100 Ark. 94 | Ark. | 1911
Lead Opinion
(after stating the facts). This case is unlike that of Little v. Williams, 88 Ark. 37, and is not controlled by the decision therein as contended by'appellant. There it was held that a grant of the township of land by a patent from' the Government by description, “according to the official plats of survey of said lands returned to the General Land Office by the Surveyor General, only conveyed the lands as surveyed and designated upon the plat, and did not convey lands under water shown upon the plat as 'lake.’ ” The court said:
“We do not mean to hold that the unsurveyed land could not have been selected as swamp lands and patented to the State by the use of the proper descriptive terms in the patent. But this was not accomplished by reference to townships, sections or parts thereof according to the plat of the surveys when the unsurveyed land did not appear upon the plats at all. The plats showed it to be water and not land.”
In this case the Government plat of the township of land selected by the State as swamp lands, approved and patented as such lands in accordance with the map, and “according to the official plats of the survey of said lands returned to the General Land Office by the Surveyor General,” shows the land in controversy marked “sunk lands.”
It is contended that the meander line itself shows that the “sunk lands” was a body of water, and we answer this in the language of the Supreme Court of the United States replying to a like contention:
“But it is urged that the fact that a meandered line was run amounts to a determination by the land department that the surveyed fractional sections bordered upon a body of water, navigable or non-navigable, and that therefore the purchaser of these fractional sections was entitled to riparian rights; and this in the face of the express declaration of the field notes and plat that that which was lying beyond the surveyed sections was ‘flag marsh,’ or ‘impassable marsh and water.' But there is no such magic in a meandered line. All that can be said of it is that it is an irregular line which bounds a body of land, and beyond that boundary there may be found forest or prairie, land or water, Government or Indian reservation.” Niles v. Cedar Point Club, 175 U. S. 300; see also Kean v. Calumet Canal & Improvement Co., 190 U. S. 452.
At the time of the survey it was doubtless covered with water to a greater depth than the adjoining lands, increasing in depth as the bed of the stream was approached, and undoubtedly not sectionized because of the water and the character of the land indicating its absolute unfitness for cultivation. The outside boundaries of the entire township are fixed, and the lands marked “sunk lands” upon the plat are within such outside fixed boundaries, and shown to be so, and are clearly designated by reason of the meander line dividing the unsectionized sunk lands from the surveyed and platted lands. The whole township having been selected by the State as swamp lands, and the selection having been duly approved, and the entire township patented to the State as swamp lands, with the exception of section 16, denominated “School Lands,” which passed by another grant, and the unsurveyed lands shown by the plat to be land and not water, and in fact not being a lake but temporarily under water, and by the “remarks” and field notes of the Government surveyors, who made the original surveys, shown to be low, wet and unfit for cultivation, we hold that the entire township, except said section 16, passed to the State by the swamp land grants and terms of said patent, as swamp lands. This regardless of the fact that the quantity of land contained in the township was stated in the patent and accounted for in the lands laid off in sections and subdivisions, since quantity in cases of this kind is regarded merely a part of the description, and is rejected if it be inconsistent with the actual area, when the same is indicated and ascertained by known monuments and boundaries. 3 Wash., Real Property, § 2322; 2 Devlin on Deeds, § 1044; Doe v. Porter, 3 Ark. 60; Newson v. Pryor, 7 Wheat. 7; Towell v. Etter, 69 Ark. 34.
The unsurveyed lands, or the lands designated by the meandered line and not laid off in sections and subdivisions thereof, did not pass as contiguous to the surveyed lands by riparian right, but by being delineated on the map and included within the outside boundary lines of the township as fixed and designated by the Government. The unsurveyed lands, or lands not sectionized, not being a lake or body of navigable water, could not pass by riparian right of ownership with the lands bordering upon the meander line thereof, and did not pass to the State’s grantee who purchased lands, sections and parts of sections, according to the map and plat of the Government, which showed said lands so granted to be limited to the sections and subdivisions thereof as bounded by the meander line separating the said sunk lands from them. All the lands owned by the State were granted to the St. Francis Levee District in 1893 by act of the General Assembly, and this included and passed the State’s title to all of these unsectionized sunk lands acquired by the State as swamp lands and designated as "sunk lands” on the Government plat thereof.
This grant to the Levee Board, having been made prior to the State’s settlement with the Government and relinquishment of its right to all the remaining swamp lands to which it may have had claim under the swamp land grant, was not affected by such settlement- It follows that, the title to the whole township having passed to the State, and that portion thereof not platted and designated as sections and parts of sections not having been granted by the State to its purchasers under whom appellant claimed the right to take the timber therefrom, it still remained in the State, and passed to and became the property of said district by said grant of 1893.
The district, being the owner of the land, had the- right to maintain an action against appellant for taking the timber therefrom, and, there being testimony sufficient to show that timber of the value of the amount found due and for which judgment was rendered was taken, the judgment will be affirmed.
Dissenting Opinion
(dissenting). The facts of this case bring it, according to my views, within the rules of law announced in Little v. Williams, 88 Ark. 37, and I think that case should control. The court has, in attempting to distinguish the two cases, made a distinction without a substantial difference, and, much as I dislike to see decisions overruled which constitute rules of property, it seems to me it would have been infinitely better to overrule the former decision than to leave the law in hopeless uncertainty by adopting a line of distinction which is too fragile to serve as a guide in the future.
The first point of distinction sought to be made is that in Little v. Williams the locus in quo had been designated on the plat of the public survey as a lake, and in the present case it was designated as “Sunk Lands.” In each instance it was unsurveyed, as indicated by the plat and on the field notes. It is manifest that the surveyors in marking the words “Sunk Lands” meant to designate a body of water. A careful study of the field notes makes it plain that such was the intention, and the history of those formations caused by the earthquake of 1811-12 confirms it. Lands which were sunken by that great convulsion of nature became, of course, covered by water and constituted lakes, though sometimes designated by the other name to indicate the method of formation.
If the words of designation “Sunk Lands” meant a body of water, it was the same as if marked lake, and falls squarely within the doctrine of Little v. Williams.
The distinction sought to be made as to the question of conveyance by township is, I think, equally untenable. The only difference is that in Little v. Williams the unsurveyed locus in quo indented the outer boundaries of the township, while in the present case it runs through the township. The point of the decision in Little v. Williams was that a description by reference to the plat of a township conveyed only the surveyed land in the township. The views now expressed by the majority entirely disregard the effect of the former decision, and, I think, necessarily overrule it.
