*1 1902. TERM, 452 Argument for Plaintiffs in Error. 190U. S.- AND CALUMET CANAL IMPROVEMENT KEAN COMPANY.
ERROR THE SUPREME COURT OF THE STATE TO OF INDIANA. Argued January 9, 12, 1903. May 4, 1903.
No. 8. Decided court, law, as understood The common local'.law Indiana conveyances bordering non-navigable as to effect of waters are same. acquired the State of Indiana land from the States United under the Where Swamp September 28, patent describing Land Act of the whole bordering certain sections onnon-havigable fractional enumerated (cid:127) Illinois, acquired between Indiana all water up the land under water State, line of the law of being the local Indiana. The mak ing of significance necessarily meander line has and does not no certain import surveyed that the it is not tract on other side of will not pass by conveyance plat upland shown border on the Smale, Jordan, 371; lake. 140 Hardin v. 140 S. Mitchell U. U. S. followed. of the court. case is stated opinion The Fennell for error. P. Mr. William plaintiffs Stat., Rev. 2396, U. S. section original Under survey at the water course.” and-in law stop did fact 1834 A officers made proper cannot be shown to in- the Land Department confirmed by. courts. Russell v. Maxwell attack collateral accurate by {(cid:127)>.253. Oo., U. Land Grant issued was fact that
The and was parties at every step by finally contested interested after months’ Secretary decided six consideration the' of the land office affords the decision Interior affirming strong United States v. San honesty. evidence its correctness Tin Jacinto -S'.273. Go., U. a, not in sections. It is whole, Wolf Lake must be taken (cid:127)’
a lake between two States. in fact with Hardin v. Jor- case This is identical law and 140 U. rule of is different in dan, S. In- only property CANAL CO. CALUMET ' Argument in- Plaintiffs Error. XT. from what this court assumed be the law in Illinois. diana to. v. Portsmouth Panic, Indiana, State Bavvngs of its defendant error must on the strength recover *2 as in Hardin v. Jordan. own title, just of the con- a of a section a reference,
By plat part becomes into if it had been as much so as patent veyance, copied v. 108 646 Louisville & Illinois, ; deed. Gonnelly, Piper Railroad, v. 104 455 ; MoGormich Koelle, Illinois, Hashville Go. 11 MoGlvntockv. Illi- x. Huse, Illinois, 363, Rogers, 78 citing nois, to the
If in has not the defendant error paramount.title in it is mere intruder title. without question
But the success of case does not appellant depend a construction of the act of land- upon' swamp September 1850. Whether or not that act aas grant imprcesenti operated to the various States of all the land within their borders swamp is not the that before this unless it finds also court, question because, the title to the if owners, passed appellees riparian no title to the have are water,- mere appellees they Intruders, and ás to them, under the new are .issued the, conclusive the lands were of character which to be.” v. patents they represented Wright 121 Roseberry, v. U. S. Eberhardt 115 488; Hogaboom, U. S. All 67. presump- tions are indulged support proceedings upon is not issued, to collateral attack in patent patent open an action óf or to ejectment title. quiet Eberhardt v. Hogar 115 boom, IT. S. 67; Iowa Rail/road La/nd v. Company 52 Antoine, Iowa, 429. have
Kiparian rights do with' the title to land nothing the water. Diedrich v. The H W. 42 Wis- Ry. Co., 262. consin,
It was the intention of evidently both the National and state governments the border convey edge n pond, rules. of according general if conveyancing there is a between the meander line as discrepancy indicated.on and the actual water map line, the natural monument which was intended to.-bethe parties would be the boundary, and not the artificial meander boundary line. TERM, 1902.
454
Argument
Error.
for Plaintiffs
190 U. S.
could be clearer than that
Indiana
Nothing
Supreme
Court has
in this case
the deeds of
held
the border lands
did not
the bed of the lake to defendant in error. And
convey
the court is
the less
explicit upon
riparian
Indiana v.
11 Fed.
Milk,
State
389 Boorman
rights.
;
Rép.
v.
42 Wisconsin,
GUmcmton,
State v.
9 New
Sunnuchs,
233;
Seaman v.
24
Hampshire, 461;
Bis,
Illinois,
Fletcher
521;
Vermont,
28
257; Mansur v.
Maine, 38;
62
Phelps,
Blake,
Wheelerv.
4 New
on Water
York, 377;
Courses,
Spinola,
Angelí
Wood,
section
Paine
T08
Died-
41.;
Massachusetts,
;160
n
rich v..Forth- Western
Wisconsin,
By. Go.,
The action of the Land
is con-
Department
issuing patent
clusive
all courts and
all
where
the rules
proceedings
of law the'
title must
v. Towsley,
legal
prevail.
Johnson
Wallace,
Warner v. Van
;
Brunt, Wallace,
; Shepley
et al. v.
Cowan et
91 U.-
Moore
al.,
340;
Rdbins,
*3
Frisb'ie,
w.
101
S.
v.
530; Marquez
473;
Bru/nt,
U.
Vance Van
102
Schurz,
401;
101 U.
519
States v.
U. S.
Smelt-
;
S.
646 ;
v.
104 IT. S.
State
ing Oompamy Kemp,
Smelting
v.
;
v.
IT. S. 447
Quinn
Conlon,
421;
106
Company,
v.
S. 465 ;
Baldwin' v.
U.
Cornell
21 Fed.
Stark,
Lammers,
107
593;
v.
128 IT.S.
v.
200;
Gazzam Lessee
Pop:ell,
Rep.
Cragin
Roman Digest, aq. Lib. tit. 14, .Institutes; 43,, Callistratus, Lib.-.2, Ulpian, Digest, 5.56,-558, Civ.; section arts. Code Law:, 1566, 4'; sec. French & du Treatise Proudon Frangais; Traite Domaine Publique 1566; Book 4, on' the Domain of Public' France, Dumay § Law, Code German Frederieaii 558; Barrett’s Napoleon, § 2, Ed. Book ; Bracton, 14,1569, Book art. 35, 7, Code, 1, p. § Lib. 2, '8, 3, Lib. 2, Fleta, 3, 9; fol.- 2, 9;: chap. chap. p. §§ 16; 3, 9, 12; Lib. 2, 8; Grótius, 2, chap. chap..8, chap. p. § §§ Civil Roman Huberus, 104;, Law, 123, 33, Dig. pi § & tit. Heinnecius Nat. Lib. 1, 1, Lib. Gen. 41;, 16; Jus. § Lib. 25;. Heinnecius Elementa Juris. tit. chap. § § S. Winston,with whom Mr. Mr. Frederick F. James E. Silas Strawn Mr. G. Mr. H. Hamilton were Meagher, in error. brief, defendent held The that all of Indiana; I. Court having Supreme in involved in suit was fact this included will not fact.' court disturb that Gard- 1834-35, finding Hart, 165 TJ. 362; 188; ner v. 180 TJ. S. S. Bonestell, Egan S. T. 658; A., 151 U. Hedrick efe8. F. Richards, Bower Co. v. River 673; Bridge B. H., Republican Kansas. TJ. 92R., R. TJ. S.-315. Pae. Indiana, Court only opinion Supreme of Kean v- but also 145 In- 'bar,
case at opinion Roby, 221, has as a matter all the land in held, diana, fact, the Federal Government in 1834-35. surveyed by question been II. All the land included having United States all 183L-35,-the1 having conveyed *4 of in to the State Indiana 1853, under that and defend in under mesne ant error conveyances State, holding of void, the same 1875 description, plain by no as held thereunder, in tiffs error Su rights by- acquired Indiana in Kean v. Calumet Canal ds Court Improve preme of Kean v. 145 699; Indiana, 221; 150 Co., Indiana, Roby, ment State, Indiana, 197, v. as held Tollesthn 141. by following,. Jordan, in 140 U. S. v. court v. Mitchell this Hardin 139 406.- See also Bavis v. S. TViebold, U. U. Smale, S. 507. TERM, 1962. in Error.
