The opinion of the court was delivered by
Horton, C. J.:The plaintiff in error (plaintiff below), as appears by the testimony, is a native of Kentucky, and a citizen of the United States. He emigrated to the territory of Kansas in 1853, and soon married a Delaware-woman, a member of the Delaware tribe of Indians, but was not adopted into the tribe. In 1854, he established his residence on the Delaware reservation in this state, and has since lived there with his wife. To them have been born ten children. On the 15th day of July, 1872, he brought this action in the district court of Wyandotte county, against the Kansas Pacific *651railway company, to recover damages in the sum of $5,675, for an alleged trespass upon certain lands claimed to be in his possession and occupation, but which, theretofore, had been selected and set apart as the property of the wife and children of the plaintiff, in severalty, under the provisions of the treaty with the Delawares, ratified and proclaimed August 22,1860, generally known as the treaty of May 30, 1860. Art. 1 of the treaty stipulates that —
“. . . The Delawares having represented to the government that it is their wish that a portion of the lands reserved for their home may be divided among them, in the manner contemplated by the eleventh article of the treaty aforesaid, it is hereby agreed by the parties hereto, that the said reservation shall be surveyed as early as practicable after the ratification of these articles of agreement and convention, in the same manner that the public lands are surveyed, and to each member of the Delaware tribe there shall be assigned a tract of land containing eighty acres, to include in every case, as far as practicable, a reasonable portion of timber, to be selected according to the legal subdivisions of survey.”
Art. 2 further stipulates: “. . . Certificates shall be issued by the commissioner of Indian affairs for the tracts assigned in severalty, specifying the names of the individuals to whom they have been assigned respectively, and that the said tracts are set apart for the exclusive use and benefit of the assignees and their heirs, and said tracts shall not be alienable in fee, leased, or otherwise disposed of, except to the United States or to members of the Delaware tribe, and under such rules and regulations as may be prescribed by the secretary of the interior; and said tracts shall be exempt from levy, taxation, sale or forfeiture, until otherwise provided by congress. . . . And should any of the Indians to whom tracts shall be assigned, abandon them, the said secretary may take such action in relation to the proper disposition thereof as in his judgment may be necessary and proper.”
The breaking and entering of the alleged close of plaintiff occurred in November, 1863. About that time the railway company, for the purpose of constructing its road, under the act of congress approved July 1st, 1862, entered upon and took possession of certain portions of the land described in *652the petition as a right of way; used timber and stone adjacent to its track, and made cuts and tills, and completed its line of railway over the land, without compensating the plaintiff, or his wife or children. After the first entry, in 1863, the possession of, the right of way has been continuous,, during which time certain stock has been killed by the railway company in the operation of its road.
The defendant answered the petition, first, by a general denial; second, by setting up the two-years statute of limitations; third, that the defendant entered, if at all, into said premises by and under a license of and from the plaintiff so-to do; fourth, that the defendant entered, if at all, into and upon the lands by and under the authority of the United States, as authorized by the treaty of May 30,1860, between the United States, and the Delaware Indians; and in pursuance of the act of congress of July 1, 1862, granting to-the defendant a right of way over and across the land. The-plaintiff in his reply, denied each and every allegation contained in the second, third and fourth grounds of defense.
The case was tried at the October term of the court for 1873. On the trial, plaintiff produced testimony tending to prove his possession since and prior to November 1, 1863;. that a portion of the land had been by him fenced before that time, and that he was then cultivating it; that it had all been fenced and put in cultivation by the plaintiff since that time, and before the commencement of this action; that the defendant entered into and upon said land with force,, and without the consent of the plaintiff, and has from that time up to and until the commencement of this suit, continued to break into and upon said land; that while he. was upon the same, the defendant threw up, over and across the-land a railroad track, and put down wooden ties and iron-rails thereon, kept the same permanently there, and continued to run large numbers of heavily-loaded cars, drawn by heavy steam locomotive engines, over and across the land at divers days and times up to and until the commencement of the action. The other facts have already been stated. The *653•defendant demurred to the evidence for the reason that it was insufficient to authorize any recovery. The court sustained the demurrer, and rendered judgment against the plaintiff for costs. He excepted, and brings the case here.
We need really consider only the fourth defense, and the. matters therewith connected, as the final disposition of this case and the merits, particularly of other cases pending, largely turn upon the construction and effect of the provisions of the treaty of 1860, and the act of congress of July 1,1862. No negligence was shown on the part of the defendant in the injuries to the cattle and hogs, and those injuries having been committed prior to the stock law of 1874, may be regarded, like the allegations and proof of the cutting of timber on the land, as mere matters of aggravation to enhance the damages. Art. 3 of the treaty of 1860 stipulates:
“It is also agreed that the said railroad company [the Leavenworth, Pawnee & Western railroad company] shall have the perpetual right of way over any portion of the lands allotted to the Delawares in severalty, on the payment of a just compensation therefor, in money, to the respective parties whose lands are crossed by the line of railroad.”
