- vs -

THE COUNTY OF ONEIDA AND THE COUNTY
OF MADISON, NEW YORK,
Defendants.

Index No. 70-CV-35
Judge McCurn

DEFENDANTS’ REPLY MEMORANDUM OF LAW
ON THE ISSUE OF GOOD FAITH

As Madison County and Oneida County (the "Counties") set forth in their Memorandum of Law on the Issue of Good Faith, in order to find that the Counties have possessed the subject properties in good faith, the Court must conclude that the Counties honestly believed they owned the subject properties and that no circumstances exist to impeach the Counties’ good faith. See Defendants’ Memorandum of Law on the Issue of Good Faith, dated October 15, 1998 (hereinafter the "Counties’ Memorandum") at 3, 16. The Counties’ Memorandum established the Counties’ good faith by demonstrating that the Counties entered into possession of the subject properties under color of title and have acted as if they owned such properties since entering into possession. Id. at 5-16. Furthermore, the Counties demonstrated that there is no evidence in the record which impeaches the Counties’ good faith. Id. at 16-22.

Plaintiffs’ Memorandum on the Good Faith Issue attempts to challenge the Counties’ claim to good faith possession of the subject properties. See Plaintiffs’ Memorandum on the Good Faith Issue, dated December 14, 1998 (hereinafter the "Plaintiffs’ Memorandum"). Plaintiffs’ arguments are without merit.

The Counties hereby reply, beginning with the various challenges the plaintiffs have made to the Counties’ claim to have entered into possession of the subject properties under color of title. Taken together, the Counties’ memoranda compel the conclusion that the Counties have possessed the subject properties in good faith and thus are entitled to a set-off for the value of improvements constructed on the properties.

A. Color Of Title Is One Important Element Of Good Faith And Has Been Established By The Counties

In their memorandum of law, the plaintiffs insist that the Counties have argued that color of title is conclusive evidence of good faith. See Plaintiffs’ Memorandum at 7, 8, 10 n.5. According to the plaintiffs: "the Counties argue at great length that the subject property is held by them under color of title and conclude that, as a result, the Counties are good faith improvers." Id. 10 n.5. The plaintiffs then proceed to knock down this straw man by alerting the Court that "[t]his is not correct." Id. at 7. However, nowhere in the Counties’ Memorandum have the Counties advanced this argument or drawn this conclusion.

On the contrary, the Counties have correctly argued that good faith depends upon "many independent facts and surrounding circumstances." See Counties’ Memorandum at 3 citing Searl v. Sch. Dist. No. 2, 133 U.S. 553, 563 (1890). Not only must such facts and circumstances show that the Counties entered into possession of the subject properties under color of title, the facts and circumstances must also show that, while in possession, the Counties acted as if they owned the subject properties. See Counties’ Memorandum at 3 citing Wright v. Mattison, 59 U.S. 50, 56 (1855); Jones v. Duerk, 25 A.D. 551, 561 (4^th Dep’t 1898). Thus, the Counties have never argued that color of title is conclusive evidence of good faith; rather, color of title is but one factor the Court should consider when determining if the Counties have possessed the subject properties in good faith.

Plaintiffs’ misstatement of the Counties’ argument is an apparent attempt to downplay the significance of color of title in the good faith analysis and thereby minimize the impact of the Counties’ establishment of color of title. According to the plaintiffs, "[t]he Second Circuit did not require that the Counties prove that they occupy under color of title" and "it serves little purpose to require each defendant to prove [its] color of title." See Plaintiffs’ Memorandum at 8, 8 n.4. Thus, the plaintiffs would like this Court to conclude that since color of title does not conclusively establish good faith, it is of no consequence that the Counties have established color of title. This is not correct.

