and he was unable to rent them, and by reason thereof he lost their rental value, amounting to at least two thousand dollars; that access from Thirty-First Street to the alley in the rear of his property was entirely cut off during the building of the railroad; that the alley was too narrow for teams coming in from the other direction to turn, and that he had a stable at the rear of his property and abutting on the alley, which became entirely untenantable during the construction of the railroad; that the building of the pillars and archway connecting the same at the intersection of Union and Thirty-First Streets damaged the access to his property from Union Street, and the building of the railroad in Thirty-First Street, west of Union Street, damaged his access to his property through the alley in the rear, and depreciated its market value in the sum claimed in the petition. The court refused to admit this proof, and ruled that damages to the rental value of the property were not recoverable in this action, nor damages resulting from the placing of obstructions on Union Street in front of the property, during the time of the building of the railroad, and that no recovery could be had by him for damages to his property by reason of the building of the railroad in Thirty-First Street. The court further decided that section 3283 of the Revised Statutes of Ohio does not enlarge or extend the liabilities of railroad companies, but only preserves the right of property owners to recover for injuries done to their property by the building of railroads under agreements made with municipal or other corporations or public officers or authorities, as provided in that section, precisely as if no such agreements had been made. These rulings having been made, and duly [430] excepted to by the plaintiff, the court, on defendant's motion, gave a peremptory instruction to the jury to return a verdict in its behalf, which was done. Mr. John W. Herron, for plaintiff in er ror: Plaintiff was entitled to have the question and amount of his damages passed upon by the jury. Little Miami R. Co. v. Hambleton, 40 Ohio St. 501. The interest of an adjacent land owner in street is well defined. a Bingham v. Doane, 9 Ohio, 168; Crawford v. Delaware, 7 Ohio St. 459; Cincinnati & S. G. A. Street R. Co. v. Cumminsville, 14 Ohio St. 523; Scioto Valley R. Co. v. Lawrence, 38 Ohio Clark v. Fry, 8 Ohio St. 358. The statute, with the proviso, left the property owner's rights of action unabridged, but it in no way added to them. Pa. R. Co. v. Lippincott, 8 Cent. Rep. 818, 116 Pa. 472; Pa. R. Co. v. Marchant, 12 Cent. Rep. 261, 119 Pa. 541; Rochette v. Chicago, M. & St. P. R. Co. 32 Minn. 201; 17 Am. & Eng. R. Cas. 192, and note; Proprietors of Locks & Canals v. Nashua & L. R. Corp. 10 Cush. 385. The mere fact that the plaintiff's property lies nearer than that of some others does not make the partial obstruction a special damage to him. Blackwell v. Old Colony R. Co. 122 Mass. 1; Proprietors of Locks & Canals v. Nashua & L. R. Corp., and Rochette v. Chicago, M. & St. P. R. Co. supra; Caledonian R. Co. v. Ogilvy, 2 Macq. 229, 29 Eng. L. & Eq. 22; Pierce v. Dart, 7 Cow. 609; Houck v. Wachter, 34 Md. 265; Sargent v. Ohio & M. R. Co. (Super. Ct. of Cincinnati), 1 Handy, 52, 59; Wood, Nuisan ces, chap. 18, Review of Cases; Pittsburgh & L. E. R. Co. v. Jones, 1 Cent. Rep. 884, 111 Pa. 204. Mr. Justice Harlan delivered the opinion of the court: The express requirement that every railroad company occupying a street or other public ground, under an agreement with the munici pal or other authorities, owning or having charge thereof, "shall be responsible for inju ries done thereby to private or public property lying upon or near to such ground," leaves little room for construction. The right to re cover damages for such injuries is not limited to owners of property immediately upon the street occupied by the track or other structures of the railroad company. If the Legislature had intended to restrict the right of action given by the statute to owners of the latter class of property, the words "or near to" would not have been used. The manifest purpose was to place those whose property was "near to" any public street thus occupied upon an equality, in respect to the right to sue, with those whose property abutted on the street. In Railroad Co. v. Mowatt,35 Ohio St. 284, 287 which was an action to recover damages for injuries to private property not immediately upon the street occupied by the railroad track, the court held the limitation of two years prescribed by the statute to be applicable, because the street was occupied under an agreement with the municipal authorities, and because the premises were "near to" that street. But an adjudication more directly in point is Railway Co. v. Gardner, 45 Ohio St. 309, 317 [11 West. Rep. 264], which was made after the decision in the court below of the case now before us. The property there alleged to have been injured was Columbus, S. & C. R. Co. v. Mowatt, 35 Ohio immediately upon the street in which the railSt. 