. River R. Co. 75 N. Y. 273; Cincinnati, H. & I. R. Co. v. Duncan, 143 Ind. 524; Philadelphia, W. & B. R. Co. v. Hogeland, 66 Md. 149, 59 Am. Rep. 159; Tully v. Fitchburg R. Co. 134 Mass. 499; Butterfield v. Western R. Corp. 10 Allen, 532, 87 Am. Dec. 678; Tolman v. Syracuse, B. & N. Y. R. Co. 98 N. Y. 198, 50 Am. Rep. 649; Powell v. New York C. & H. R. R. Co. 109 N. Y. 613. Messrs. Stanton Warburton, J. B. Bridges, O. V. Linn, Sidney Moor Heath, and Hudson & Holt, for defendant in error: There was sufficient evidence for the court to submit the case to the jury. V. Chesapeake & O. R. Co. v. Steele, 54 U. S. App. 550, 84 Fed. Rep. 93, 29 C. C. A. 81; Mount Adams & E. P. Inclined R. Co. v. Lowry, 43 U. S. App. 408, 74 Fed. Rep. 463, 20 C. C. A. 596; Travelers' Ins. Co. Mitchell, 47 U. S. App. 260, 78 Fed. Rep. 754, 24 C. C. App. 305; Dublin, W. & W. R. Co. v. Slattery, L. R. 3 App. Cas. 1155. Contributory negligence cannot avail the defendant unless shown by a preponderance of the evidence. Contributory negligence of the party injured would not prevent him from recovering if the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of plaintiff's negligence. Inland & 8. Coasting Co. v. Tolson, 139 U. S. 551, 35 L. ed. 270; Washington & G. R. Co. v. McDade, 135 U. S. 554, 34 L. ed. 235; Grand Trunk R. Co. v. Ives, 144 U. S. 429, 36 L. ed. 493; Delaware, L. & W. R. Co. v. Converse, 139 U. S. 469, 35 L. ed. 213. The question of negligence on the part of defendant was one of fact for the jury to determine. So also the question of whether there was negligence in the deceased which was the proximate cause of the injury was such a question for the jury. Cincinnati, N. O. & T. P. R. Co. v. Farra, 31 U. S. App. 306, 66 Fed. Rep. 496, 13 C. C. A. 602; Chicago & N. W. R. Co. v. Tripkosh, 32 U. S. App. 168, 406, 67 Fed. Rep. 665, 14 C. C. A. 615; Lynch v. Northern P. R. Co. 29 U. S. App. 664, 69 Fed. Rep. 86, 16 C. C. A. 151; Texas & P. R. Co. v. Spradling, 30 U. S. App. 698, 72 Fed. Rep. 152, 18 Č. C. A. 496; Northern C. R. Co. v. Herchiskel, 38 U. S. App. 659, 74 Fed. Rep. 460, 20 C. C. A. 593; Cobleigh v. Grand Trunk R. Co. 75 Fed. Rep. 247; St. Louis & S. F. R. Co. v. Barker, 40 U. S. App. 739, 77 Fed. Rep. 810, 23 C. C. A. 475; Baltimore & O. R. Co. v. Griffith, 159 U. S. 603, 40 L. ed. 274. The question presented in this case is whether plaintiff looked and listened within a reasonable distance of the crossing. What is a reasonable distance is a question to be determined with regard to all the circumstances of this particular case, and is not a matter of legal judgment, but one of practical experience. Wood, Railroads, 1522, 1530, 1548; Nosler v. Chicago, B. & Q. R. Co. 73 Iowa, 268; Lindeman v. New York C. & H. R. R. Co. 42 Hun, 306; Cleveland, C. & C. R. Co. v. Crawford, 24 Ohio St. 631, 15 Am. Rep. 633; Eagan v. Fitchburg R. Co. 101 Mass. 315; Lehigh Valley R. Co. v. Hall, 61 Pa. 361; Eilert v. Green Bay & M. R. Co. 48 Wis. 606. In the absence of positive evidence to the contrary it will be presumed that deceased did all that a prudent man would have done under the circumstances. Texas & P. R. Co. v. Gentry, 163 U. S. 353, 41 L. ed. 186; Schum v. Pennsylvania R. Co. 107 Pa. 8, 52 Am. Rep. 468; Cleveland, C. & C. R. Co. v. Crawford, 24 Ohio St. 636, 15 Am. Rep. 633; Continental Improv. Co. v. Stead, 95 U. S. 161, 24 L. ed. 403. *Mr. Justice Brown delivered the opin-[381] ion of the court: Washington & G. R. Co. v. Gladmon, 15 Wall. 401, 21 L. ed. 114; Hough v. Texas & P. R. Co. 100 U. S. 213, 25 L. ed. 612; Inland & S. Coasting Co. v. Tolson, 139 U. S. 551,35 es in the neighborhood tending to show that There was testimony from several witnessL. ed. 270; Texas & P. R. Co. v. Volk, 151 U. no whistle was blown by the engineer as the S. 73, 38 L. ed. 78; Texas & P. R. Co. v. Gen- train approached the crossing. There was try, 163 U. S. 353, 41 L. ed. 186; Indianapo- also the testimony of the conductor, engilis & St. L. R. Co. v. Horst, 93 U. S. 298, 23 neer, and fireman that the whistle was L. ed. 900. blown. As the majority of plaintiffs' witAs a general rule the question of contrib-nesses were so located that they would probutory negligence is one for the jury. ably have heard the whistle if it had been Washington & G. R. Co. v. McDade, 135 blown, there was a conflict of testimony with respect to defendant's negligence which was properly left to the jury. ceased took any precaution before crossing the track. The real question in the case was as to So far, then, as there was any oral testithe contributory negligence of plaintiffs' in- mony upon the subject, it tended to show testate. For several hundred feet on either that the deceased neither stopped, looked, nor side of the highway crossing there was a cut listened before crossing the track, and there of about eight feet