The fact that entry upon land has been made under color of title is a very important factor for a court to consider when determining if possession of the land has been made in good faith. By establishing color of title, a possessor of land establishes that he did not enter the land as a trespasser and that his initial possession of the land was not a mere "naked trespass." Searl, 133 U.S. at 561-62; N.Y., Ontario and W. Ry. Co. v. Livingston, 238 N.Y. 300, 305 (1924). Color of title is such an important element in the good faith analysis that courts have repeatedly held that a person cannot be a good faith possessor of land without it. Wright, 59 U.S. at 56; Searl, 133 U.S. at 561-62 ("if the entry upon land is a naked trespass, buildings permanently attached to the soil become the property of the owner of the latter"). Thus, while plaintiffs may be frustrated by the fact that "virtually every defendant [in Iroquois land claim cases] occupies under color of title" because of the nature of Iroquois land claims, color of title is nonetheless a very important element of good faith and thus it is of great importance in the Counties’ favor that they have established color of title.

(i) County Roads

As the Counties’ Memorandum sets forth in detail, the circumstances surrounding the Counties’ entrance into possession of the county roads are illustrated by several statutes enacted by the State of New York beginning in the late nineteenth century. See Counties’ Memorandum at 6-11.

The earliest statutes expressly authorized the Counties to call for the construction or improvement of roads within their boundaries and thereafter to "accept" the roads from the State of New York as county roads. Higbie-Armstrong Act, 1898 N.Y. Laws 115 §§ 1, 12 (Exhibit H to Counties’ Memorandum); 1908 N.Y. Laws 330 § 123 (Exhibit J to Counties’ Memorandum); N.Y. High. L. § 123 (Consol. 1909) (Exhibit K to Counties’ Memorandum). In later years, the statutes expressly authorized the Counties to develop a county road system by designating roads within their boundaries- such as existing town highways and certain state highways -to be included within the system. Act of April 8, 1929, N.Y. Laws 362 § 17 (Exhibit L to Counties’ Memorandum). Under the current Highway Law as in effect today, the Counties are still expressly authorized to designate certain roads for inclusion within the county road system and otherwise remain expressly authorized to construct county roads within their boundaries if the interests of the county will be promoted thereby. N.Y. High. L. §§ 115, 131-b (McKinney 1979).

The cited legislative scheme clearly demonstrates that the Counties were (and are) expressly authorized by the State of New York – the very entity which created the Counties – to enter into possession and occupation of the county roads. Plaintiffs, however, argue that the cited statutes are irrelevant since the statutes do not embody formal conveyances of "title" to the county roads. See Plaintiffs’ Memorandum at 16. It is true, as plaintiffs point out, that the statutes are not formal deeds which state that "title" is being transferred to the Counties. But the Counties’ good faith at the time of entry does not depend upon the Counties’ ability to point to deeds purporting to convey full fee title to the county roads. Rather, the Counties’ good faith at the time of entry depends upon whether it appeared to the Counties that their entrance into possession and occupation of the county roads was authorized and lawful. Since the Counties were (and are) fully authorized by the State of New York to enter into possession and occupation of the county roads, it certainly would have appeared to the Counties that their entry into possession and occupation of the county roads was entirely lawful.

(ii) Champlain Battleground Park

Plaintiffs’ Memorandum provides a discussion of the history of Champlain Battleground Park for the purpose of establishing one point: Madison County had "actual knowledge of the Oneidas’ prior possession of the site." See Plaintiffs’ Memorandum at 18. However, even assuming that Madison County had such knowledge, plaintiffs do not explain to the Court how knowledge of the mere fact that the Oneidas once possessed the site more than three hundred years prior could possibly defeat Madison County’s claim to have entered into possession of the site under color of title. Apparently, in plaintiffs’ view, because the Oneidas possessed the site during the seventeenth century, Madison County should have concluded that the Oneidas held title to it when Madison County purchased the site in 1930.

However, arriving at the conclusion that plaintiffs held title to Champlain Battleground Park in 1930 merely because plaintiffs possessed it over three hundred years earlier would require a very far leap on the part of Madison County. It simply strains reason to argue that Madison County could or should have come to such a conclusion. In fact, an examination of the resolutions of the Madison County Board of Supervisors cited within Plaintiffs’ Memorandum demonstrate that Madison County believed that the persons from whom it was purchasing the site – the Robertses and the Cases – held good title to the site. See Exhibit 3 to Plaintiffs’ Memorandum. For example, the resolutions expressly refer to the Robertses and the Cases as the "land owners" of the site and refer to them as the "owners of [the] premises." Id. at 18, 94.

