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April 8, 1947


The opinion of the court was delivered by: KNIGHT

The substance of the complaint herein is stated in the opinion of this court in United States v. Cattaraugus County, D.C., 67 F.Supp. 294, at page 296. It gave the reasons for denying defendant's motion to dismiss the complaint.

After denial of the motion, defendant served an answer containing eight separate defenses, to wit: (1) The complaint fails to state a claim upon which relief can be granted, (2) the Seneca Nation of Indians is the real party in interest and plaintiff may not sue alone without joining it, (3) the cause of action is in effect against New York State and none exists or has existed against defendant, (4) the State duly appropriated the lands and ever since has possessed them for highway purposes, (5) Congress expressly consented to the appropriation by Act of February 19, 1875, 18 Stat. 330, and acts amending it, (6) the Seneca Nation expressly consented to the appropriation by resolution of its Council duly adopted, (7) the Secretary of the Interior and the Commissioner of Indian Affairs duly approved and permitted such appropriation and condemnation, which was duly prosecuted to final order or judgment, the Seneca Nation being a party to such proceeding and represented by an attorney, (8) unnecessary delay and laches, lack of equity and opposition 'to the previous positions of the United States and the Seneca Nation.'

 Plaintiff, in its brief, alleges: 'The condemnation proceeding which purports to vest title in Cattaraugus County is a cloud upon the title of the Indians * * * . The only purpose of the present action is to remove the cloud on the title of the Indians, created by that judgment.'

 The complaint prays for judgment '1. Declaring said condemnations proceedings to be without authority and of no effect in so far as the lands described are concerned and setting the same aside and perpetually enjoining the defendant from asserting any right, title or interest in or to said land or any part of it or from interfering with the use and possession of the Seneca Nation of Indians thereto. 2. That the Seneca Nation of Indians be adjudged to be the owner and entitled to possession of said lands described in the complaint and every part thereof.'

 At the trial of this action on December 16, 1946, plaintiff offered in evidence the petition for condemnation, the commissioners' report, and the order of condemnation contained in the judgment roll of the N.Y. Supreme Court action brought by this defendant dated January 21, 1942. Guy C. Fargo, defendant's county clerk, produced this evidence for plaintiff. Defendant offered in evidence two letters of the Department of the Interior.

 Plaintiff's three exhibits are all entitled as follows:

 'Supreme Court: County of Cattaraugus.

 'In the Matter of the Application of the Board of Supervisors of the County of Cattaraugus to acquire certain lands in the Town of Red House in said County for a right of way for the construction of the East Randolph-Salamanca Pt. 2A C.H. 1854, from T. E. Burgett.'

 The petition, verified September 15, 1932, recites: '1. That your petitioner is the Court of Cattaraugus acting through its Board of Supervisors * * * . 2. That your petitioner desires to acquire by condemnation the following described property: (as described in the complaint). 3. That the Bureau of Highways of the Department of Public Works of the State of New York, pursuant to * * * Sections 148 to 152 of the Highway Law of the State of New York, Consol. Laws, c. 25, has directed your petitioner to acquire the lands described in paragraph two of petition by reason of the fact that the East Randolph-Salamanca Co. Highway deviates from the line of the old highway across the lands owned by the said Theo. E. Burgett and Pearl Burgett and occupied by the said 'John' Baker * * * and that such deviation was necessary and proper according to the plans and specifications of the Department of Public Works of the State of New York, and that your petitioner is required by Section 148 of the Highway Law to provide the requisite right of way for such deviation. * * * 4. Upon information and belief that the owner of said property is T. E. Burgett * * * and that said 'John' Baker lives on the said premises * * * and that the Cataraugus County Bank, by reason of a mortgage, * * * and the Seneca Nation of Indians to have some interest in or lien upon the said premises. 5. That your petitioner has been unable to agree with the owner of said property as to the compensation to be paid therefor * * * does not believe that the price demanded therefor by the owner is a reasonable and just compensation therefor * * * 7. That all preliminary steps required by law to entitle your petition (sic) to institute these proceedings have been taken by it and upon information and belief that the State of New York has either completed its work for highway purposes upon the said premises or intends in good faith to immediately commence the said construction and that your petitioner makes this application in good faith and in compliance with the law requiring and directing it to acquire such right of way.'

