Fuller v. Dauphin
16 N.E. 917
Ill.
1888
Check Treatment
Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was an action of trespass, by Dauphin against Fuller, for cutting timber, resulting in a verdict and judgment for the plaintiff for $100 damages. The land upon which thе timber is alleged to have been cut, is described in the declaration as “the island in Plum river slough,” being part of the southwest quarter of section 10, and a part of the north-west quarter of section 15, township 24 north, range 3, east of the fourth principal meridian. The pleas wеre, not guilty, and a plea of liberum tenementum.

The chief question in this case seems to be one of boundary, merely. The locus in quo is аn island of five acres, in what is called “Plum River Slough,” a large running slough or arm of the ‍​‌​‌‌‌‌‌‌‌​‌‌‌‌‌​‌‌​‌​​​‌​​‌​​‌‌​‌‌​​​‌‌‌​‌‌‌​‌​‍Mississippi river, marked as “Navigable Plum River Slough” on the original gоvernment plat and survey, and being immediately below the town of Savanna, in Carroll county, in this State.

„ The plaintiff’s claim of title is under the swamр lands acts of Congress and the State of Illinois, and a conveyance of the land, in 1854, by the county of Carroll, as swamp land, and alsо under the limitation statutes of the State. Defendant’s claim of title is under a patent from the United States to Luther Bowen, of the date оf May 1,1845, conveying as follows: The west fraction of the south-west fractional quarter (west of Plum river) of section 10, in township 24, of range 3 eаst, in the district of lands subject to sale at Dixon, Illinois, containing 23-I1-^-acres, according to the official plat of the survey of said lands returned to the general land office by the surveyor general. The question is, whether this description embraces this island.

The land is described in thе declaration as parts of two fractional quarter sections in sections 10 and 15, hut the proof only showed the cutting of timber on thе north end of the island, located entirely on section 10. The land conveyed by this patent is described as “west of Plum river.” Plum river appеars to be on the east and north of it, and this Plum river slough west of it. On the west of Plum river slough, and between it and the main Mississippi river, is a large island, surveyеd and platted, and sold by ‍​‌​‌‌‌‌‌‌‌​‌‌‌‌‌​‌‌​‌​​​‌​​‌​​‌‌​‌‌​​​‌‌‌​‌‌‌​‌​‍the government by patents. The land in controversy was never surveyed or platted by the general government, but in survеying the south-west fractional quarter of section 10, township 24, range 3, a meander line was run along the east bank of this navigable slough until it came down to this low piece of land, where the meander went to the east, along a bank, to the higher table land. The meander linе was not marked on the government plat of the section, but was run simply as a meander, and not as a boundary line.

Appellant insists that thе patent for this west fraction of the south-west fractional quarter of section 10, conveyed all land up to the middle thread of this navigable Plum river slough, and which would include this island. The case of Middleton v. Pritchard, 3 Scam. 510, would seem to be decisive of this question in favor of apрellant. It was there decided that the Mississippi river is not a navigable stream at common law, and that the title of a riparian proprietor whose lands are bounded by it extends to the middle thread of the stream, and includes islands which are separated from the mainland by sloughs. Such extension of the grant by the patent here would include this island, it lying east of the middle line of this navigable slough. It was also held in that case, that a meandered line which is run for the purpose of ascertaining the quantity of land in the fraction, is not a boundary. It was therе said: “But it appears the surveyor of the government traced the courses and distances along the margin of the slough next the mainland, in order to estimate the quantity of land in the fraction, and which estimate did not include the locus in quo. But the plats in the land office and surveyor general’s office have no lines marking these courses and distances as a boundary. They are taken ‍​‌​‌‌‌‌‌‌‌​‌‌‌‌‌​‌‌​‌​​​‌​​‌​​‌‌​‌‌​​​‌‌‌​‌‌‌​‌​‍-from the field notes оf meandering in the surveyor general’s office.” This was precisely the case here. Thorp, the county surveyor, testified: “This government meander line along the east bank of the swale I made simply from the field notes of the original government survey. On the original plat made by the government, in connection with these field notes, no meander line is actually marked out in any other way than simply by giving their courses аnd distances. There is no line made or given on the map. * * * According to the marking on the face of the plat, Plum river slough is the west boundаry of this land.” The witness says further: ' “A meander line is a line run along water-courses. They are run for two purposes,—one is to show the course of the stream; another is to calculate the area or number of acres inside the meander, whatever that fraction mаy be. They are never marked on the maps or drafts, but are simply preserved in the field notes. They are only so preserved in the fiеld notes of this survey.”

In Canal Trustees v. Haven, 5 Gilm. 558, in reference to a grant claimed to be bounded by the Des Plaines river, it was insisted that the stream was meandered, and a plat thereof returned to the surveyor general’s office, showing that the river was not included in the survey. The court, after remarking that such meandering appeared only by the minutes of the survey, and that neither the plats filed in the land or surveyor general’s office showed any lines marking the courses and distances along the margin of the river as a boundary of the adjoining land, say: “As there was, thereforе, no marked line upon the plat by which the grant was made, defining and limiting the land granted to the margin of the stream, the whole argument founded uрon such a supposed state of facts fails,” and then remark that a meandered line which is run for the purpose of ascertаining the quantity of land in the fraction is not a boundary, had been settled by the former decision in Middleton v. Pritchard. Houck v. Yates, 82 Ill. 179, re-affirms the decision that a meandered line is not a boundary line. The meandered line here does not include the locus in quo, but, according to thе authorities cited, a meandered line is not a boundary line, and, as stated by the surveyor, according to the marking on the face оf the plat by which the grant was ‍​‌​‌‌‌‌‌‌‌​‌‌‌‌‌​‌‌​‌​​​‌​​‌​​‌‌​‌‌​​​‌‌‌​‌‌‌​‌​‍made, Plum river slough was the west boundary of the land granted, which carried the grant to the middle of the slough, and embrаced the land in controversy. Of course a conveyance under the swamp land acts could not pass title to anything which, previously to those acts, had been conveyed by the United States.

As respects appellee’s claim of title under limitation aсts, by possession and payment of taxes under claim and color of title, there manifestly has not been shown any such possession of the land by appellee as will suffice for the acquisition of title under any statute of limitation, or otherwise.

The judgment will be reversed, and the cause ‍​‌​‌‌‌‌‌‌‌​‌‌‌‌‌​‌‌​‌​​​‌​​‌​​‌‌​‌‌​​​‌‌‌​‌‌‌​‌​‍remanded for further proceedings.

Judgment reversed.