Argument for Defendant 190IX. S. more case at much favorable to the in the bar are facts the Hardin and in error than the facts-in Mitch- defendant in those cases to the cases. Here we ell party prevailing of have a Indiana as a mat- Court Supreme that, finding - all the land in whether fact, ter in the bed of the .question, in elsewhere, lakes 1834-35. More actually surveyed defendant-in in our than error' case holds under that, pat- ent from the Federal Government all land question, made and after the act pursuant passage swamp Hardin holds issued 1850, while the Govern-. patent to the In ment act. 1841, prior passage swamp n no interest there is of- of the State-or case, also, any in and land in to the And that United States question. to the land beds of Lake is true with "Wolf. respect just it with On this respect and Lake upland. George is. n point'see v. S.U. .Robbins, 530; Moore Vo. further, Smelting v.. 640; Roseberry, S. -121U. S: Wright 488; 104 U. Kemp, S. 618. ..Doolam, 125 U. Carr, that the cases cited in er-
We therefore say plaintiffs that the decision ror,' upon Secretary proposition res are not Interior is point. adjudicata, owners land inland III. The bordering rights are the law the State lakes wherein non-navigable settled lies. so laid has been down this court This principle frequently extended comment Notwith- that we'believe any superfluous. difference of the Hardi/n and Mitchell standing opinion'in the court has been' always other cases unanimous points, n on this question. in the Hardin the decisions Mitchell' cases this Since reaffirmed doctrine, court has- repeatedly particularly 153 U. ; of Lowndes Grand Huntington, the cases Butler, R.-R. Co.v. U. S. Indiana- Water 87; Rapids Commissioners, v. Water 'Pmcer Co. then the law of the State Indiana
IY. What respecting Wolf Lake lakes, particularly respecting non-navigable ' n % .and Lake George In Ross et al. v. Faust Indiana,. 471, et decided al., *5 v. CANAL CO.
KEAN CALUMET 457 in Error. Argument for Defendant 190TJ.S. on title that proprietors court held riparian of the stream, to the thread State, in said extended River,
"White lines of the survey facts that of the regardless did„not include the banks and surveyors meandered nor to, sold terms, such bed not, that thereof; and bed such river. lands bordering for by, purchasers .paid n Seealso Bidgway v. Edwards 248; 58 Indiana, v. Ludlow, 106" Bank, v. Po?'tsmouth Savings State Indiana, 302; 76 Ogle, 141 Indiana, State, v. Club Chicago Tolleston Indiana,,435 ; v. 389; Stoner Fed. v.-MilJc, ;11 Rep. State Indiana Í97; Indiana, 114; 137 51; Bicheson, 121 Indiana, Bice, Brophy V. Kéa/n v. 93; 146 Indiana, Tolleston Club Chicago plough, 145 221. Indiana, jRoby, State be the settled law It therefore appears covers a sub- an inland lake that, where non-navigable Indiana of land and government designates dry division or subdivision, lot, fractional such subdivision lot takes from the Government subdivision purchaser "bed lake title all contained .portion of. the subdivision. That is to he takes as say,' within riparian the, his title and he land beneath the owner, includes, owns, far the meander line and water’s lake beyond edge enough full in which land is' so make out the subdivision his situated. this case decision in is the Su- latest expression of that and is.in no Court sense dictum. Wade State, preme U. S. 499. See also v. War- County, Travis Leffingwell n v. Gallatin 599; U. Black, .County, ren, Fairfield 47.. law found If the common of Indiana were as
V". law of in Hardin v. to be the common Jordan, Illinois, court, the defendant owner error, riparairi bordering then lakes, owns" the center of the ail and, lands, consequently, land in controversy. the sake of the. us to tho assume, For let argument, contrary north, in 1834-35 made of township 37 fact, did include north, township range range Lake Then we that, Lake and submit Wolf George. common as stated this court Hardin v. law,
rule TERM, . Opinion of the Court. 190IT. Si defendant as the owner of Jordan,, error, the land hordering n (cid:127)on these would take tO'the center lakes,, thereof. Forsythe *6 Biss. 201Fuller Srnale, 7 din)-\. Shedd, 161 Illinois, {filar VI. Counsel in error would plaintiffs impose upon court the burden of the reeord to ascertain examining whether or not the defendant in in error of this suit prosecution is barred the statute of limitations of of the .State by Indiana. 'This was a of fact, which has- been decided question adversely in both error, the nisi and plaintiffs the Su- jrrius Courts of the State of Indiana. preme- If this court would into the record to determine this go ques- conclusion tion, its we affirm submit, must necessarily, A state courts. the cáse tried waived, was before the' jury and of the trial court court, finding judgment- having been the state Court, affirmed Supreme question or not in whether the defendant error with the statute complied limitations State Indiana cannot be here reviewed* not Federal It is Gardnetr v. Bonestell, 180 II. S. question. v. Kansas 362; 310; Bi/oer Go. 92 Bridge By. Go., Pacific Bower v. 151 S. 315; Richards, 658; TI. U. v. Hcurt, Egan 165 v. T. 188; A., N. S-. Hedrick <&S. F: B. B., U. S. 161 Murdoch U. S. 590. ;673 87 City Memphis, Mr. Holmes delivered court. opinion Justice to-, title This is brought by proceeding quiet Calumet in and a court of the Canal State of Improvement Company ' which Indiana. affirmed company got judgment, 699, Court of the and State, Indiana, the ease Supreme in is here writ of error. The land is land brought under certain- water .borderingon extending non-navigable to the state the Illinois of which line, up side subject ' of the decisions Hardin v. 140 S. Jordan, 371, U. Mitch But the Smale, ell U. S. 406. facts this ease are somewhat different. The Calumet claims title company through mesne Indiana. The conveyances State State title Land Indiana got its Swamp Act, September c. 9 Stat. Rev. 520; Stat. 2479 et 1850, 84, seq., patents §§ CANAL CALUMET CO. Opinion S.U. of the Court. bejn of the United dated purporting pursuance of that to the official act, which referring plat survey, was made 1834. The forth set describes the patent whole ” of fractional sections enumerated and on the water, bordering in which sections lies the land. The State afterwards disputed the same is It not denied that conveyed by description-. the land above the
company got shown waterline, plat referred but it to, is denied that it The water got'more. has been so that the receding drying up, question important. The defendant set a later up
was covered water and is to a less covered, extent, still, from the States in pursuance for tracts same, below the water line. original They deny that the State ever owned this if it that it land, or, did, conveyed it, the later to be conclusive. they allege
On the State would general principles have conveyancing the land .in here from acquired controversy by conveyance the United States sur describing upland according because the local law Indiana and vey, the common law as understood this court are the so far as same, this case is con cerned. Stoner v. 121 Rice, Hardin Indiana, 51; v. Jordan, 140 U. S. The 371. case is if the land stronger under passed Land as has been Swamp Act, held the state court with to this similar Legard Mason v. Calumet patents. Canal & Co.,150 Improvement Indiana, 699 v. ; Kean 145 Indi Roby, ana, 221; Tolleston Club v. Clough, 146 Chicago Indiana, 93 ; Tolleston State, Chicago Indiana, 197. See Club of Mitchell v. Smale, 140 U. S. 414. 406,
The of a meander line has no certain making significance. French-Glenn Live Stock Co. v. 185 U. S. 52. Springer, 47, It does that the tract on the necessarily other side import of it is not or will not surveyed pass by conveyance up land shown to border on the lake. It is not plat always Railroad Co.v. boundary. Schurmeir, 7 Wall. Hardin 272; 140 U. S. Jordan, 380 371, Mitchell ; Smale, U. S. 406, 414; Horne v. 159U. S. Smith, 43;Grand & Indiana Rapids Railroad v. Butler, 159U. S. 93. In this caseits immediate -was to indicate the contour of the import only lake. It would TERM, 1902.