Sec. 2 of the act of congress of July 1, 1862, provides:
“That the right of way through the public lands be, and the same is hereby granted to said company for the construction of said railroad and telegraph line [the Union Pacific railroad company]; and the right, power and authority is hereby given to said company to take from the public lands adjacent to the line of said road, earth, stone, timber and other materials for the construction thereof. Said right of way is granted to said railroad to the extent of two hundred feet wide on each side of said railroad where it may pass over the public lands, including all necessary grounds for stations, buildings, workshops and depots, machine shops, switches, side-tracks turn-tables, and water stations. The United States shall extinguish, as rapidly as may be, the Indian titles to all lands falling under the operation of this act, and required for the said right of way and grants hereinafter made.”
Sec. 9 further provides that—
“The Leavenworth, Pawnee & Western railroad company of Kansas, is hereby authorized to construct a railroad *654and telegraph line, from the Missouri river at the mouth of the Kansas river, on the south side thereof, so as to connect with the Pacific railroad of Missouri, to the aforesaid point, on the one-hundredth meridian of longitude west from Greenwich, as herein provided, upon the same terms and conditions in ali respects as are provided in this act for the construction of the railroad and telegraph line first mentioned, and to meet and connect with the same at the meridian of longitude aforesaid,” etc.
The defendant is admitted to be the successor of the Leavenworth, Pawnee & Western railroad company, and entitled to all the rights, franchises and powers of the latter company. The Kansas Pacific railway company was originally chartered in 1855, by the territory of Kansas, under the name of the Leavenworth, Pawnee & Western railroad company, mentioned in the said ninth section of the act of 1862, and afterward, in 1863, received the name of the Union Pacific railway company, eastern division, and finally, in 1869, the name by which it is sued herein.
On the part of the plaintiff, it is claimed that the government cannot extinguish the general Indian title by mere congressional grant; that the provision of the act of July 1, 1862, for the extinguishment of the Indian titles to all the lands required for the right of way of the various railroad companies therein named, had reference solely to the territory occupied by wild or blanket Indians, and not to reservations secured by treaty, and occupied by Indians partially or wholly civilized; and, finally, that a grant of a right of way for the road of the defendant over any portion of the lands allotted to the Delawares in severalty without the payment of just compensation therefor, would involve such a gross breach of the public faith, that the presumption is conclusive that congress never meant to grant it.
On the' other hand, the defendant contends that congress had the exclusive right and dominion over the entire Delaware reserve, and that by virtue of such right, it had the authority to permit the entry and the construction of the defendant’s road, either with or without compensation to be paid *655by the company; that as the road, in the way prescribed by congress, was to be constructed necessarily through the Delaware and Pottawatomie reservations, and as these were the only Indian lands between the mouth of the Kansas river on the east side to its junction with the Union Pacific road, reservations secured by treaty were as much included in the grant as the territory of the wild tribes, for if the grant was not through the Delaware and Pottawatomie reservations, there was no grant of right of way whatever to defendant through these reservations; that in brief, the grant of 1862 overrides all treaties prior and subsequent, even to the extent, if necessary, of violating treaty stipulations.
We have had occasion very recently to examine quite fully the question of Indian titles in the case of Veale v. Maynes, ante, p. 1. In accordance with the uniform decisions of the supreme court of the United States, we there decided that allotments to Indians upon Indian reservations must be construed in the light of the recognized relations between the government and the Indians, and the established policy of the former toward the latter; that title does not necessarily mean title in fee simple; that it may mean any kind of title, even the mere title by occupancy; that the Indian title has been constantly recognized as simply this inferior title; that the government has uniformly asserted its holding of the fee, and has recognized the Indian right as only one of possession. In that case, the Pottawatomie treaties of 1846, 1861 and 1867 were before us for interpretation, and the words “possession and title,” and “to guarantee the full and complete possession ... as their land and home forever,” employed in the treaty of 1846, to characterize the estate granted to the Pottawatomies, were certainly as strong,if not stronger, than any of like import used in the Delaware treaty of 1860. We conclude therefore that there is nothing in or about the treaty of 1860 to indicate that any other right or title was granted to the allottees or assignees, or their heirs, by the stipulations of articles 1 and 2, than the right of occupancy with the ultimate fee of the land vested in the *656United States. With this result obtained, it logically follows that congress had the power to make the grant contained in section 2 of the act of July 1, 1862, if it really meant that the grant should include rights of way through reservations secured by treaty. (Rld. Co. v. United States, 92 U. S. 733, 744.) The act of congress of March 3, 1863, donating lands to aid in the construction of certain railroads in Kansas, granted the right of way through reserved lands for these roads, and while the supreme court of the United States has held that the act did not dispose of the Osage lands to the railroad companies, no oue has as yet, as we are aware, questioned the grant for the right of way through the ceded or reserved lands.
