84 F. 287 | 8th Cir. | 1897
This is a suit in ejectment. The plaintiff in error sued the defendant in error in the lower court to recover the possession of a tract of land in the city of Minneapolis, Minn., which was a part of a formerly well-defined island in the Mississippi river. He deraigned his title to the land in question under a patent issued by the United States to Peare Botenau (properly spelled Pierre Bottineau), on March 25, 1849, whereby there was granted to the pat-entee, his heirs and assigns, “the northwest quarter of the southwest quarter and lot number one of section fourteen in township twenty-nine north, of range twenty-four west, in the district of lands subject to sale at the Falls of St. Croix, Wisconsin, containing seventy-five acres and thirty-two-hundredths of an acre, according to the official plat of the survey of the said lands returned to the general land office by the surveyor general.” The plat which appears on the following page is a copy of the public survey to which reference was made in the aforesaid patent. Lot 1, which is referred to in the patent, is indicated on the plat by red lines, and contains 35.32 acres. It will be observed
The two red parallel lines, referred to in the opinion of the court, are indicated by heavy black lines.
The red lines, referred to in the opinion of the court, are indicated by heavy black lines.
The plaintiff lays claim to Boom island on the ground that the failure of the governmen t surveyors to disclose the island by the survey made prior to March 25, 1849, to which reference was made in the patent to Bottineau, estopped the United States, after the grant to Bottineau, from thereafter surveying the island or asserting a title thereto. The plaintiff claims that the island, being undisclosed by ■the first survey, passed to Bottineau by virtue of his patent; that, by failing to plat the island, the government surveyors in effect declared that it was of no value, and of no more importance than an equiva-alent portion of the bed of the stream; and that the riparian proprietors on the east bank of the river are therefore entitled to claim such parts of the island as lie on their respective fronts, precisely as they might claim it if it was an accretion formed in front of their respective properties by the action of the currents of the river since the survey was made. It may be conceded to be the general rule that where a government survey along the banks of a navigable stream is made, and the banks of the stream are meandered, but the survey fails to disclose a small island contiguous to the shore, the riparian proprietor holding the adjacent shore land under a grant from the government is entitled to such land as appurtenant to the grant. This rule rests upon the ground that the failure to survey small islands contiguous to either shore is evidence of an intent on the part of the government to surrender all claim thereto in favor of the adjoining riparian proprietors. Railroad Co. v. Butler, 159 U. S. 87, 15 Sup. Ct. 991; Butler v. Railroad Co., 85 Mich. 246, 48 N. W. 569; Middleton v. Pritchard, 3 Scam. 510, 520; Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838. But as the rule last mentioned for* the construction of grants is founded upon the presumed intent of the government to relinquish its title to islands which are contiguous to the bank of a stream, and are not surveyed or platted, the rule in question ought not to be applied when the circumstances are such as to rebut (hat presumption. If, when the bank of a stream is surveyed and meandered, good reasons exist for not indicating on the survey the existence of an island contiguous to the shore, the mere failure to indicate it ought not to be given the effect of divesting the government of its title thereto. In the case at bar we think that reasons did exist when the first survey was made for not platting Boom island, and that they are sufficient to overcome the presumption, which would otherwise arise fiom the survey, that the government intended to relinquish its title to the island. It has already been shown that the survey to which reference was made in the Bottineau patent was neither a complete survey of the river nor a complete survey of township 29 N., of range 24 W., because a considerable portion of the township was on the west bank of the river, in what was then ludían country. Furthermore, it will be observed by reference to “Exhibit E” that four of the sections of the township,
In further support of the view that the facts in the case do not warrant an inference that the government intended to relinquish its title to Boom island when it made the first survey, it may be said that the evidence contained in this record fails to show that Bottineau or any of those claiming under him, except the plaintiff, ever took possession of Boom island as appurtenant to the grant, or asserted a title thereto under the patent of March 25, 1849. They appear to have recognized the government’s right to survey the island as a part of the public domain subsequent to the date of that patent, as well as its right to sell the land to Saunders; for, so far as the evidence shows, they never took any steps, until the present suit was filed, to challenge the survey or patent, or to prevent a sale. The conduct of Bottineau, and those claiming under him, for more than 40 years, ■has been in the nature of an admission that the claim made by the government in 1853, that Boom island was still a part of the public domain, was a lawful claim. In this latter respect the case at bar differs essentially from the case of Railroad Co. v. Butler, supra, on which much reliance was placed on the ai*gument by the plaintiff’s counsel. In that case a survey of land on the river bank which failed, as in this case, to disclose an island contiguous to the shore, was made in 1831; and the land on the bank was entered by those under whom the plaintiffs claimed, in the following year, — 1832. In the year 1837 the opposite bank of the river was also surveyed, and certain islands in the river were disclosed and surveyed; but the one in dispute was not then surveyed or disclosed, and no survey of said island was made until 1855. When the government patented the island in controversy to a third party under the survey made in 1855, and the grantee filed his patent for record, the plaintiffs, opposite 'to whose land the island lay, immediately commenced a suit to cancel and°annul the patent as a cloud upon their title. In that case