Opinion U. Court. de of the land that the settled sure, understanding seem, line the meander like the has been that cases present partment com the cases limit of the But marked the are grant. probably an was acted on rare in which that understanding paratively the land under water convey subsequently attempt the transactions with which of the line at dates before side further to deal. land was not considered weffiave The title to such an trouble of or worth the much early days importance t 7, 11. Wheat. See Newsom v. Pryor, independen survey. than for revenue States was more anxious for settlers It to consider how we should source. is not necessary decide, the with if the a new case our light present' It is not new. For twelve the decisions in Hardin one. years den and Mitchell have stood as authoritative v. Jordan v. Smale law. of limi most cases the statute Probably larations.of cured the have tations has defects of title which those cases may faith Meantime titles must have on the shown. many passed can meet them those decisions. The United States .of to us would be It seems likely form its conveyances. to be than allow them called to do harm more ques good tion now. was not embraced land water
It is said that the *8 th and overflowed by selected as land was swamp e must be otherwise, the selection pre It not State. appearing and if so it was overflowed, the land to have included ..'sumed c. 11 March 3, 1857, confirmed to the State by act encounters The confirmation Rev. Stat. 251; Stat. § Stoneroad, 158 like Stoneroad v. none difficulties of cases of the was sur least, at water, 240. The land U. S. surrounding of the identification submerged portion so that the v eyed, of Indiana a the State got absolute. We are opinion land in title to the whole dispute. CO. CANAL 461
KEAN CALUMET McKeota, dissenting. 190 S. U. one. There is not title, of Indiana gave
If the State got follow We decision on this should much controversy point. fa,r is concerned, so court in this case question the state law. But the'láw of the state evidence no other if there was to be cited above clear the other cases is shown by Indiana > on this point. in does -not affect the’ United States 1874
The resurvey by As already the Calumet rights. company’s no intermeddle it had lands, jurisdiction had conveyed ey. Jordan, in form of second Hardin with them the surv Railroad Co. 140 Indiana 400; U. Grand Rapids & Co. v. Schurmeir, 7 87, 94, 95; Railroad Butler, Wall. 272, 289. hot to revise
Of we shall undertake course, finding run had not of limitations the state courts that the statute n favor, if one is to error, that, any profit plaintiffs would the Calumet it, by company prevail.
Judgment affirmed. concurs Mr. White, Mr. Justice with whom Justice Mc Kenna, dissenting. which this cause involves and importance which, far injurious my opin- reaching consequences from the continued of what must arise seems
ion, application the erroneous theories which it is now de- to be to me constrain me to but me to dissent, cause state cided,'not only reasons which I am controlled. fully between claimants to lands once The controversy opposing beds of certain bodies of waters,, non-navigable part lakes—and shall hereafter referred to styled title under Both asserted designation. parties United States. were made the United States of town-
In surveys 9 and 10 second merid- west, north, ranges principal ships in Lake extreme northwestern ian, County, por- lying of Indiana. tion of the State range Township the west lat- bounded township range on the west From bounded State of Illinois. ter was *9 TERM, im McKenna, dissenting. Justioes Whit* in- eastern boundary 3T there was less township range a mile than to the Illinois on the intervening west. boundary sections In fractional sections on «©asetjuenee, appearing of that .plat the. the extreme township .only tier -.of those easterly sections, numbered being 1, 12, 18, 24, and 36. A of a copy portion sur- government plat of ithe vey named, in are embraced towvndhips the lands whose title is .in is inserted for .convenience of dispute, reference opposite page. oh of the two bodies -easterly in water, both lying partly known,
townships, Lake or Mud Lake. The wes George is called Wolf terly body As shown Lake. the lines plat, were not run across water of the actually lakes, and, no was made to subdivide the consequently, lands attempt tihe;tihein in beds of the lakes into subdivisions. The lines legal in fact run around rim wore of each lake, and of-survey from the meander fractional lots line were num resulting given .as was bers, cases. customary The land about the lakes was and the margin flat, very of water at the túne of the was average depth surveys conjec- tured to be about five or six feet.
None .of the fractional-lots the two lakes abutting had been the United disposed (cid:127)townships act of swamp 28, 1850. passage September prior Indiana State.of transmitted a list of Thereafter,.the lands which ®tdesired should the State under said act, patented embraced which Wolf list .portions townships were situated. Lake and Lake This list, however, re 'George to entire took no note of the sections, only plat suryey ferred .made no reference the fractional lots on the abutting or the<other subdivisions-of In the sections. list lakes approved of selections made of the Interior the Secretary general .of the state lists was followed, given description the meander line shown on the of sur where except plat section was made fractional, the section vey appeared section, a fractional of land termed shown quantity (cid:127) on the to be each subdivision or minor frac- jftat contained rtional stated. seetkm specifically
KEAN CANAL CALUMET CO. n McKenna, dissenting. Justices White TT.
n 464' TERM, 1902. McKenna, dissenting. 190 TJ. 8.