below the surface of the was nothing to contradict it. Assuming, surrounding country, through which the rail- however, that these witnesses, though unconway ran. The highway approached the cross-tradicted, might have been mistaken, and ing by a gradual decline, the length of which was from 130 to 150 feet. Along the greater portion of this distance the view of a train approaching, either from the north or the south, was cut off by the banks of the excavation on either side of the highway; but at [382]a distance of about forty *feet before reaching the track the road emerged from the cut, and the view up the track for about 300 feet was unobstructed. At the time of the accident, Freeman was driving along the highway, going eastward from the town of Elma in a farm wagon drawn by two horses at a slow trot. He was a man thirty years of age, with no defect of eyesight or hearing, and was familiar with the crossing, having frequently driven the same team over it. The horses were gentle and were accustomed to the cars. The duty of a person approaching a railway crossing whether driving or on foot, to look and listen before crossing the track, is so elementary and has been affirmed so many times by this court, that a inere reference to the cases of Chicago, R. I. & P. Railroad Company v. Houston, 95 U. S. 697 [24: 542], and Schofield v. Chicago M. & St. Paul Railway Co. 114 U. S. 615 [29: 224], is a sufficient illustration of the general rule. There were but three witnesses to the accident. Two of these were women who were walking down the highway, and approaching the crossing on the opposite side, facing the team. At the time the deceased was struck by the train, they were from 200 to 250 feet away. They testified that the horses were coming down at a slow trot, not faster than a brisk walk, and that their speeed was uniform up to the time of the accident; that the deceased looked straight before him, without turning his head either way; that the team did not swerve but trotted directly on to the crossing, and that the deceased made no motion to stop until just as the engine struck him. The other witness was a little girl, ten years of age, who was standing on the hill on the opposite side of the track, near the point where the descent of the highway into the cut began, and was consequently from 130 to 150 feet from the railway track. The deceased passed her and two other young children who were with her. She testified that as he passed his head was down, and he was looking at his horses; that "they went down aways, and then they run and flew back;" that they were going at a slow trot; that when Freeman saw the train he tried to [383]pull the horses around, as if he were trying to get out of the way, when the train struck them. Another witness was driving behind the team, but he testified to nothing which bore upon the material question whether the de that the jury were at liberty to disregard their testimony and to find that he did comply with the law in this particular, we are confronted by a still more serious difficulty in the fact that if he had looked and listened he would certainly have seen the engine in time to stop and avoid a collision. He was a young man. His eyesight and hearing were perfectly good. He was acquainted with the crossing, with the general character of the country, and with the depth of the excavation made by the highway and the railway. The testimony is prac tically uncontradicted that for a distance of forty feet from the railway track he could have seen the train approaching at a distance of about 300 feet, and as the train was a freight train, going at a speed not exceeding twenty miles an hour, he would have had no difficulty in avoiding it. When it appears that if proper precautions were taken they could not have failed to prove effectual, the court has no right to assume, especially in face of all the oral testimony, that such precautions were taken. The comments of Mr. Justice Field in Chicago, R. I. & P. Railroad Company v. Houston, 95 U. S. 697, 702 [24: 542, 544], are pertinent in this connection: "Negligence of the company's employees in these particulars" (failure to whistle or ring the bell) "was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of cul-[384] pable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming and yet undertook to train to pass, and was injured, the conse cross the track, instead of waiting for the quences of her mistake and temerity cannot be cast upon the defendant." If, in this case, we were to discard the evidence of the three witnesses entirely, there would still remain the facts that the deceased approached a railway crossing well known to him; that the train was in full view; that, if he had used his senses, he could not have failed to see it; and that, notwithstanding this, the accident