 Petitioner, therefore, 'prays that pursuant to Section 150 of the Highway Law, as amended, it be adjudged that the public use requires the condemnation of the real property herein described; that the petitioner is entitled to take and hold such property for the public use specified therein; that three commissioners of appraisal be appointed to ascertain and determine the compensation to be paid therefor to the owners of the land to be acquired and to all persons interested therein * * * .'

 The three commissioners filed their report on July 31, 1941. They recite that they viewed the premises, heard proofs and that named attorneys appeared for Cattaraugus County, for Pearl L. Burgett, for Cattaraugus County Bank, and for the Seneca Nation of Indians. They reported as follows:

 '4(a). We find the damages for taking the parcel of land constituting approximately 2.10 acres out of a total of approximately 12 acres, as shown on map C.H. 1854, Catt. Co., and entitled 'State of New York Department of Public Works Division of Highway, granted to be provided for East Randolph-Salamanca Pt. 2 C.H. 1854, Catt. Co. from Erie R.R. Co., reputed owner, T. E. Burgett reputed lessee' to be the sum of $ 2600.00 and interest from October 1st, 1930, which was the date on which the said plaintiff entered upon and took possession of said lands; that said damages originally accrued to and were owned by Theo. E. Burgett, who died during the pendency of these proceedings, on or about November 31st, 1936, leaving a last will and testament under the terms of which he devised and bequeathed all of his property to his wife, Pearl L. Burgett, to whom said award should be made.

 '(b) We find that the damages to the reversionary interest, the Seneca Nation of Indians, to be the sum of $ 400.00.

 '(c) That the premises taken by the County of Cattaraugus for the public improvements aforesaid, as well as that portion of the property owned by Theo. E. Burgett which was not taken for such purpose, was and is subject to a mortgage held by the Cattaraugus County Bank * * * upon which is now unpaid * * * $ 5,990.09 with interest (specified) * * * and that said Cattaraugus County Bank also has a lien incident to and as a part of said mortgage in the sum of $ 609.81, being for taxes paid upon the mortgaged premises, insurance upon the buildings thereon and for renewals paid or tendered to the Seneca Nation of Indians to preserve the term of said Indian Leases on said Theo. E. Burgett's land being held under lease for ninety nine years from the Seneca Nation of Indians.'

 The order in the condemnation proceeding, entered on January 21, 1942, confirmed the report and awards of said commissioners. It awarded '1. To Seneca Nation of Indians and to Charles E. Congdon, its attorney, the sum of $ 249.40 interest * * * as compensation for its reversionary rights in the property condemned and land so taken for such public improvement, all as stated in said report. 2. To the Cattaraugus County Bank * * * for the account of Pearl L. Burgett, individually and as executrix * * * of Theo. E. Burgett, deceased, owner, the sum of $ 4,221.00 the same including the award in the principal sum of $ 2600.00, and the further sum of $ 1621.00 interest * * * as compensation for the damages sustained by such owner of the lands so taken for said public improvement, all as stated in said report * * * .'

 In none of plaintiff's three exhibits is there any mention of the United States. The petition for condemnation purports to have been made pursuant to Sections 148 and 150, now Sections 30 and 32, of the Highway Law of the State of New York. These are general provisions. The specific one is Section 53, formerly Section 157, which reads: 'The department of public works shall have exclusive supervision and control, in the construction, maintenance and improvement of all highways and bridges constructed or to be constructed by the state on any Indian reservations, and may make and enforce such reasonable ...

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