A dated to. March 24, 1853, issued State patent mode in selections. The Indiana for approved the- lands were described in the illustrated patent following excerpt: the whole of fractional sections thirteen Also, one, twelve, half of the north southeast twenty-four, quarter, southeast the southeast northeast quarter quarter - of section the whole of fractional sec- quarter twenty-five tion all one thousand seven hundred and thirty-six ninety-one of'an acre. ..” . sixty-hundreths .acres of the lands After the description following: to the official said lands plats “According to the General Office the' returned Land surveyor general.” in this title manner border Soon after lots, acquiring *11 the them, the Indiana numbers, State of by plat conveyed pri- individuals. vate < dogs the causes which record not show led to the the
While within the of"the two lakes meander lines of the .beds up drying it is nevertheless 1834, of of certain that on thé surveys plats of had in lakes the waters -about the 'these part year greát various In the settled persons years disappeared. of to, with the intent the lands referred on uncovered acquiring was law. made to the the homestead Application .title under In a thereof. virtue of this for survey Interior Department' 1875—known the Walcott. a was made survey application, n the subdivisions thereof. a drawn exhibiting survey plat'was —and was resisted in the of Land De- this survey confirmation to border from one who had lots title acquired partment by that the United had the States the of Indiana, State ground of the as the lakes, beds effect of the the no land survey had the State been'to the United pass .conveyance ' This the before the Land beds of lakes. controversy title to the of on the' 23,1877, February finally disposed Department of of the the Walcott in favor validity of the Interior, Secretary the the lands beds the survey. Thereafter patents issued the United were States. the lakes covered survey Canal In- Calumet Improvement Company to' an action in the Lake Court of Circuit Indiana, brought CALUMET CANAL CO. McKenna, dissenting. Justices White and 190 IT. S. its asserted title to certain of these border lots and its
quiet title owner to land in front once riparian thereof, alleged beds second trial of lakes, and, upon part obtained action, Court judgment. On. appeal, Supreme .of. affirmed the the cause then Indiana judgment, brought on a to this court writ claimants under prosecuted by of.error based the Wolcott contention that the deci survey, upon Court of Indiana was title and sion Supreme against con-, set under deed of statutes, right specially up patents,, In veyance authority America.”'. of the Wolcott survey deciding against validity to land in the beds of the based on such lakes of Indiana said Court 699): Supreme (p. that, “In certain under the persons, assumption lakes had not been in 1834, beds surveyed procured that covered part formerly resürvey and is this last and the sales made in waters; through survey, that claim title. The thereof, case before appellant's pursuance therefore, so far as us, concerns source does title, not differ that of Kean v. Roby, Indiana, On authority in that can no case, decision there resur question, as also sales made thereunder, vey wholly invalid, and, as based consequently, title, appellee’s 1834, and sales made that sur original No real distinction in this has béen shown. vey, good. regard the two cases.” between therefore, refer to necessary,
It becomes the case of Kean v. *12 which the Court of Indiana its. rested Roby, upon Supreme the As, moreover, of the doctrines comprehension conclusion. in that case necessitates a consideration the course involved decisions to Indiana relative the subject involved, of previous the Indiana cases Kean v. shall preceding Roby, I review as to be, far an exact elucidation of the as order, may legal which the of this case was decision below com principles trolled. 54 involved the- Indiana, title to Faust,
Ross (1876) of a river. The land abut the' bed non-navigable land had and the stream stream been had the surveyed on been. ting Ton. oxo—30 TERM,
466 McKenna, dissenting. 190 TJ. S. Tbe meandered. ivas whether of the United land under water within thé meander lines. conveyed the the construction of’ reference patent solely Determining of the United the the laws court decided States, as that, in fact stream was holder of the non-navigable, patent the border lots had title to the center of the stream despite meander line. Ludlow, involved a'con
Ridgway (1877) Indiana, 248, of land once troversy respecting ownership forming part land, lake. The the bed on the anon-navigable bordering lake had been States and evidently acquired had been meandered. The rule in the lake Ross v. Faust was the court saying: applied, no difference in in this
“We can see whether rule, principle lakes, rivers when non-navigable non-navigable applied are within the Congressional surveys.” they Indiana, 302, Edwards v. the foEow- Ogle,(1881) presented a of facts: On a section of state plat survey'of land, ing covered waters of a which great part pond, shown as meandered, of the but the lines banks pond half sections and sections were sections, extended quarter A dotted lines. fractional portion across pond acres—the southwest represented containing quarter, dry the meander —was outside of United States patented by under the 1845. In the United land act, swamp a of Indiana for east half State patent executed within the meander line. In 1858 the southwest being quarter, a to one issued the Avest United States half patent Ogle Edwards, section. as oAAmerof the the same thirty- quarter to the center asserted tract, acre right nine pond, have absorbed the land claimed Ed Avould if alloAved by Ogle. the actual of land Avasconfined to wards quantity specified v. Faust the court Ross re distinguished, patent. had river not been sur that case: bed marking domain, but, theory part veyed stream, White Diver was navigable government surveys thereof.” been at terminated had margin Bank, v. Portsmouth Savings Indiana, State (1886) *13 v. CALUMET CANAL CO. McKenna, 190 U.'S. whether fractional lots conveyances involved
459, Beaver Newton Lake, Indiana, Comity, passed bordering bed of the-lake. The under the controversy land title bed of the lake certain State claiming pri between from the title State, who deraigned claiming vate individuals to them derived transferred had rights that as State their were coterminous States, from the rights patents to. across meander line the cen extended with the patent Lake, ivas water Beaver body ter of the lake. covering acres land, thousand about seventeen averaging and from two to four miles in miles in five to seven length had in 1885 width. The border lands been au surveyed the United private thority subject entry. In the same was extended around the lake making and a line established. As a result meandering necessary meander line fractional lots-were shown on the around the plat of the lake. Under the land act the margin border swamp lands, subdivisions, were government selected of the Interior and Secretary State patented of Indiana. Court Indiana declared that it Supreme was not nec “ to determine whether the essary United States to the State for the fractional lots and sur bordering upon the lake, from one rounding being grants gpvernment an ” other, their own force carried the bed of the lake. Be- decisions previous court, viewing construing swamp the Indiana act, court held that that act was a grant- further held It'was that, prmenti. the bed of although Beaver Lake was not embraced in the list of selections made the acts State, of its yet by officials, after' the" immediately to it border grant lands, State had treated the bed' of the lake as and overflowed swamp land, and constructively January selected and that same, an act of Congress, approved 17 Stat. releasing the bed quitclaiming Beaver Lake to the State of did Indiana, operate but aas confirmation grant, simply of the prior selection, the title as thereby perfecting indefeasible. - came The court next to consider the claims of the grantees State border lots, described in the from the patent TERM, 1902. 468' *14 190; and dissenting. McKen-íta, U. S. White Justices of to-the which had been made State survey according plat by It that United was declared state the bor- patents States.. -with be construed to the der lots must reference con- power and-not the law, ferred state state by rule, .officials the úpon by would a a conveyance by private govern individual; it held the was for border rule,, lots applying patents “no carried to the more of the and over- grantees swamp flowed; than were included the lands several sub- surveyed divisions bounded the lake? by v. Rice, was a
Stoner be (1889) 121 Indiana, controversy of border lots a tween owners as lake meandered non-navigable under of the United States and- of claiming patentees - the United a of the States under bed subsequent survey its Ludlow, lake. Despite ruling Ridgway supra, previous it was now held that the a owner frac rule giving riparian tional lots on line title to the'thread or cen a meander abutting ter'of the The case was-decided stream, was applicable.- up* to be United assumed the States what the*law court domain, the court said (p. governing surveys 54): true doctrine to such land The disposition apply, lakes, think, of-such we is that is-covered as body included all the surveys surveys making government and if there a lake or district was Within the surveyed-, land it of a was mean- subdivision, which covered part pond' large dered, in such subdivison land as a and the designated out, dry in the. such frac- lot; or subdivision, purchase fractional took title to-it as a or subdivision, lot, purchaser ripa- tional land as the waterreceded within rian-owner, with right subdivision conveyed purchaser. lines boundary other, title to all- land words, purchaser acquired In it as a was described fractional- subdivision, though within divided alb the The authorized or lot.' subdivision, reason of water if,- -into subdivisions, the district within it was at the land, a tract portion- regarded unsalable; there was meander line run worthless time land, such subdivision amount of was dry to ascertain subdivision, lot, fractional or. thus although- designated title-to the- whole-subdivision.” the sale passed described -v. CALUMET CO. CANAL McKenna, White Justices TJ. S. court the doctrine thus declared that announced,by was not in conflict-with its Edwards v. ruling previous Ogle. v. Richeson, was a contest Indiana, 114, (1894) Brophy between the of a fractional tract of land termed .patentees dry of a section, southeast fractional certain north lying quarter under east of a a later lake, meandered patentees made the bed of It' lake. Stoner v. Rice — that the claimant following held— the first within took title to all the land sec patent quarter tion, whether lake. covered the waters dry action State,