Moreover, according to the resolutions, Madison County was not authorized to purchase the site unless Madison County received "abstracts of title showing the premises purchased to have a marketable title." Id. at 94-95 (emphasis added). Since Madison County went ahead with the purchase of the property, the resolutions indicate that Madison County determined that the Robertses and the Cases held marketable title to the property. Thus, evidence of the circumstances surrounding Madison County’s acquisition and entrance into possession of Champlain Battleground Park compels the conclusion that Madison County believed that the Robertses and the Cases held good, marketable title to the premises. Such evidence does not, as plaintiffs suggest, support the conclusion that Madison County knew or should have known that the plaintiffs held title to the premises. It is just the opposite.

With respect to each of the subject properties, the Counties cited the following facts as supporting their claim that they entered into possession of the properties under color of title: the land ceded by the plaintiffs to the State of New York in 1795 (of which the subject properties are a part) was conveyed by formal, written treaty; the land was officially surveyed and mapped by the State of New York; and the plaintiffs received payment for the land from the State of New York. See Counties’ Memorandum at 5.

However, plaintiffs argue that the events occurring at the 1795 sale do not support the Counties’ claim that they entered into possession of the subject properties under color of title. See Plaintiffs’ Memorandum at 12-15. Accordingly, plaintiffs quote a passage from the Second Circuit detailing the following facts: the State of New York was repeatedly urged to seek and secure the appointment of a federal commissioner before negotiating the purchase of the Oneidas’ lands; the State of New York refused to do so; the 1795 sale was in contravention of the Non-Intercourse Act of 1793; the 1795 treaty was not executed by the Oneidas in the manner that treaties were typically executed by them; and the State of New York sold the ceded land to white settlers at a profit. Id. at 13-14. In plaintiffs’ view, the Counties had knowledge of the events occurring at the 1795 sale so as to preclude their claim that they entered into possession of the subject properties under color of title. See Plaintiffs’ Memorandum at 14 n. 9.

But the plaintiffs fail to show that the Counties in fact had knowledge of the events occurring at the 1795 sale and fail to cite any authority for the proposition that the Counties should be charged with such knowledge. The Counties were not present at the 1795 sale and could not have been since they did not even exist in 1795. Thus, while the events occurring at the 1795 sale might be relevant if the issue before the Court was whether the State of New York entered into possession of the subject properties under color of title, such events have no bearing upon whether the Counties entered into possession of the subject properties under color of title. Rather, the only relevant inquiry is whether the circumstances existing at the time the Counties entered into possession of the subject properties would have indicated to the Counties that they were receiving good title. At that time, it would have appeared to the Counties that the subject properties had originally been conveyed to the State of New York by an apparently valid, formal, written treaty; the land was paid for by the State of New York; and the land had been officially surveyed and mapped – all factors which would indicate that the State of New York had good title to the properties.

(iv) Effect of Deeds With Respect to Establishment of Color of Title

Plaintiffs argue that, in light of the purposes of the Non-Intercourse Act, the deeds offered by the Counties to establish color of title – and thus good faith – should not be considered by the Court. See Plaintiffs’ Memorandum at 15 n.10. According to the plaintiffs, since the Non-Intercourse Act precludes the deeds from having any effect on the liability issue, they should likewise be of no effect on the issue of damages. Id. This argument, however, has already been presented to and rejected by the Court, and should be similarly rejected here.

When the Counties first argued that they should be permitted to establish their good faith in order to receive an offset for the value of improvements, plaintiffs opposed. Citing the same cases they cite here, plaintiffs argued that "[e]quities claimed by a trespasser on Indian land cannot validate a conveyance that violates a federal restriction on the sale of tribal property. Otherwise, the public policy reflected in federal statutes restricting alienation of Indian land would be undermined." See Exhibit 2 attached hereto at 21. The plaintiffs further argued that "[a]s applied in the context of damages, the same principles indicate that defendants here should not be awarded any equitable offsets against the Oneidas’ damages claim." Id.