284; Columbus, H. V. & T. R. Co. v. Gard-road track was maintained under municipal ner, 11 West. Rep. 264, 45 Ohio St. 309; Rude v. St. Louis, 12 West. Rep. 238, 93 Mo. 415. Messrs. John K. Cowen, Hugh L. Bond, Jr., and E. J. D. Cross, for defendant in St. 41. Railroads which obtain the use of streets are responsible for injuries to private property lying upon or near such street. error: The right of transit in the use of public highways is subject to such incidental, temporary or partial obstruction as manifest necessity requires. authority Referring to Parrot v. Railroad Co. 10 Ohio St. 624, as not controlling the case then before the court, it was said: "For, whereas the court declares in that case that the owner of such lot has no more right to recover damages of the company than any citizen who resides, or may have occasion to pass, so near the street and railroad as to be subjected to like discomforts, the Act in question expressly [431] [432] authorizes an action and recovery for injuries | quiry in every case, under the statute in ques [433] This interpretation of the statute is, in our One of the questions discussed at the bar was as to the right of the plaintiff to recover damages in this action on account of the obstructions placed in Union and Thirty-First Streets during the building of the railroad, whereby access to his property by way of Union Street, as well as through the alley in the rear, was materially obstructed, We are of opinion that the temporary injury sustained by the plaintiff on account of such obstructions cannot properly be said to have been done to the property itself, within the meaning of the statute. The in The point was pressed at the bar, that, as no proof was introduced by the plaintiff to overcome the denial by the defendant in its answer of his ownership of the property in question, any errors committed by the court as to other issues made by the pleadings are immaterial, since the peremptory instruction was proper in view of the plaintiff's failure to prove his ownership. This objection is too technical and cannot be sustained, as the property is repeat edly referred to in the record as being owned by the plaintiff, and the court so assumed in its rulings. After the exclusion of competent evidence introduced and offered in behalf of the plaintiff upon the issue as to the injury done to the property, his ownership being unquestioned except by a formal denial in the answer, and [434] [343] the issue as to the injury being treated as the real point of inquiry, we ought not to affirm for the want of affirmative proof in the record of such ownership. It results from what we have said that the plaintiff was entitled to go to the jury upon the issue as to the damage he sustained, if any, by reason of the access to his property during the construction of the track being unnecessarily and materially obstructed by the company, as well as upon the issue as to the depreciation, if any, in the value of his property, as the direct and necessary result of the permanent occupancy of Thirty-First Street by the track and structures of the company. Evidence was of fered which tended to support those issues, upon his part, and was improperly excluded. The judgment is reversed with directions for a new trial, and for further proceedings consistent with this opinion. 1. Under the Act of March 3, 1885, 23 Stat. at L. 385, the crime of murder, committed by an Indian within a Territory of the United States, is an offense against the laws of the Territory, and such Indian is subject for such crime, not to the criminal laws of the United States, but to the laws of the Territory. 2. The statute makes no distinction in regard to whether the crime was committed by the Indian on or off an Indian Reservation. 3. Such offense should be tried by the District Court of the United States, sitting to administer the laws of the Territory and exercising the functions of a territorial court, and not while exercising its functions as a court of the United States administering its laws. 4. The indictment, the venue of the trial, and the Jury are to be according to the territorial laws. [No. 7, Original.] Argued March 18, 1889. Decided April 15, 1889. PETITION for writ of habeas corpus to the Marshal of the United States for the Territory of Arizona, commanding him to produce the petitioner who is held by him in prison under sentence of death for murder. Ordered that the habeas corpus issue. The facts are stated in the opinion. Messrs. 8. F. Phillips, W. H. Lamar and J. G. Zachry, for petitioner. Mr. G. A. Jenks, Solicitor-Gen., for respondent. Mr. Justice Miller delivered the opinion of the court: This is a petition for a writ of habeas corpus to be directed to the Marshal of the United States for the Territory of Arizona, who, it is alleged, holds the petitioner under a judgment of the District Court of the United States for the Second Judicial District of that Territory, which condemned him to death for the crime of murder. This crime is alleged in the indictment to have been committed by the defendant, an Apache Indian, within said district, naming no county or other location. The allegation of the petitioner is that the court which tried him had not at that time, and in the mode of trial which was pursued, any jurisdiction of the case against him. It is argued by counsel and alleged in the petition [344] that the District Courts of the United States in the Territory of Arizona, as in all other Territories, have two distinct jurisdictions: that in the one they sit to exercise the powers and to try the same class of cases that the Circuit Courts of the United States do within the States and in the same manner, while in the other they sit as courts having jurisdiction of the ordinary contests between private parties and of criminal offenses arising under the territorial laws. The controversy in this case seems to turn upon the question whether the offense for which Gon-shay-ee was tried was an offense against the laws of the United States, and was of that character which ought to have been tried by the court sitting to try such cases, or whether it was an offense against the laws of the Territory, and should have been tried under those laws and by the court sitting to administer justice under them. The petitioner alleges that the offense with which he was charged was of the latter class, but that he was tried by the der