Tolleston Club an Indiana, 197, (1894) the State Indiana for within brought recovery *15 meander lines of a claim was the United States The survey. State that the had title to the lands within the mean acquired selections made under der the land of act certain upon swamp for which land, United States had issued ter patents .been of in the State Indiana 1853. the State had Although conveyed lots the border which she had from the States, United acquired th¿ of the claim of the State was this con theory that, despite she remained the owner of and was entitled recover veyance, within the land the in meander, because it was deemed, accord with the ance the Portsmouth Bank ruling case, (involving Beaver that the Lake,) State, lots, border transferring their on the designation of hád government plat survey, to herself and retained her title to the under' conveyed The water. defendants asserted title derived from the United . under States issued 1870, based subsequent upon .a. made of the bed of the water reason an act of survey which is in the Congress, excerpted margin.1 approved July Act 16 Stat. 187. Chap. act in CXCIX. —An certain relation to unsold lands the counties Lake, of Porter and in the State Indiana. lying River, there along the Little Whereas Calumet counties Indiana, body supposed Lake, Porter and State of to con- acres, surveyed, tain four which has been about thousand never sold impassable original government surveys was described in the as ; Draining Company organized morass whereas Calumet has been State, purpose valley said for the draining under the laws of of said Therefore, including morass river said : TERM, ' McKenna,
Justices White sufficesto remark that it It was held that, United although showed a line and fractional lots or survey meander sections that this meander under thereon, the laws of line, ‘ ivas not a because, undei said boundary,' laws, its sole not to limit was, but purpose survey any way, to indicate how much land there was in simply the subdi- dry vision it was determined that purchased. Consequently, both should be treated land, dry wet, been having, the lines because wholly surveyed, survey might pro- tracted the meander so as to make complete surveyed across both the and the wetland. The enum- sections, dry embracing eration land contained 'in the plat quantity was considered sections immaterial, subdivisions v. Rice was doctrine of Stoner applied. claims patentees subsequent Whilst.the within the meander of the land was there- United States survey fore the act Congress-directing rejected, held as the State that, must re- void, yet to be decided own she was not' title,- her entitled the strength cover upon lines, the meander because the land within for any judgment lots title of the fractional passed the State made by grants meander lines, theory subdivision beyond legal effectof the decision controlling noticed above of was filed on behalf rehearing A v. Rice. petition in Stoner is reported rehearing An denying opinion of the State. on behalf of contention Indiana, 214. *16 principal in 141 erred holding the court .that State was that of either by government been surveyed had controversy at the time Indiana, of State the. of. or States, by United Representatives by the United and House Senate Be it enacted of assembled, said unsold lands shall be Congress That America States of proper pro- Indiana the State of for. its laws of subject a lien under may against lien enforced drainage, ahd such be of such portion the cost as if the said lands to the same extent and manner in the same lands said That claim shall be held to persons.: no (Provided, by private owned were drainage. fbr such against, exist may surveyed enacted, said lands be and That 2. And be it Sec. further Secretary of the In- bidder, the directions highest sold subject lien. terior, to said - CANAL CO. CALUMET 471' McKenNA, lots sale of such border tbe court,' however, State.” The that this contention observing dangerous ground to stand State considered at upon, length provisions sections Eevised Statutes of the United ’ concluded as follows:
“The land-in was therefore into sect controversy surveyed law, United States ions, provided government in 1834. But even if we were mistaken in this, surveyors, as we have be a would, said, contention for dangerous appellee undertake show that such was not made. land act of under which the title, State claims re swamp the, be that the lands should selections selected, quires ap lands. proved Interior, The. Secretary swamp land in consists of sections surveyed land, dispute parts certified from the selected, General Land Office approved of the United States. The land so selected is described as in ‘ ‘ No. all west,’ . . . township range being [sec 12,15, 19 and 20. All of 21 and 17, 18, N. W. tions] [and] 23.’ But if were fact no there then no such sections survey, in. at would least between the exist, meanders of Calumet Elver and so no would selections ever have been made State the Interior. The con approved by Secretary would that the State had never ancl title, received sequence remained unsurveyed having possession gen eral were and sold under the act correctly surveyed, government, - If, we should admit this main therefore, Congress of counselfor contention would inevi appellee, consequence that the State had follow never to the land title tably acquired "We are satisfied, however, the conclusions dispute. reached the lands were original opinion- surveyed —that selected, selections 1834; they approved; under the land act of that the 1850; State, swamp therefore, title under that and that the act of act; acquired good and sales with the resurvey thereunder, all nullity—are we are unable to understand correct; quite counsel why a contention if which, should here insist would to, agreed cut the under their own feet.” entirely ground The Portsmouth Bank case was Savings distinguished by *17 19Ó2;. . TERM,
iP McKenna, dissenting. -S. TJ. White Justices óf water, Beaver Lake a body large the statement the United which had not been (cid:127)of shallow surveyéd depth, States government.” v. Stoner which,
The following doctrine precise import is in reviewed so the case aptly por- the court just Rice, applied Indiana, case of Tolleston Club Clough, ti'ayed The order. out of its here noticed it is chronological to land derived his action commenced title .plaintiff to.quiet issued, to the State by from the State through patents The lands in con land act. swamp United States case of involved which were of those troversy part of the lands situation exact State, Tolleston Club supra. from the is shown on the reproduced is following plat of Indiana: Court Supreme opinion of the situation and clear character conception To convey here land, excerpted' opinion passage ub. : v. State, sup. Club Tolleston within the State are claimed meander
“The on each side of the Little States survey the United lines of six a tract about miles in Biver, length Calumet being mile to about a mile of a and a three quarter from about quarters notes of the field width. In original region it is marked ‘Im- while ‘lake,’ on'the-plat to as is referred of the United At time survey, Marsh.’ passable with water, covered which, territory completely .was was a cat there heavy growth tails, river outside proper, other products.” rice and swamplike wild KEAN CALUMET«CANALCO. *18 - McEensa, dissenting. Justices White
-180 8.U. ¡from of the -United title the The «deriving plaintiff, of line, the «tbemeander fractional-lots outside States covering n cláimédto-be of marsh inside-of mean- ..the land the the owner a' marked on the of stream plat der the thread the toup ' ' j river. in v. Tolleston Club State, court followed its ruling The : d sai n parts lots lot one that .the described, being "It plain 19, and three lots one, two, of two and section three, lots north to extend the -north section 20,.all -and four, section n ¡lines their sections.” of respective the meander made lots the were ruling abutting By the marsh between them that embrace land line, lying cross to and would have extended across the so river, river, and the river in entire those the sections, to include except practically the crossed of river the section line. the. where sinuosity court found the of the lots abut the As, however, owner the claimed bed of river, meander had to the on the only ting to that it limited his consequence pleadings rights the the entire thus section extent, acquisition preventing line the bed the river . section was beyond where.the to case of 145 Indiana, I come the Kean v. Roby, now (1896) of which case the Court authority Supreme upon at affirmed the the trial court the case Indiana judgment «the an action owner Roby bar. Kean brought by to her title to land once on Wolf Lake, -quiet abutting of the lake. The title bed plaintiff part claimed . land -virtue of the to the lake lots as well as- bed border United States-to made in 1834 and .the survey patent under land act. State, made swamp based Walcott claimed title defendants patents, of the bed of the lake. once of-lands part the lake was -on the fact that plat Despite to corners which' there were no sectional meandered and court held that -the case could lines protracted, because it was deemed Club decision, the Tolleston covered -that, it would be field notes showed possible pro sections, make regular lines so.as to tract the complete TERM, McKenna, S.U. and it was therefore held that the owner of border lots was entitled to under water as well. adjacent
It therefore results that the doctrine embodied in the case Kean v. cases with Roby, previous Stoner commencing was the rule Rice, decision of case un now applied der beds of review, the lakes given owner the border lots .
