The relator acquired its rights and title of the Seneca nation of Indians under and in pursuance of the act of 1836, chapter 316, by which it was made lawful for any company that had been or should thereafter be chartered, to contract with the chiefs of any nation of Indians, over whose land it might be necessary to construct a railroad, for the right to make such road upon such lands; but no such contract should “ vest in any railroad company a fee in such lands.”
By the Revised Statutes, all lands and all personal estate within this state, whether owned by individuals or by corporations, are made liable to taxation, subj ect to certain exemptions specified. (1 R. S. 387, § 1.) It is declared that the term' land shall be construed to include the land ■ itself and buildings and other articles erected upon or affixed to the same, all trees, &c.
*107Ho tax can be imposed or assessed on any of the Indian reservations belonging to the Seneca nation of Indians. (Sess. Laws, 1857, p. 72, § 4.) This was so, independent of the statute. (Fellows v. Denniston, 23 N. Y. Rep. 420. See also Wadsworth v. Buffalo Hydraulic Association, 15 Barb. 83.)
The relator claims that the land assessed is apart of the Allegany Indian reservation, and that it remains the property of the Seneca nation, within the meaning of the act of 1857. The assessors claim that the land assessed is owned by the relator, within the contemplation of the Revised Statutes, (supra,) and that there is no valid reason why it is not to be taxed as the property of the relator.
In my opinion the position of the assessors is sound. I think the land assessed is “ owned” by the relator, within the contemplation of the Revised Statutes, touching taxation. The fee of the land is not vested in the relator. This the statute of 1836 prohibits; and it is probable that the legislature could not have authorized the relator to acquire an absolute fee—certainly not without compensation to the pre-emptive proprietors of the lands, the Seneca nation of Indians. As to .the title of the Indians and the rights of the pre-emptors, and the jurisdiction of the state over the Indian reservations, see Wadsworth v. The Buffalo Hydraulic Association, (supra.) The statute of 1836 authorizes railroad companies to contract with the Indians “for the right to make such road upon such lands,” the Indian reservations. The enjoyment of the right is not limited by the statute. It must depend upon the contract. In the present case there is no limitation of time, in the contract. It is provided, however, that the contract shall not vest in-the railroad company the fee of the lands described, nor the right to occupy the same for any purposes other than what may be necessary for the construction, occupancy and maintenance of such railroad. This view is strengthened by a reference to the Session Laws of 1857, chapter *108536, amending the Revised Statutes. It is made the duty of railroad corporations to deliver to the assessors in the town or ward into which any part of their road shall run, or in which they own or are in possession of, any real estate, a classified list of all real estate owned or in possession of, the company in the town or ward, specifying the whole number of acres of land owned, possessed or appropriated for their use, with a valuation. The assessors, in fixing the value, are to take the valuation of the company as prima facie evidence of the value thereof. These statutory provisions clearly show that all real estate owned, possessed or appropriated for use by railroad companies is to' be assessed. It was not intended, by the “ act to relieve the Seneca nation of Indians from certain taxes on the Allegany and Cattaraugus reservations,” passed-February 19, 1857, to affect any of the provisions of the general law herein referred to. The tax is not to be assessed or imposed on the reservations or any part of them, for any purpose, so long as the reservations remain the property of the Seneca nation. The land possessed and used by the relator has ceased to be the property of the Seneca nation, to the extent specified in the contract with the relator. The fee of the land has not passed to the relator’, but the possession and use, and the right to possess and use.
[Erie General Term, November 16, 1868.I think the assessors have not erred, and that the proceedings should be affirmed, with costs.
Daniels, Marvin and Darker, Justices.]