Judge Port, however, rejected the plaintiffs’ argument. Although he recognized that "good faith is not a defense to a common-law action for damages for unlawful use and occupancy of land," see Exhibit 1 to Plaintiffs’ Memorandum at 166a, he found that "even under the oldest cases a good-faith improver was permitted to offset the value of improvements against the damages" and, despite the purposes of the Non-Intercourse Act, it was not "necessary to treat the [C]ounties as bad-faith occupiers for the purpose of assessing and fixing damages." Id. at 166a-67a. Judge Port accordingly permitted the Counties to establish their good faith for the purpose of formulating the Oneidas’ remedy.

The conclusion of Judge Port and the Second Circuit should similarly apply here to defeat plaintiffs’ argument. The Counties are permitted to present evidence of good faith for the purpose of formulating the Oneidas’ remedy. Since the deeds are evidence of the Counties’ good faith, the Counties should be permitted to offer them on the issue of damages despite the purposes of the Non-Intercourse Act. In sum, plaintiffs’ present argument is really nothing but an attempt by the plaintiffs to recycle their twice rejected argument that the Non-Intercourse Act precludes the Counties from establishing their good faith for the purposes of formulating a remedy in this case.

B. The Counties Have Established That They Have Acted As If They Owned The Subject Properties Since Entering Into Possession Of The Properties

In addition to entry under color of title, in order to determine if a person possessed land in good faith, courts consider whether the possessor acted as if he owned the land while in possession. See Counties’ Memorandum at 3 citing Jones, 25 A.D. at 561. Thus, courts will consider a variety of factors, including whether a person has improved, repaired and maintained the property and whether the person has done so with his own funds and resources. Id.

The Counties’ Memorandum cites provisions of the current Highway Law as evidence that the Counties act (and have acted) as owners of the county roads. See Counties’ Memorandum at 14-16. By law, the Counties are charged with the responsibility of supervising and maintaining county roads. Id. at 14-15 citing N.Y. High. L. § 102(1) (McKinney 1979). The Highway Law details the acts of maintenance to be undertaken by the Counties with respect to the roads such as repair of the roads, removal of foliage from the roads, construction of sidewalks along the roads, erection of signs along the roads and the removal of snow from the roads. Id. at 15 citing N.Y. High. L. §§ 102(1), 102(11), 102(15), 102(17), 135 (McKinney 1979). Furthermore, the cited provisions provide for the Counties’ appropriation of their own funds for the purpose of constructing, reconstructing and maintaining the roads. Id. citing N.Y. High. L. § 111 (McKinney 1979).

Plaintiffs, however, claim that the Counties’ acts of ownership with respect to the county roads are "easily dismissed" because such acts only date from "1970 forward." See Plaintiffs’ Memorandum at 20. This is incorrect. Since 1898, the Higbie-Armstrong Act charged the Counties with maintenance of the county roads they accepted from the State of New York. Higbie-Armstrong Act, 1898 N.Y. Laws 115 § 12. Similarly, under the Highway Law of 1908 (which repealed the Higbie-Armstrong Act), the Counties were charged with the responsibility of improving, repairing and maintaining the county roads within their boundaries. Highway Law, 1908 N.Y. Laws 330 § 33 (Exhibit 3 attached hereto). While the provisions cited in the Counties’ Memorandum represent the Highway Law as currently in effect in the State of New York, such provisions are based on the Highway Law of 1936 (which repealed the Highway Law of 1909) and, as discussed above, were derived from even earlier pieces of legislation.

Furthermore, as additional evidence that the Counties have exercised acts of ownership with respect to the county roads, the Counties attach hereto copies of records of proceedings of the Boards of Supervisors of the Counties. Such public records, of which the Court should take judicial notice, demonstrate that the Counties have maintained the county roads (and expended their own funds to do so) since prior to 1970. (See Exhibits 6 and 7 attached hereto). Thus, contrary to plaintiffs’ assertion, the Counties have not been exhibiting acts of ownership with respect to the county roads only since 1970; rather, the Counties have been exhibiting such acts of ownership since entering into possession of the county roads.