By the last clause of section 2, the United States agreed to extinguish as rapidly as might be the Indian titles falling under the operation of the act, and required for the right of way. The language is broad and comprehensive, and not restricted to the territory of wild tribes. The only Indian lands upon the line of defendant’s road were reservations secured by treaty. It was either a grant to the defendant through these Indian lands, as well said by counsel, or it was no grant to it through any Indian lands. By the act of 1862, the companjq which the defendant succeeded, was required to file an acceptance of its provisions within six months after its passage, and to complete one hundred miles of its road, commencing at the mouth of the Kansas river, within two years thereafter; so, immediate and urgent action was demanded. If the grant did not include the Delaware reservation, all attempts to construct a road west from the mouth of the Kansas river over the reservation must have been suspended until arrangements were completed with the allottees on the lands. This would have been an insuperable obstacle to laying out a right of way, and constructing the road. The lands were withdrawn from the operation of state laws, and neither the charter of the company nor the general laws of the state could be resorted to for power to condemn them.
The company had no authority to exercise the right of *657eminent domain within the reserve; and without the power and obligation of the United States to extinguish for its benefit and use the Indian title for a right of way, it can hardly be supposed that the company would have assented to the conditions of the act of 1862, or attempted afterward the construction of its road over and across these Indian lauds. Under all the circumstances, we think that within the meaning and scope of the act of 1862, the purpose of congress was to permit the entry and the construction of the, road of the Leavenworth, Pawnee & Western railroad company through the reservation without compensation on the part of the company. This view seemingly requires us to coifsider the objection, whether such a grant would not involve a breach of public faith with the Delaware allottees, over whose lands the right of way of the road was located. While this question may not absolutely affect the power of congress in the premises, yet we cannot well assume that there was any intention by the adoption of the act of 1862 to violate treaty obligations. Previous to the passage of the act, the treaty of 1860 had been duly concluded and proclaimed. Special provision had been made in article 3 for a perpetual right of way over the lands allotted to the Delawares in severalty for the Leavenworth, Pawnee & Western railroad company on the payment of a just compensation in money to the respective parties whose lands were to be crossed by the line of railroad. This was an agreement between the United States and the Delawares, to which the latter company was not a party, and it could not obtain the benefit of the contract except by permission of congress. By the act of 1862 the Leavenworth, Pawnee & Western railroad company became an associated enterprise of the Union Pacific railroad company. The general history of the legislation of congress in reference to this national undertaking for national purposes, and the policy of the government respecting the same, need not be stated here at length, as they are forcibly set forth by Mr. Justice Davis, speaking for the *658court, in the case of The United States v. The Union Pacific Rld. Co., 91 U. S. 72. Therefore it is sufficient to say that congress undertook to enlist private capital and enterprise in the construction of the system of the Pacific railroads when a war of rebellion was in progress and the life of the nation in imminent peril, and agreed to aid the companies having charge of the construction of the roads on account of the supposed advantages — military, postal and otherwise — which the public would derive from the completion of the projected railways. The Delawares had stipulated that the Leavenworth, Pawnee & Western railroad might have a right of way through their reservation upon compensation being paid. The United States agreed to extinguish the Indian titles for the right of way of the Pacific roads as an additional aid to the enterprises, and to induce their early construction. The Leavenworth, Pawnee & Western railroad was incorporated into the system, and the United States assumed the obligation to give it the right of way through the Delaware reservation. This it could do within the exact terms of the treaty of 1860, by paying the Delaware allottees just compensation therefor. Whether such allottees have made a demand of the government for this compensation, we are not advised; clearly, the government, and not the defendant, if anyone, owes the compensation. With this construction and interpretation of the treaty of 1860 and the act of congress of 1862, all is harmony. The Indians are fully protected in their treaty guaranties, and the railway company is protected and secured in its right of way over the Indian lands.
Thus far in our consideration, we have treated the case as if the plaintiff was a member of the Delaware tribe of Indians, and entitled to the rights of an allottee under arts. 1 and 2 of the treaty of 1860. Such, however, is not the fact. He is an intruder on the lands of the tribe. He has no right to plead the treaty of 1860 in his behalf, nor is he authorized to claim any of its guaranties.
*659The court properly sustained the demurrer, and therefore the judgment will be affirmed.
All the Justices concurring.