the former. court while it was exercising its functions un The record of the case commences with the following statement of the finding of the in dictment: "IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT, COUNTY OF MARI COPA, TERRITORY OF ARIZONA. of all cases arising under the Constitution and "May Term, A. D. 1888, sitting for the trial laws of the United States, and having and exercising the same jurisdiction in all cases arising under the Constitution and laws of the United States, as is vested in the Circuit and District Courts of the United States, at a term thereof held at the City of Phoenix, in the County of Maricopa, in said district and Territory, on the 29th day of May, A. D. one thousand eight hundred and eighty-eight. "THE UNITED STATES OF AMERICA 08. Indict ment. GON-SHAY-EE. "SECOND JUDICIAL DISTRICT, Territory of Arizona. "The grand jurors of the United States of America, within and for the Second Judicial District, Territory of Arizona, being duly impaneled, sworn, and charged to inquire within and for the body of said district, of all offenses committed therein against the United States of America, upon their oath present: That Gonshay-ee, an Apache Indian, late of the Second Judicial District, Territory of Arizona, with force and arms, in said district and Territory, on or about the 5th day of June, A. D. one thousand eight hundred and eighty eight, and before the finding of this indictment, did then and there feloniously, wilfully, deliberately, premeditately, and with malice aforethought, make an assault on a human being, to wit, William Deal, in the peace of the United States then and there being, and with a certain gun, which then and there was loaded with gunpowder and a leaden bullet, and by him, the [345] [346] said Gon-shay-ee, had and held in his hands, he, the said Gon-shay ee, did then and there feloniously, wilfully, deliberately, premeditate ly, and with malice aforethought, shoot off and discharge at, to, against, and upon the said William Deal, thereby and by thus striking the said William Deal with the said leaden bullet, inflicting on and in the body of him, the said William Deal, one mortal wound, of which mortal wound the said William Deal then and there instantly died. "And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Gonshay-ee, an Apache Indian, in the manner and form aforesaid, and at the time and place aforesaid, did him, the said William Deal, feloniously, willfully, deliberately, premeditately, and with malice aforethought, kill and murder, against the peace of the United States and their dignity, and contrary to the form of the statute in such case made and provided. "O. T. ROUSE, "United States Attorney." The record of the final judgment of the court is in the following language: "UNITED STATES OF AMERICA. "DISTRICT COURT, SECOND JUDICIAL DIS TRICT OF ARIZONA. Having and exercising the same jurisdiction under the Constitution and laws of the United States as is vested in the District and Circuit Courts of the United States. "Regular May Term, A. D. 1888. "June 14, A. D. 1888. ritory of Arizona, to and within the yard of the jail of said Maricopa County, Arizona, and [347] between the hours of nine o'clock A. M. and five o'clock P. M., of that day, by said marshal, you be hanged by the neck till you are dead." It is very clear from these transcripts of the proceedings in the court below that on this trial it proceeded and considered itself as acting as a court for the trial of offenses arising under the Constitution and laws of the United States, and as administering them with the same powers as those vested in the Circuit and District Courts of the United States generally. The grand jurors are described as the grand jurors of the United States of America within and for the Second Judicial District, Territory of Arizona, being duly impaneled, sworn, and charged to inquire within and for the body of said district, of all offenses committed therein against the United States." The court was held in the City of Phoenix, in the County of Maricopa, and the offense is described as having been committed within the Second Judicial District of the Territory, without any further reference to the county in which the act was done. In the final judgment of condemnation it is declared to be rendered in the "District Court, Second Judicial Dis trict of Arizona, having and exercising the Same jurisdiction under the Constitution and laws of the United States as is vested in the District and Circuit Courts of the United States." Both the grand and the petit jurors were summoned by the Marshal of the United "Present: Hon. Wm. W. Porter, District States, and the execution of the sentence was Judge. GON-SHAY-EE, Defendant, "The defendant, being present in open court in person, and by his counsel, H. N. Alexander and L. H. Chalmers; the United States attorneys, O. T. Rouse and Joseph Campbell, present on the part of the United States. And this being the time heretofore fixed for passing judgment on the defendant in this case, the defendant Gon shay-ee was duly infor. ied by the court of the nature of the indictment found against him for the crime of murder committed on or about the 5th day of June, A. D. 1887; of his arraignment, and plea of 'Not guilty as charged in the indictment; 'of the trial, and the verdict of the jury on the 4th day of June, A. D. 1888, guilty of murder as charged in the indictment. "The defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him; and no suffi cient cause being shown or appearing to the court, thereupon the court renders its judgment that, whereas you, Gon-shay-ee, having been duly convicted in this court of the crime of murder, it is found by the court that you are so guilty, of said