All the cases which' have been I divide submit, recapitulated, into themselves two those Stoner v. classes, first, prior second, case of Stoner Rice, those subse- Rice; n therein made. it, "Without including quent ruling paus- *19 to ascertain whether the cases the first class are reconcil- ing second, able each with or the can be other, those class made to harmonize with those in it is first, the seems me thing one that that all the cases in both the is, classes, includ- apparent: held— n the in the at bar, decision case ing indubitably 1. the .the That United States owned the soil government under all bodies of water within the lying non-navigable public domain of the United and that the title States, thereto remained until it had with it United States to the parted pursuant laws of the United States; That whether the United had States determining parted
with to such court title Indiana decided that' always not effect rule of question, controlling any upon supposed state or it to be local but what deemed con- law, by proper struction of the States United governing laws domain. disposition of the defendants under of the United. right patents been States, set because having denied, they up, specially it no was the court title conceived below vested in them by under the laws of the United it would States, seem that for decision this: Did the is court in- question arising correctly the statutes of the United States ? terpret This But it is is Federal that what title question. pressed to the beds of the lakes to the State from the United passed n either land act or in States, virtue of the swamp pat- ents issued the' to be not State, determined, is law by United but state local States, law; hence it by solely v: i16 CALUMET CANAL CO. 190 U. McKenna, tPosxiOES White
is insisted case must be decided the law which by right- to it and not the law of the' United States, fully applicable by which the Court of Indiana deemed was Supreme erroneously to its If I that the essential decision. entertained the opinion or local case state law and in that this governed, consequence to be considerations would, I local, disposed by inherently be to conclude that must course, obliged controversy the. law which controlled it and judged properly law of the which was mistakenly applied con- lower court. In that view mind would be driven to the my clusion that this case should be dismissed want jurisdic- since here no the action of the tion, there is review authority state court in a cause the state or inherently depending upon Nor local law. would this result be because the de- changed fendants asserted to the beds of the lakes under rights patents to those United States issued relied subsequent upon by- as its ultimate source title. This since follows, plaintiff, claim of the that title had to it and out plaintiff passed of the United is- act or the swamp patents which the if sued those defendants relied. Now, prior whether the land claimed both had parties to the or its plaintiff to the issue of the grantors, passed prior is to be defendants, determined the state solely by or local law, would follow that a decision of the state court favor of involved right conclusion plaintiff only *20 of state or local law broad to sustain the enough judgment, of the Federal asserted wholly irrespective the de- rights by and also fendants, without reference to the entirely soundness of the which the court had reached its all-sufficient reasoning by and non-Federal conclusion. Before therefore to "con- coming the sider correctness of the of the' state court ruling concerning the United States law which court deemed to be decisive, it becomes for me to ascertain whether, as necessary asserted, the as to the extent of the title derived from the United question the or is to States its be determined the by plaintiff grantors by or local state law.
The issue which first arises then what is, law is the by quan- of land which to the State the tity statutes of the passed under TERM, 1902. ,S. McKenna, White U.
Justices . its United the law of States patents determined, by United which conferred on State the States whatever the rights or the state or local which had no solely law, acquired influence from the United States to agency rights passing the State? In at it'is once conceded that solving question there are two cases—decided this court oil the one' same day, the other, therefore but resting one case— upon virtually the doctrine where the United has con- announcing land on meander line of a veyed bordering non-navigable of water the of what body the land under rights water from the United States its passed tois be de- grantee termined or local state law. solely by
The cases referred to are Hardin v. Jordan and Mitchell v. Smale, in 140 U. reported S. 371 and 406. Both respectively were cases actions of and the ejectment, judgments reviewed' Court of rendered Circuit the United States for Northern District of Illinois.' The in each casewas the plaintiff owner, mesne convéyances, patents States, based made in 1834 of fractional upon surveys lots abutting Wolf Lake situated in State Illinois, portion owners such title land claimed as once abutting they forming . lake The defendants of the bed asserted title to the part made in bed the United' lands upon lake them issued to founded upon survey. held that the title of the trial owners of The court the border had water, to low mark and found in lots extended favor of only The under water. defendants as to ground upon trial decision of the court court in both cases reversing based was is shown excerpts following opinion 381 and Jordan, 379, 380, Hardin 384: pages in 1834-35 made which the government surveys laid down a meander issued, line next to the only patent but said lines as also described lake, running along margin ’ lake; returned to plat survey, general and local and referred to in land-offices, for identifi patent cation of the land exhibited the tracts as ac granted, granted itself, tually and the lake lake; on said bordering upon'the plat marked with words lake,’ Navigable fact although *21 CANALCO. KEAN CALUMET McKenna, . Justices White 190U. S. not and is not a lake was tbe the court is navigable
found fresh, or The water lake but a poncL patent lake, non-navigable of but all the. survey, not contain itself does particulars to recited to be the official lands according plat, grant ¿and to the General returned Office of said lands, of the survey aas of thereby adopting plat the surveyor part general, (cid:127) (cid:127) the instrument. (cid:127) * * * * H= * * * . “ water, the lands front It' never been held that has are to of such reserved they1 grants, to the out to other can be afterwards persons, injury granted make to is cal- The grants attempt original grantees. from the and to value render titles uncertain, derogate culated to bodies waters. of natural like streams boundaries, . vv (cid:127) H< H< H* H* Hi Hi “ the title United States the form of Such granted being to the is as effect of that ancestor, question plaintiff’s of the lake in to and the bed front of in reference lake title .the This must described lands grant. actually rule and no of law can be re- law, rule of be decided some law of for the local to State sorted purpose except ’(cid:127) Illinois. ** *** He** from its been practice origin, It has government lands, measure the be paid price in disposing no' them quantity upland granted, charge being for under the-bed of the or other stream, for the lands body made run meander lines or near the along margin of water. run for the the. exact are ascértaining such waters purpose be and not for the for, pur- upland charged quantity lines. the title to such meander grantee of limiting pose * * * * * * * * think it discuss this further. do not point “We necessary of the' our In judgment grants government and other without reservation waters,, on streams any bounded are to construed as to their terms, or restriction effect in which to the law of the State the lands lie.” according of Illinois with to such was the law What regard grants *22 TERM, McKenna, dissenting. and 190U. S. and it was determined that the law of considered, next Illi- in is common nois this and law, else,” and regard nothing that title the owners of border lots on a non-navigable to of water extended the middle body of the water. in
If the doctrine announced the cases referred to is to be here as I have then, there is said, an end to this case applied, ivrit should-be dismissed for want of since jurisdiction, in that view there is no substantial Federal contention I for the as have record, reason, that the previously remarked, state decision would be broad sustain enough without reference to Federal judgment asserted rights the defendants. The doctrine, of Hardin v. however, Jor- dan, as it me is to understand it, is not unsound in given only reason but with cases decided in incompatible this court many to and since its announcement, and is in prior besides conflict with the legislation Congress practice govern- ment from the with the correctness Impressed beginning. these views, conviction that the entertaining enforce- ment of the doctrine will lead to the gravest consequences it future, is to consider its correctness anas proposed original that its before in the case at bar is question, agreeing application If result of be the my conclusion proper. investigation the state or local law should not be applied, contrary ruling in Hardin v. I shall then Jordan, what are ascertain proceed when measured the law of the rights parties, If, United States.' that the court investigation develops below the law of the United States, erroneously interpreted denied the therefore title of the wrongfully plaintiffs me error, will be left for to consider -whether it is my duty, under the decisis, stare assent to give principle my which, under the views stated, below com- legal wrong mitted. is