(ii) Champlain Battleground Park and the Madison County Volunteer Firemens’ Association Radio Tower

Plaintiffs also claim that Madison County failed to show that it exercised acts of ownership with respect to Champlain Battleground Park and the Madison County Volunteer Firemen’s Association Radio Tower prior to 1970. However, in 1936, pursuant to a resolution of the Madison County Board of Supervisors, Madison County appointed a caretaker of Champlain Battleground Park and authorized the payment from county funds of compensation to the caretaker. (See Exhibit 8 attached hereto.). Furthermore, in subsequent years leading up to 1970, the Board of Supervisors of Madison County re-affirmed this appointment and the appropriation of compensation to the caretaker. (See Exhibit 9 attached hereto.) Accordingly, Madison County has maintained Champlain Battleground Park and expended county funds for such purpose since well before 1970.

Similarly, Madison County exercised acts of ownership with respect to the Madison County Volunteer Firemens Radio Tower property before 1970. Madison County purchased various pieces of equipment for the property, awarded contracts for the installation of radio service upon the property and even authorized a third party, the State of New York Department of Public Works, to use the site for its radio system. (See Exhibit 11 attached hereto).

Accordingly, since the record reflects that the Counties entered into possession of the subject properties under color of title and have acted as if they owned the properties since entering into possession, the Counties have established their good faith.

A. Contrary to Plaintiffs’ Assertion, The Fact That The Plaintiffs Have Never Notified The Counties Of Their Claim To The Subject Properties Should Not Be Dismissed Or Overlooked By The Court

Not only does the record show that the Counties possessed the subject properties in good faith, the record remains devoid of any evidence which would impeach the Counties’ good faith. Specifically, the record contains no evidence that the Counties were ever given notice of the plaintiffs’ claim to the subject properties. The plaintiffs, however, offer two reasons why their failure to notify the Counties of their claim to the subject properties should be disregarded by the Court.

First, plaintiffs claim that "[t]he absence of formal notice in county records of the Oneidas’ claim, standing alone, cannot establish the Counties’ good faith." See Plaintiffs’ Memorandum at 21. However, Plaintiffs thereafter cite cases which do not support this proposition. Id. at 21 n. 13. The case authorities cited by the plaintiffs hold that the presence of notice of an adverse claim is not determinative of good faith. Id. The Counties agree that a person may improve property in good faith despite the presence of notice of an adverse claim. See discussion infra pages 19-24. But the authorities cited by the plaintiffs do not stand for the very different proposition that the absence of notice of an adverse claim is not determinative of good faith. In fact, the law is otherwise. As the plaintiffs concede, without notice of an adverse claim, a person is by definition a good faith improver. See Plaintiffs’ Memorandum at 6 citing Green v. Biddle, 21 U.S. 1, 79 (1823). Thus, contrary to plaintiffs’ view, the absence of notice of the plaintiffs’ claim establishes that the Counties possessed the subject properties in good faith.

Second, although plaintiffs concede that they never notified the Counties of their claim to the subject properties, plaintiffs nonetheless casually attempt to dismiss this important omission by stating that it was not "appropriate" for them to notify the Counties of their claim to the subject properties. See Plaintiffs’ Memorandum at 21. According to plaintiffs, notice to the United States and the State of New York – entities which are entirely separate and distinct governmental bodies – is all that "justice" requires of them in order to receive damages from the Counties equal to the fair market value of the subject properties as improved. Id. at 21-22. With this argument, however, plaintiffs ignore what the law requires before the Counties are legally obligated to pay such damages to the plaintiffs.