crime. It is considered and adjudged, and the judgment of the court is, that you, Gon-shay-ee, be removed hence to the county jail of Maricopa County, or some other place of secure confinement, and there be securely kept until Friday, the 10th day of August, A. D. 1888, and on that day you be taken by the United States Marshal of the Ter imposed upon that officer, who now holds the prisoner in custody under it. If the court which tried the prisoner had been sitting for the trial of offenses committed against the territorial law, all this would have been different. The grand jury would have been summoned for the county in which the act was committed, and from the body of that county, by its sheriff; and the case would have been tried by the court sitting in that county, unless for exceptional reasons, which do not appear in this case. The prisoner would, on would have had the execution of the sentence conviction, have been held by the sheriff, who committed to him under a warrant from the court. the nature of the jurisdiction and the mode in [345] All these circumstances are so variant, in which it must be exercised, that the conviction of the prisoner under the one mode by the law prescribed for the procedure under the other cannot be held to be within the power of the court which proceeded under the wrong jurisdiction. That there exists this system of a distinct jurisdiction, administered by the same court, in the Territory of Arizona, as it does in nearly all the others, is undoubted. The language of section 1910 of the Revised Statutes functions of the courts of the United States in points very clearly to this distribution of the the Territories. It reads as follows: "Each of the district courts in the Territories mentioned in the preceding section shall have and exercise the same jurisdiction, in all cases arising under the Constitution and laws of the United States, as is vested in the Circuit and District Courts of the United States; and the 49] first six days of every term of the respective It may be safely assumed that the practice The following language was used by this court in Ex parte Crow Dog, 109 U. S. 556, 560 [27: 1030, 1032]: "The district court has two distinct jurisdictions. As a territorial court it administers the local law of the territorial government; as invested by Act of Congress with jurisdiction to administer the laws of the United States, it has all the authority of circuit and district courts; so that, in the former character, it may try a prisoner for murder committed in the Territory proper, under the local law, which requires the jury to determine whether the punishment shall be death or imprisonment for life (Laws of Dakota, 1883, chap. 9); and, in the other character, try another for murder committed within the Indian reservation, under a law of the United States, which imposes, in case of conviction, the penalty of death. Section 2145 of the Revised Statutes extends the general laws of the United States as to the punishment of crimes committed in any place within their sole and exclusive jurisdiction, except the District of Columbia, to the Indian country, and it becomes necessary, therefore, to inquire whether the locality of the homicide, for which the prisoner was convicted of murder, is within that description." Indian or other person any of the following This is the last section of the Indian appro- ans was discussed. The latter case arose under the Statute of 1885, now under consideration, which was con strued in the opinion of the court, and the distinction clearly pointed out between offenses committed against the laws of the United of the Union, and those committed within the States within the limits of an organized State Territories. It is there declared that the enactment is clearly separable into two distinct definitions of the conditions under which Indians may be punished for the same crimes. The first is where the offense is committed within the limits of a territorial government, whether on or off an Indian Reservation, and "The second is where the offense is committed by one Indian against the person or property of another, with in the limits of a State of the Union, but on an Indian Reservation." [350] The question in this case is whether the of fense charged against Gon-shay ee was one committed against the laws of the United States, within the meaning of the distinction which we have been taking; or whether it was an offense In that case the offense was charged to have against the laws of the Territory, to be pun- been committed within the boundaries of a ished by a court proceeding under its laws. State of the Union, and the Indian was tried in It may be conceded that prior to the Statute of the Circuit Court of the United States for the 1885, so far as Indians could be punished for District of California, from which a certificate offenses of this kind in any court, either of a division of opinion was made to this court, [351] federal or territorial, the jurisdiction would be- embracing the question whether a murder com. long to the one sitting under the first branch mitted by an Indian on the Reservation of Hooand exercising the judicial functions appropri- pa Valley in that State could be tried in that ate thereto. It is clearly otherwise by the Act court. We held that the statute gave this jurisof March 3, 1885 (23 Stat. at L. 385). The diction, and that it was constitutional. Inci only portion necessary for our present consid-dentally, however, in remarking upon cases of eration is the ninth section which reads as follows: "That immediately upon and after the date of the passage of this Act, all Indians, committing against the person or property of another crime committed by Indians in the Territories, " |