Farris v. Bentley

141 Wis. 671 | Wis. | 1910

Winslow, C. J.

It is settled in tbis state that where the state or nation makes a patent, without reservation, of lands on a navigable stream, the patentee takes title by favor or concession of the state to the center of the stream midway between banks, regardless of the navigable channel, subject to the rights of the public in the stream; and that he also takes title to any unsurveyed island included within such limits. Chandos v. Mack, 77 Wis. 573, 46 N. W. 803; Sliter v. Carpenter, 123 Wis. 578, 102 N. W. 27. The rule is necessarily modified in the case of a river which forms the boundary line between states, because the boundary line in such cases is the center of the main or navigable channel. Franzini v. Layland, 120 Wis. 72, 97 N. W. 499. It is equally well settled that where the United States grants lands bounded by streams and makes no reservation or restriction, the grant will be given effect according to the law of the state in which the land lies (Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838) ; and where according to such local law the title extends to the middle of the stream and includes an unsur-veyed island, the United States cannot divest such title by subsequent survey and patent to another, in the absence of a showing that the island was left unsurveyed by fraud or mistake. Grand Rapids & I. R. Co. v. Butler, 159 U. S. 87, 15 Sup. Ct. 991; Whitaker v. McBride, 197 U. S. 510, 25 Sup. Ct. 530.

It necessarily follows that the survey of the island in 1905 and the patenting of the same to the defendants can have no effect on the plaintiff’s rights if his remote grantor acquired title to tire island by the patent of lot 5 on the north bank of the river in 1854.

The evidence is without dispute that the greater part of the island was north of the center line of the river at that time, though the jury found that it was not entirely north of that line; so there can be no question but that the patent carried the greater part of the island, unless it had passed with the south bank to Moses M. Strong when he purchased that bank in 1837 or when it was patented to him in 1841. But there is an entire absence of evidence from which it could be found that the island was in the south half of the river at either of these dates. True, there appears on the map of the survey of 1833-34 the outline of an island near the south bank of the river opposite the land afterwards patented to ■Strong, but whether this outline was intended to represent the island in question, as some of the witnesses thought it did, is nothing but the purest conjecture.- Neither court nor jury would be justified in finding that the island was in the south half of the river in 1833 from the mere outline on the map of something not within the limits of the property surveyed and which may have been intended to represent the island in question or may have been intended to represent one of the many evanescent, shifting sandbars which the evidence shows frequently form in the river. It follows that upon the evidence here presented it must be held that the title to all that part of the island north of the center line of the river and opposite lot 5 passed to the plaintiff’s remote grantor by the government patent in 1854, and that such title was not divested by the survey and patent of the island in 1905.

It is objected that the evidence does not certainly show that the island is opposite to the plaintiff’s land, and that the description of the property in the complaint and judgment is indefinite and uncertain. Neither of these points' is well taken. A number of witnesses testified that the island was directly opposite the plaintiff’s premises; in fact there seemed to be no dispute about it. The description of the land in the complaint and judgment is “Fraction Number Five in Section two, Township eight North, Range five east” (excepting a certain described parcel), “together with all the riparian rights appurtenant thereto, including all islands opposite the shore thereof and north of the thread of the river.” This is a sufficient description, because, with the aid of a competent surveyor, the lines can be run and the boundaries found. Ayers v. Reidel, 84 Wis. 276, 54 N. W. 588. It is to be remembered, of course, that when the boundaries of plaintiffs land reach the river they are to be produced to the center line between banks (or thread of the stream, which means the same thing), not directly north and south, but at right angles, with the line of the thread of the stream.

By the Court. — Judgment affirmed.