Jemison v. Bell Tel. Co. of Buffalo

• Decision Date: 21 December 1906
• Citation: 79 N.E. 728,186 N.Y. 493
• Parties: JEMISON v. BELL TELEPHONE CO. OF BUFFALO.
• Court: New York Court of Appeals Court of Appeals

186 N.Y. 493

79 N.E. 728

JEMISON

v.BELL TELEPHONE CO. OF BUFFALO.

Court of Appeals of New York.

Dec. 21, 1906.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Ejectment by Wallace Jemison against the Bell Telephone Company of Buffalo. From a judgment for plaintiff, affirmed by the Appellate Division (95 N. Y. Supp. 1137,109 App. Div. 911), defendant appeals. Affirmed.Charles B. Sears, for appellant.

Adelbert Moot, for respondent.

EDWARD T. BARTLETT, J.

The plaintiff had been for 19 years, at the time of the trial, a chief of the Tonawanda band of Seneca Indians, and for 40 years or more a resident, and exceeding 20 years a landowner, on the Tonawanda Indian reservation, in the town of Alabama, county of Genesee, and state of New York. The plaintiff's premises are briefly described as follows in the complaint: ‘It is bounded on the east by the lands of Jonathan Jemison, on the south by the West Shore Railroad, on the west by the lands of Erastus Printup, on the north by the center of the highway leading from Basom to Akron and the lands of Joseph Charles and Anna Charles, his wife.’ The defendant is a domestic corporation, organized some years before the transactions involved in this action, and has its principal office in the city of Buffalo, Erie county. The complaint charges that prior to the commencement of this action the defendant, its agents and servants, did unlawfully enter and without his authority upon said premises of the plaintiff, lying between the center of the aforesaid highway and the southerly side thereof, and did eject the plaintiff therefrom, and dug holes in, and erected telephone poles upon, and stretched wires over, said premises throughout the whole length thereof from the easterly line to the westerly line of the same, and cut and trimmed various trees that the plaintiff or his ancestors or grantees had planted on said premises. The complaint further alleges, after setting forth possession and occupancy on the part of the plaintiff, that the defendant unlawfully withholds the possession of said property, to his damage of $500. The plaintiff also avers that he brings this action in accordance with Laws 1902, p. 853, c. 296, entitled ‘An act to amend the Indian law in relation to the erection of poles and wires on the Tonawanda reservation.’ It is also alleged that the plaintiff brings this action in his individual right and to right an individual wrong. The defendant in its answer puts in issue the allegations of the complaint and sets up the following defenses, in substance: That in or about the year 1900 it obtained from the Tonawanda Nation of Seneca Indians the permission and right to erect the poles and stretch the wires and trim the trees, as alleged in the complaint, by a certain resolution adopted by the said Tonawanda Nation of Seneca Indians, paying therefor a valuable consideration; that chapter 296, p. 853, of the Laws of 1902, is unconstitutional and void, in that it is violative of subdivision 1 of section 10 of article 1 of the Constitution of the United States, in that it impairs the obligation of contracts. It is also alleged that chapter 296, p. 853, of the Laws of 1902, is unconstitutional and void, in that it is violative of and in conflict with the statutes of the United States providing for the regulation of commerce with the Indian tribes, among others section 2116 of the Revised Statutes of the United States, and chapter 832 of the Laws of the United States, passed in the year 1901 (Act March 3, 1901, 31 Stat. 1058), pursuant to the provisions of the Constitution of the United States-among other provisions, subdivision 3 of section 8 of article 1 of said Constitution.

It is proper at the outset to dispose of the constitutional and statutory defenses interposed by the defendant. The suggestion that chapter 296, p. 853, of the Laws of 1902, is in conflict with the Constitution and statutes of the United States, ignores the history of the Seneca Indians and several other Indian tribes in the state of New York. That history dates back, so far as the Seneca tribe is concerned, to a time when two charters to their lands, among others, were granted-one by Charles I of England to the colony of Massachusetts Bay and New England in 1628, and the second by Charles II to James, Duke of York, in 1664. After the Revolutionary War and the original 13 states had adopted their Constitutions, the state of Massachusetts claimed these lands in western New York under the first charter named, and the state of New York claimed them under the second charter. Commissioners were appointed by the states of Massachusetts and New York, and the result was, as announced in 1786, that the jurisdiction and sovereignty of these lands were found to be in the state of New York; that the state of Massachusetts retained the right to pre-empt these lands from the Indians and extinguish the Indian titles thereto. It is unnecessary to trace this history for the next 75 years through the negotiations and transfers that resulted in the creation of the Ogden Land Company, the Holland Land Company, and other purchases and sales of the Indian lands, many of which reflect little credit upon the transactions so far as the white men were concerned. In 1857 the Tonawanda band of Seneca Indians negotiated a new treaty, by which they surrendered the right to certain land in western Kansas, to which they had been practically exiled, and purchased of the surviving trustee of the Ogden Company 7,547 acres, comprising the present Tonawanda reservation, paying therefor $20 an acre. By the terms of the treaty these lands were conveyed to the Secretary of the Interior of the United States in trust, and in February, [186 N.Y. 498]1863, the Secretary of the Interior conveyed these lands to Lucius Robinson, the then Comptroller of the state of New York, and his successors in office, in fee, in trust for the Tonawanda band of Seneca Indians, pursuant to an act of the Legislature of the...