It demonstrate the unnecessary elaborately elementary that the United under the Articles of proposition Con- federation, was the owner domain, however ac- public since that, quired, adoption Constitution, the United States had also full possessed, proprietorship, from whatever source title domain, its has been derived. CANAL CO. CALUMET McKenna, Justices White summarized on the Was The doctrine Chancellor subject vol. language: Com. Kent, following p. v. McIntosh, doctrine the court Johnson
“Upon Cranch, and Fletcher v. Peck, (1810) Wheat. (1823) own ‘the soil as well the United 142, 143, jurisdic tracts lands included within of the immense tion unpatented of all the funds those territories, their productive title create. The United States hereafter lands may t with Great Britain, peace subsequen treaty *23 and the in and cessions from France Spain, by cessions from ”. dividual States v. Marshall, Irvine The matter epitomized aptly where was 20 How. said 558, (p. 561): (1858) that all the denied, Territories, It cannot be ac- before authority they not by competent appropriated in the first instance the exclusive property are quired, at to such such times, to be of States, United disposed persons, titles, as modes, may in such by government in other or fisc, respects deem most public advantageous most politic.” that land covered water within
It is also elementary of States is much a domain the United thereof part public land. in Illinois R. R. Co. v. Thus, Central City dry of Mr. Justice Chicago, (1900) speaking through it was said: Brown,
“We do not the word general principle land ‘lands’ includes or which carries everything whether it be natural it, artificial structures timber, stands upon that an or land metes water, ordinary grant all carries rivers and bounds pools ponds, non-navigable which such or lands, waters every description portion any them, as was said the court in since, bemay submerged, Ad. & Co., v. Leeds & 685:‘Lands Regina Liverpool El. ” with water.’ not less land for covered are being States, But whilst the the United under the Con- ownership both of the Constitution, and under the dry federation with water cannot be con- domain, public that covered it was owner- .from the conceded that the troverted, beginning - TERM, McKenna, and' Justices- White 190TJ.S. domain did not with it ship carry waters public navigable or the land the beds as such constituting thereof, waters were b¿ considered within the class of waters to public forever de voted to the úse. This was public recognized by provision of the ordinance of for the of the Northwest government as follows: Territory,
“The waters into navigable and Saint leading Mississippi Lawrence, and the between the shall same, be carrying places common and forever -free, as well to the highways, inhabitants as to the citizens of Territory the United States, the-said. and those other be any into the may admitted without tax, Confederacy, any therefor.” impost, duty And, early history Congress, prior adoption in-1805 of a for the general system whole public domain of the same .the principle expressed in the act of 1796, Stat. 464, the ninth May section of which act was as follows: “ Sec. 9. And be it enacted,That all navigable rivers, further within the act, territory virtue disposed shall be deemed to be, remain And that in highways. cases, where the all banks of opposite stream, any naviga- shall different ble, belong- stream and persons, the bed become thereof-shall common to both.” *24 And because waters were navigable thus from the beginning as and-have ever since public highways been then recognized devoted to treated as use, sacredly public were they always excluded the sales of the principie domain. public But rule has from the the contrary beginning'prevailed respected which .waters, have been non-nayigable always surveyed I for.' take sold occasion shall paid hereafter review- this, to demonstrate legislation Congress ing fact, and out to that the therefore statement to point in the contrary from the in Hardin v. opinion Jordan, I passage have must have been the result of already quoted, confounding not to sell waters with the general practice- public universal to and sell or practice non-navigable- private waters. No better illustration of the truth this statement is required is than shown the- case; where United States sold and y. CO. CANAL CALUMET .481 McKenna, dissenting. 190 U. S. waters to the defend- the beds of non-navigable
surveyed of the border after the lots; grant ants below long evidenced other of the Indiana is condition same things is to be observed reviewed,'and have been cases which cov- to land direction sell the ia of the cases the two grant was made acts of Con- waters by special ered by non-navigable had been lots after the border disposed of.. long gress Doubtless as the result of navigable -provisions treating the na a consideration of and from waters public highways Constitution ture and extent of the vested by powers to the those reserved government Federal waters, consideration of the doctrine of public private ' and has been known the common it was decided law, early waters and the reiterated repeatedly navigable - under them well old the new as the States—as belonged —in held in virtue of to be trust for their their sovereignty, commerce.. to.the people subject .power Congress regulate And in with the been de it has stated, harmony principle just cided that them waters and the land under navigable s in the domain State the Ter within public United while ritories, subject be-disposed by Congress, trust for use, yet held'by be transmitted to. the- new States to be and which formed, when endowed with them with the should, possess statehood; -. as the same States. listA. rights powers original. marg cases in which this doctrine .stated is appended in.1 1 Waddell, Martin v. ; (1845) 410 Pollard (1842) Hagan, 16 3 v. Pet. 212; 471; Kibbe, Beebe, (1851) Goodtitle v. (1850)
How. 9 How. v. 13 Doe 587; Pacheco, ; (1864) How. 25 United States v. v. Ward 2 Wall. Mumford well, (1867) Maryland, Smith v. ; (1855) 71, 74; Weber 6 Wall. 423 18 How. Barney Commissioners, (1873) Keokuk, (1876) 94 ; v. Harbor v. Wall. 57 18 McCready ; Virginia, Myers, (1877 ) ; St. Louis v. S. 324 S. 391 U. v. U. Massachusetts, ; 240; Manchester (1885) (1891) 566 U. S. U. S. Rutz, Bird, (1891) 661; 226; Packer St. S. U. (1891) Louis 671; Knight Roy, (1891) San Asso Francisco v. Le v. Land S. 138 U. ciation, (1891) ; 183 Kaukauna Water Power v. Green Co. U. *25 Bay Co., & M. Canal S. 255 Illinois Central v. Il ; R. R. Co. (1891) U. Shively linois, (1892) ; S. Bowlby, 1; U. 387 Grand 152 U. S. (1894)
VOL. oxc—31 TERM, 1902. McKenna, 190 U. S. in the stated opinion of the cases clearly doctrine court, for the Illinois Field, Mr. Justice speaking delivered by where it 387, 435, U. Illinois, R. Co.v. R. Central said: “ this that the the settled law of of. country It is ownership over lands covered tide and dominion waters, sovereignty by limits of the several to the States, within the belong respective within which are with the found, consequent' they right that can thereof, to use or when be done dispose any portion the interest without substantial impairment waters, Con always subject paramount right be control their far as so for navigation may necessary gress with nations and commerce regulation foreign among doctrine has been often the States. This announced this and is counsel court, any questioned parties. 212; Lesseev. 3 How. Weber Pollar d's Harbor Hagan, Com 18 Wall. missioners, The same doctrine is held country applicable to lands covered fresh water in the Great Lakes over which an extended is conducted commerce with different States and nations. These lakes all the foreign possess character- general istics of seas, freshness of their open except waters, in the absence of the ebb and flow the tide. In other respects are inland and there is no seas, reason or they principle assertion dominion and over and sovereignty ownership by of lands State covered tide waters that is not equally to its óf and dominion and applicable ownership sovereignty over covered the fresh waters of these lakes.”
And
aas
necessary consequence
ownership by
trust,
waters
navigable
land under
them within their
territorial jurisdiction,
came
be decided
in and
incident to
rights
waters or
navigable
the land
under them were to be determined
with
solely
reference to the
law of the State in which such
waters were situated.
navigable
Barney Keokuk,
94 U. S.
Louis v.
324; St.
(1876)
Myers,
Rapids
R.
Butler, (1897)
87;
& I.
R. Co. v.
Anthony
U. S.
St.
Falls
Comrs.,
Water Power Co. v. St. Paul Water
(1897)
and Mo
Transportation
(1903)
bile
Mobile,
Co. v.