Plaintiffs are not seeking to recover damages in this case from the United States or the State of New York. Rather, the plaintiffs seek to charge the Counties with the legal obligation to pay damages to the plaintiffs in an amount equal to the fair market value of the subject properties as improved. The law is clear that before the Counties are stripped of their good faith status –and thus liable to pay such damages to the plaintiffs – at a minimum, the Counties must have been given notice of plaintiffs’ claim. Plaintiffs concede that they have not given notice of their claim to the very defendants they seek to charge with the legal obligation to pay damages in this case. Notice to other entities is not enough. Accordingly, "justice" in this case requires that the Counties receive the benefit of the law as written and of the admitted fact that the Counties were never given notice of the plaintiffs’ claim to the subject properties.

B. No Other Circumstances Cited By Plaintiffs Provided Notice To The Counties Of Plaintiffs’ Claim To The Subject Properties

Not having given notice to the Counties of their claim to the subject properties, the plaintiffs are forced to point to other circumstances which plaintiffs argue provided notice to the Counties of plaintiffs’ claim. However, as demonstrated below, none of the circumstances cited by the plaintiffs even remotely provides notice to the Counties of plaintiffs’ claim to the subject properties.

Plaintiffs argue that the statute found at 25 U.S.C. § 233 should have given notice to the Counties in 1950 that the plaintiffs claimed title to the subject properties. See Plaintiffs’ Memorandum at 24-25. This argument strains logic and reason.

The statute cited by plaintiffs simply granted to the State of New York jurisdiction in certain civil actions, but excluded from that grant civil actions involving Indian lands which relate to transactions transpiring prior to 1952. 25 U.S.C. § 233 (1950). Plaintiffs, however, contend that the statute amounts to a Congressional statement that such Indian land claims in fact existed in the State of New York and that the statute "put property owners in New York State on notice regarding such claims." See Plaintiffs’ Memorandum at 25. But the statute did not state that the Indian land claims it addressed were in fact outstanding in the State of New York and it certainly did not identify any particular existing claims. Nor can the statute plausibly be read to validate or legitimize any such claim. At the most, the only Congressional statement this statute sets forth is that if an Indian land claim is asserted which arose prior to 1952, it does not belong in state court.

(ii) Newspaper Articles

In a further attempt to point to circumstances which, in plaintiffs’ view, provided notice to the Counties of plaintiffs’ claim to the subject properties, plaintiffs offer numerous newspaper articles discussing very specific, isolated (and different) Oneida land claims. According to plaintiffs, given the "notoriety of numerous Oneida land claim issues, it is unimaginable that the Counties are altogether ignorant of the Oneidas’ title claim to the subject land." Plaintiffs’ Memorandum at 26 (emphasis added). However, even assuming that the Counties were aware of the content of the cited articles, it is entirely understandable why the Counties were nonetheless ignorant of "the Oneidas title claim to the subject land" since none of the cited articles concern a claim to the subject properties.

Rather, as plaintiffs concede, the cited articles concern only land claims made by the Oneidas with respect to properties which are not at issue in this case: claims to Wood Creek, Sylvan Beach, the Village of Jewel, Fish Creek and the Boylan property. Significantly, no article is offered by the plaintiffs which states that the Oneidas claim title to the subject properties. And, given the "notoriety" plaintiffs argue Oneida land claims received in the press, if the Oneidas claimed title to the subject properties, one would expect that the claim would appear somewhere in the press just as the other claims. However, any claim to the subject properties is conspicuously absent from the seventy years of press coverage cited by the plaintiffs.

Thus, contrary to plaintiffs’ assertion, the articles did not provide notice to the Counties that the plaintiffs claimed title to the subject properties. Rather, given the "intense coverage" plaintiffs argue Oneida land claims received in the press, the fact that any claim to the subject properties did not appear even once in the press would reasonably lead the Counties to conclude that the Oneidas did not make such a claim.

Thus, since plaintiffs never notified the Counties of their claim to the subject properties and plaintiffs have identified no other source which provided the Counties with notice of plaintiffs’ claim to the subject properties, it must be concluded that the Counties’ good faith has not been impeached.