occurred. Judging from the common experience of men, there can be but one plausible solution of the problem how the collision occurred. He did not look; or if he looked, he did not heed the warning, and took the chance of crossing the track before the train could reach him. In either case he was clearly guilty of contribu tory negligence. [385] The cases in this court relied upon by the plaintiffs are all readily distinguishable, either by reason of the proximity of obstructions interfering with the view of approaching trains, confusion caused by trains approaching simultaneously from opposite directions or other peculiar circumstances tending to mislead the injured party as to the existence of danger in crossing the track. Upon the whole, we are of opinion that the testimony tending to show contributory negligence on the part of the deceased was so conclusive that nothing remained for the jury, and that the defendant was entitled to an instruction to return a verdict in its favor. The disposition we have made of this question renders it unnecessary to express an opinion upon the instruction as to damages. Messrs. Charles W. Russell and John K. Richards, Solicitor General, for appellant. Mr. Edgar Wilson for appellee. *Mr. Justice White delivered the opinion[385) of the court: The United States alleged in its bill substantially as follows: That in July, 1864, in Boise county, territory of Idaho (now Ada county, state of Idaho), a tract of land was duly set aside as a military reservation for the establishment of a military post, and that the reservation was subsequently occupied as such post and so continued to be used by the government of the United States, for the purpose in question, up to the time when the bill was filed. It was alleged, moreover, that flowing across the reservation was a stream of water known The judgment of the court below must as Cottonwood creek, which was non-navigatherefore be reversed, and the cause remand-ble, but which afforded “an ample supply for ed to the Circuit Court for the District of the agricultural, domestic, and practical purWashington, with directions to grant a new poses of the officers and troops of said militrial. tary post, and no more, and that said stream of water, together with all the uses and privThe CHIEF JUSTICE and Mr. Justice Har-ileges aforesaid, belong to and are the property lan dissented from the opinion of the court. UNITED STATES, Appt., v. JOHN KRALL. (See S. C. Reporter's ed. 385-391.) Judgment, when not final. of plaintiffs; and that from the time of the The bill then averred that at a point on [No. 216.] Argued and Submitted April 3, 1899. cided May 15, 1899. more Averring the illegality of defendant's acts. in diverting the water from the stream, and that all the water flowing in its natural course De- was essential for the purpose of the reservation, the bill asserted the title of the United States to all the water in the stream, and APPEAL from the United States Circuit Court of Appeals for the Ninth Circuit to review a decree of that court reversing a decree of the Circuit Court of the United States for the District of Idaho and decreeing that the defendant, John Krall, had acquired a valid water right as against the United States in a stream of water known as Cottonwood Creek, which was non-navigable; and remanding the cause to said Circuit Court for further proceedings. Dismissed for want of jurisdiction. See same case below, 48 U. S. App. 351, 79 Fed. Rep. 241, 24 C. C. A. 543. The facts are stated in the opinion. prayed that the defendant be enjoined from above the place where it flowed through the reservation, and that this location of water right was sanctioned by the laws of the United States. It was besides averred that during the years 1894 and 1895 "one Peter Sonna, and his associates, whose names are unknown to this defendant, without defendant's consent, diverted a large amount of the waters of said stream from the head waters thereof and above the point on said stream where plaintiff alleges this defendant has ob387]structed and diverted the *same, and led the same through pipes to a reservoir, on said military post, and that said military post, the officers and troops thereon stationed, have used the waters so stored in part, and have permitted large quantities thereof to pass across said reservation and to be used by the said Peter Sonna for mechanical and other purposes." ly known as '2-inch pipe,' down the mountains to the reservoir before mentioned as located above the officers' quarters on the reservation. The reservoir has a capacity of about 570,000 gallons. The waters gathered and conducted were and now are stored in said reservoir, and distributed therefrom from time to time as hereafter shown. A portion of the waters from the springs, if not diverted, would eventually flow