This case comes here from the supreme court of the state of Kansas. It is an action for the value of a cow, alleged to have been killed by the engine and cars of the Chicago, Rock Island & Pacific Railway Company, a corporation doing business in the county of Leavenworth, in that state. It was brought in a state district court, and submitted for decision upon an agreed statement of facts, in substance as follows: That on the tenth of February, 1881, a cow, the property of the plaintiff, of the value of $25, strayed upon the railroad of the defendant, at a point within the limits of the Fort Leavenworth military reservation, in that county and state, where the road was not inclosed with a fence, and was there struck and killed by a train passing along the road; that the reservation is the one referred to in the act of the legislature of the state of February 22, 1875; that a demand upon the defendant for the $25 was made by the plaintiff more than 30 days before the action was brought; and that if the plaintiff was entitled to recover attorney's fees, $20 would be a reasonable fee.
The action was founded upon a statute of Kansas of March 9, 1874, entitled 'An act relating to killing or wounding stock by railroads,' which makes every railway company in the state liable to the owner for the full value of cattle killed, and in damages for cattle wounded, by its engine or cars, or in any other manner in operating its railway. It provides that, in case the railway company fails for 30 days after demand by the owner to pay to him the full value of the animal killed, or damages for the animal wounded, he may sue and recover the same, together with a reasonable attorney's fee for the prosecution of the action. It further provides that it shall not apply to any railway company, the road of which is inclosed with a good and lawful fence to prevent the animal from being on the road. Laws Kan. 1874, c. 94.
On the twenty-second of February, 1875, the legislature of Kansas passed an act ceding to the United States jurisdiction over the reservation, the first section of which is as follows: 'That exclusive jurisdiction be, and the same is hereby, ceded to the United States over and within all the territory owned by the United States, and included within the limits of the United States military reservation, known as the 'Fort Leavenworth Reservation,' in said state, as declared from time to time by the president of the United States; saving, however, to the said state the right to serve civil or criminal process within said reservation, in suits or prosecutions for or on account of rights acquired, obligations incurred, or crimes committed in said state, but outside of such cession and reservation; and saving further to said state the right to tax railroad, bridge, and other corporations, their franchises and property, on said reservation.' Laws Kan. 1875, c. 66.
The district co rt gave judgment for the plaintiff, assessing his damages at $45, an amount which was made by estimating the value of the cow killed at $25, and the attorney's fee at $20, these sums having been agreed upon by the parties. The case was carried to the supreme court of the state, where the judgment was affirmed, that court holding that the act of Kansas, relating to the killing or wounding of stock by railroads, continued to be operative within the limits of the reservation, as it had not been abrogated by congress, and was not inconsistent with existing laws of the United States. In so holding the court assumed, for the purposes of the case, without, however, admitting the fact, that the act ceding jurisdiction to the United States over the reservation was valid, and that the United States had legally accepted the cession. To review this judgment the case is brought here.