A. Since Plaintiffs’ Claim To The Subject Properties Was Never Recognized By Federal Or State Authorities, The Counties Had Reason To Believe The Claim Was Without Merit

In Searl, a public body entered into possession of land and later constructed improvements on the land in the face of specific notice of an outstanding, adverse claim to the land. Searl, 133 U.S. at 562. The issue before the Supreme Court of the United States was whether a public body which enters into possession of and improves land under such circumstances can nonetheless be a good faith possessor of the land.

The Court concluded that the public body possessed the land in good faith despite its actual knowledge of an outstanding, adverse claim. Id. at 562-63. In reaching this conclusion, the Court first noted that the public body had been advised by counsel- a person the public body could reasonably believe to have the authority to pass on the validity of the adverse claim -that the adverse claim was without merit. Id. at 562. Similarly, in the present case, as the Counties’ Memorandum sets forth and the plaintiffs concede, despite repeated complaints by the plaintiffs to many different state and federal governmental entities regarding the legality of the 1795 sale, no governmental entity would recognize plaintiffs’ claim or afford plaintiffs a remedy. Thus, even if the Counties were aware of such complaints, the United States and the State of New York, by continually refusing to recognize plaintiffs’ claim or afford plaintiffs a remedy, indicated to the Counties that plaintiffs’ claim was without merit. Therefore, the Counties, like the public body at issue in Searl, had reason to believe that plaintiffs had no claim to the subject properties that would be superior to the Counties’ claim.

Plaintiffs, however, argue that the Boylan case provided notice to the Counties that the plaintiffs’ claim to the subject properties was meritorious. See Plaintiffs’ Memorandum at 22 n.14. Boylan is not relevant to this analysis. Boylan involved an entirely different parcel than the land at issue in the present case. The property at issue in Boylan was a portion of the reservation set aside to the Oneidas by a treaty entered into between the Oneidas and the State of New York in 1842. U.S. v. Boylan, 265 F. 165, 167 (2d Cir. 1920). Boylan merely held that an Oneida could not mortgage his interest in the Oneida reservation to an outsider without the consent of the United States and without complying with the law of the State of New York which authorized the treaty. Accordingly, Boylan says nothing about the legality of the 1795 treaty between the Oneidas and the State of New York. Thus, while the claim in Boylan concerning the Oneida reservation may have been successful, the fact still remains that federal and state authorities refused to recognize plaintiffs’ claim that the 1795 treaty was unlawful. In fact, even after Boylan was decided, plaintiffs’ claim concerning the 1795 treaty continued to go unrecognized by federal and state authorities for over fifty years. By virtue of this fact, Boylan does not undermine the Counties’ argument that they had reason to believe that the plaintiffs’ claim to the subject properties was without merit; it reinforces it.

B. The Counties Have Never Employed Improper Means To Defeat Plaintiffs’ Title

It is clear from Searl that even if a public body has knowledge of an outstanding adverse claim, this does not, in itself, indicate bad faith. Searl, 133 U.S. at 564. Accordingly, in the view of the Court, "knowledge of an adverse claim to, or lien upon property, does not, of itself, indicate bad faith . . .and is not even evidence of it, unless accompanied by some improper means to defeat such claim or lien." Id. As the Counties’ Memorandum thoroughly sets forth, even if the Counties did have knowledge of plaintiffs’ claim (which the Counties deny), there is absolutely no evidence in the record to show that the Counties have exercised any improper means to defeat or deny plaintiffs’ title and plaintiffs have not offered any such evidence. See Counties’ Memorandum at 20-22. Rather, as the public body in Searl, since the time the Counties entered into possession of the subject properties, the properties have been used only for the benefit of the public (including the plaintiffs) and the Counties have understandably relied upon indications from the State of New York and the United States that the Counties were entitled to possess the properties. Searl, 133 U.S. at 562.