into Cottonwood creek above defendant's point of diversion. "The waters stored in the Sonna reservoir aforesaid are used for fire purposes only on the reservation, and, are also conveyed through mains about three-quarters mile into Boisé City, where they are used in the running of a passenger elevator in one of the largest office buildings of the city, for drinking and closet purposes therein and for domestic [uses] in several city residences, and, in case of danger, for fire purposes, through hydrants located along the line of said The lower court concluded that, as the stream was not navigable and was wholly on the public domain, the defendant had no right to appropriate any of the waters as against the United States, and therefore enjoined the taking by him of any water from the stream above the reservation except to the extent that license to do so might be given by the commandant of the post. A stipulation was entered into between the parties containing an agreed statement of facts, which showed substantially this: That the reservation in question was estab-main." lished prior to the initiation by the defendant of his alleged water right; that "in 1877 the defendant located for agricultural, irrigation, and other and domestic and useful purposes, 500 inches of the waters flowing in Cottonwood creek, and diverted them up on the lands adjacent and in the vicinity of the easterly and southeasterly side of the military reservation, and has continuously used, and is now using, such waters, or portions thereof, for agricultural and irrigating purposes ever since that time upon such lands. His lands consist of a homestead of 160 acres, a desert entry of 160 acres, and his wife's desert of about 70 acres; he has expended between $8,000 and $10,000 in the construction of necessary ditches, flumes, reservoirs, laterals, and other improvements necessary for the reclamation of such lands, which were all desert in character, and of a class known as 'arid lands,' incapable of producing crops of fruit without the application of water. By means of the use of this water and the rights claimed under such location, he and his grantee have acquired title to said desert lands, and have been enabled to cultivate large annual crops of farm produce annually, and to propagate large orchards, which without the water they could not have done." The statement, moreover, indicated the mode in which the reservation drew its supply of water from the stream, some of it being taken above the point where the defendant's water right was located, and contained the following: The circuit court of appeals, to which the cause was taken, referring to Atchison v. Peterson, 20 Wall. 507, 512 [22: 414, 416]; Basey v. Gallagher, 20 Wall. 682 [22: 454]; Broder v. The Natoma Water & Min. Company, 101 U. S. 274 [25: 790]; and Sturr v. Beck, 133 U. S. 541 [33: 761], concluded that the defendant had acquired a valid water right, even as against the United States, and therefore reversed the judgment of the trial court, and remanded the cause to that court for further proceedings in accordance with the views expresed in its opinion. The opinion of the court, after stating the right of the defendant to acquire a water privi-[389] lege, on public lands of the United States, even as against the United States, declared as follows: "His [the defendant's] appropriation was, of course, subject to the prior appropriation and use of the waters of the stream made by the government officials for the purpose of the military post reservation, which consisted of 640 acres of land, and was located on the stream in question below the point of the appellant's diversion." It is charged in the assignment of errors "On or about the year 1894 one Peter that the decision of the court of appeals was Sonna and his associates, without the con- erroneous, first, because it recognized the sent of the defendant, went upon the head right of the defendant to acquire a water waters of said 'Five-Mile Gulch,' one of the right as against the United States; and, secmain tributaries of Cottonwood Gulch, and ond, because it held that the water right of [388]at sundry points gathered and appropriated the defendant, which originated after the esthe waters of large and flowing springs there tablishment of the reservation, could deprive situated, and which are supply springs of the reservation of water necessary for its said 'Five-Mile Gulch,' and the stream there purposes. This is asserted to be the conse situated, and about four miles above the quence of the decree, because it is argued point of the defendant's diversion, and con- it may be construed as depriving the govern veyed the waters of said springs by means ment of the right to use but a quantity of of pipes and mains, the latter being common-water which had been previously actually ap |