Majority
p. 628Fellows, survivor, &c. vs. Lee & Ellsworth.
Headnote
The title of the native Indians to their lands, is an absolute ownership. Tha right of pre-emption of lands in the western part of this state, ceded to Massachusetts, by the convention of 1786, was simply a right to purchase the lands from the Indians when they chose to sell them.The grantee of the pre-emptive right, cannot maintain trover for saw logs cut on such lands by the Indians and sold to the defendants.
Error from the supreme court. The action was trover for a quantity of saw logs cut by the Indians occupying the Cattaraugus reservation, and sold by them to the defendants. The plaintiffs claiming title under the pre-emptive right secured to the state of Massachusetts, by the convention made between Massachusetts and New-York, in 1786. The facts of the case, and the opinion of the court by Bronson, J. are contained in 6 Hill, 546 , et seq. The cause was here argued by
J. Mullett & H. W. Rogers, for plaintiffs, and
S. G. Haven & M. Filmore, for defendants.
Senators Barlow, Porter, Putnam and Spencer delivered written opinions in favor of affirming the judgment, upon the ground. maintained by the supreme court, that the Indian title to lands is an absolute fee, and that the pre-emption right conceded to Massachusetts, was simply a right to acquire by purchase from the Indians their ownership of the soil, whenever they should choose to sell it.
Upon the question being put: “ Shall this judgment be reversed 7” twenty senators, being all the members of the court who heard the argument, voted for affirmance.
Judgment affirmed.