Plaintiffs counter the Counties’ assertion that they cannot be bad faith possessors in the absence of the exercise of improper means to defeat plaintiffs’ title by stating that it "flies in the face of precedent" and that while "fraud may establish bad faith, . . .fraud is not a necessary element of bad faith." See Plaintiffs’ Memorandum at 22-23. However, the relevant precedent is the Supreme Court’s decision in Searl. That decision unmistakably states, in a case in which a public body entered and improved property with actual knowledge of an adverse claim, "the knowledge of an adverse claim to, or lien upon property, does not, of itself, indicate bad faith in a purchaser, and is not even evidence of it, unless accompanied by some improper means to defeat such claim or lien." Searl, 133 U.S. at 564 (emphasis added).

Plaintiffs then attempt to construe Searl narrowly by arguing that the absence of the use of improper means to defeat the better title is only relevant for purposes of determining whether a person entered into possession of the land in good faith (i.e. whether color of title exists). See Plaintiffs’ Memorandum at 23 n.15. Thus, in plaintiffs’ view, the absence of the use of improper means to defeat the better title is not relevant for purposes of determining whether the person’s subsequent possession of the land or construction of improvements on the land was done in good faith. Id. It is true that Searl states that "the good faith required … in the creation or acquisition of color of title, is a freedom from a design to defraud the person having the better title." Searl, 133 U.S. at 564 (emphasis added). In fact, in Searl the primary focus of the Court seemed to be the public body’s conduct at the time it entered the property since the public body knew about the adverse claim at that very time. However, the Court in Searl also looked to see whether the public body exercised improper means to defeat the adverse claim when it erected improvements on the land. This is evidenced by the Court’s finding that the public body had constructed improvements on the land with "similar good faith" as it had demonstrated when it entered into possession of the land. Id. at 563. Thus, the absence of the use of improper means to defeat plaintiffs’ title is not only relevant for purposes of determining whether the Counties entered the subject properties under color of title, it is also relevant in determining whether the Counties subsequent possession of the subject properties was in good faith and whether the Counties’ construction of improvements upon the properties was in good faith – in short, whether the Counties "acted throughout [their possession of the subject properties] in good faith." Id. at 562.

Finally, plaintiffs argue that the improper means used by the State of New York to defeat the plaintiffs’ title should be "imputed" to the Counties, thereby rendering the Counties bad faith possessors of the subject properties. See Plaintiffs’ Memorandum at 23 n.16. However, this is yet another previously rejected argument which the plaintiffs are attempting to recycle. See Exhibit 2 attached hereto at 23 n.16 (wherein plaintiffs argue that the Counties are chargeable with the state’s bad faith). The last time the plaintiffs advanced this argument, Judge Port specifically found that there was absolutely no basis upon which to charge or "impute" the Counties with the bad faith of the State of New York. See Exhibit 1 to Plaintiffs’ Memorandum at 167a.

In sum, even if the Counties had knowledge of plaintiffs’ claim, under the authority of Searl it would not impeach the Counties’ good faith since the Counties had reason to believe that the plaintiffs’ claim was without merit and the record contains no evidence that the Counties exercised improper means to defeat or deny plaintiffs’ title to the subject properties.

The Counties memoranda establish that the Counties entered into possession of the subject properties under color of title and, since entering into possession, have acted as if they owned the properties. Furthermore, the record contains no evidence which would impeach the Counties’ good faith. Accordingly, the record compels the conclusion that the Counties have possessed the subject properties in good faith and are thus entitled to a set-off for the improvements constructed upon the properties for the public's use and benefit.

As stated in the status conference before the Court on September 2, 1998, if the Court determines that the record, as augmented by the Exhibits attached to the various memoranda submitted on this issue, is insufficient to permit the clarification of Judge Port’s determination of good faith, the Counties request that a schedule be set for discovery and a hearing.

Dated: January 29, 1999
Rochester, New York

Nixon, Hargrave, Devans & Doyle llp

By:

G. Robert Witmer, Jr., Esq.
Bar Roll No. 104937
Attorneys for Counties of Madison and Oneida
Clinton Square
P.O. Box 1051
Rochester, New York 14603-1051

Telephone: (716) 263-1000
Facsimile: (716) 263-1600

David M. Schraver, Esq.
Stacey L. Stritzel, Esq.
On the Brief
^R262232.3