The the United States of the domain ownership by public thus there can no be room for the conten- being unquestionable, tion that character quantity property public domain which from the United States is passes by grant be-, be measured the law of the exclusively States, cause of want of in the United States over the power subject matter sale of the domain. Such a would contention public of. without in view obviously merit, of the express delegation authority of the United con- concerning property tained in the third section of the fourth article of the Constitu- tion, whereby vested with Congress “to power dispose and make all needful rules and ter- regulations respecting or other ritory to the United States.” property belonging comprehensive with the system legislation, beginning birth of the very for the government, providing domain, sale the administrative public devised machinery these laws and the multitude of decisions executing court which arisen have thereunder, concerning questions have ever deemed been to be determined from proper solely consideration of the laws of.the United mind States, my serve demonstrate the unsoundhess proposition TERM, 1902. U. S. McKenna, na- States measures the other than that the-United law
any domain au- title to the ture and extent of conveyed by public of the United States. of the laws thority Besides resulting implication general legisla sale tion concerning disposition pub Congress statutes in and domain, lic rights regulat special granting waters use of the ing non-navigable the. Act Act 26, 1866,
are conclusive. Stat. 253; very July *27 1891, of March Act of March 26 Stat. Stat. 3, 1877, 19 377; 3, . in this connec 1902, Act of June 32 Stat. 388 1095; 17, See, Land & tion, Co., Gutierres v. Irrigation Albuquerque v. Dam and 545, Co., States Rio Grande Irrigation United S. 704, U. et 690, seq. cases, in efficient I which the and' refer to a few complete effect of its the United controlling power stated. laws considered lucidly have been held Broderick, In Pet. was (1839) Bagnell to a was not declare a certifi that state legislature competent with a and it was cate purchase equal dignity patent; observed 450); (p. sole to has power declare
“Congress dignity from the United States.” effect titles emanating an 13 Pet. was action in Jackson, Wilcoxv. (1839) eject- . ment, to in a-state court of recover Illinois, property brought been had at time one part military post. plain certificate, tiff which the based claim laws his upon register’s be of title declared to evidence sufficient to of Illinois support In an action in reversing ejectment. judgment course court, opinion, speaking plaintiff, through ) : said Barbour, Mr. Justice (p. 516 that State of Illinois It been to said, has has right title states, that a derived law, declare United inchoate and their is' shall be which, laws, imperfect, only deemed a title if a had' as issued from the perfect patent of her courts construction own seems States; to to effect her statute. ... We hold the true give prin- that this, whenever states court, ciple question any whether- a title to land which had once Federal, is, been the CANAL CO. CALUMET McKenna, (White Justices U. must has of the passed, United States property the. United but that when- States.; be resolved laws the title shall have then laws; those ever, passed, according all the State, like other subject property property, as that is consistent to the so far state legislation legislation, that thé title vested according with the admission passed to the laws of the United States.” 20 How. was an action v. Marshall, orig-
Irvine (1858) It of Minnesota. in a court of Territory brought inally Marshall, that the' defendant agent alleged lands with funds belong- had certain plaintiff, purchased, that Marshall thereafter co-defendant; and a ing plaintiff con- name and refused to in his own took a certificate patent The bill of half of the land an undivided plaintiff. vey that the action demurred ground to'upon complaint of certain not be because could provisions maintained its statute trusts. territorial resulting relating Applying in the course Jackson, Wilcox court, previous ruling Mr. Justice said Daniel, opinion, through speaking (p. 563):
“Within the the.Constitution, provisions prescribed by *28 the the the laws enacted accordance with Constitution, to acts and of are the powers government interpreted maintain a so as to create and applied system, general, equal, . the and beneficial a this acts and the con rule, as whole By tracts of the must be understood as referring government of all of the and interests the members and. sustaining rights this nor intended from, as neither Confederacy, emanating for the nor of, local, any promotion any policy peculiarly such system respect dependent upon policy. adopted lands embraces the interests of all disposition public therein of all States, équal participation proposes of all This therefore system the States. peculiarly people a Federal The theater of power. exercise exclusively seat of Federal its is the government. accomplishment the evidences or muniments The mode of that accomplishment, it functionaries the work Federal are all bestows, right alone.” TERM, McKexíta,
In Pet. Gratiot, United States consid 526, 537, (1840) an was without to lease ering objection Congress power was said lands, (p. public 537): has the same over the lands as over Congress power public other any property States; belonging is vestéd without limitation.” power Congress In Gibson v. Chouteau, (1872) Wall. a92, state statute of limitations was held ineffective as from the against patent United States. The court, Mr. Justice Field, speaking through said (p. 100): “ The same forbids stace inter- principle-which any legislation with the of. power fering Congress dispose of the United also forbids States, property de- any legislation of the United States of the priving grantees possession reason of enjoyment property granted by any delay the transfer of the title after the initiation for its proceedings The consummation of the title is not a acquisition. matter which the can but one which control, rests grantees entirely with the title, With when legal trans- government. and- ferred, enjoy land, and it goes right possess would amount to a denial power disposal Congress ,if these which should follow benefits, acquisition could be because title, they forfeited asserted before that title was issued.”
In O'Neil, Fink v. U. S. 272, 283, Mr. (1882) Justice Matthews of the court, delivering opinion considering act' fourth section of the homestead May 1862, which thereunder that no lands should, provided acquired event any become debt contacted liable to any prior issuing declared that it was therefor, patent Congress by provision had of such made the from.sale on execution exemption national permanent policy. part
In
delivering opinion, and Mr. Justice Peckham, referred to; ingly speaking Water court, St. Falls Power Co.v. Water Anthony Commis s 168 U. S. ioners, 349, 362, referred to (1897) again approvingly the statement.
How these authorities this case becomes, completely apply I is think, manifest when it borne mind that the whether the United which it made of conveyance the land water with the title which it abutting parted owned confessedly to- prior the beds of the conveyance, lakes themselves. reservation as to and incidents re rights ferred to .in the made above from the excerpt Packer opinion is but a Bird, reiteration of the doctrine enunciated court in the sentences of the concluding Irvine v. opinion Marshall, its supra, is further import shown opinion Barney Keokuk, 324. In the latter case, was what question presented beds rights navigable streams attached abutting conveyed by grants said, court beds navigable waters within State virtue property State, by of its no in the bed of such a stream could sovereignty, rights be conferred from the United by conveyance States, unless state law. vested such owners with rights upland out reference to the source which the title to the upland had been derived. If -the . States as to nav power waters which hold in' igable they trust, follows necessarily *30 TERM, 1902. dissenting. McKenna, S. 190 U.
Justices White the a from United States what by conveyance rights pass must the to be determined land under waters by non-navigable the land and laws of United such water when States, to-whom in the in domain absolute situated ownership. belong The and its United States exclusive power ownership the Constitution to and control administer its property the it law is not thus follows the state demonstrated, being to what criterion which ascertain the United States by proper ex- a Federal to be and, therefore, there' is conveyed, amined. had held the United States
The court below although the meander line lots been and the not, fact; extended beyond the described as United States were fractional conveyed by that the took full sub patentees yet patents, plat "Where marsh land The was this: divisions. principle applied line which or waters were within a meander non-navigable upon lots the Uni abutted, lots conveyance by fractional ted also marsh land or water States carries non-navigable the- of a full' And the "meander to extent subdivision. beyond in result marsh and water in order accomplish this meander will be to have been considered surveyed, side the me be hence across the lines protracted Whilst ander subdivision. this theory embrace full so irreconcilable with the construction given 'plainly Indiana de law Court of United States cases by Supreme to Stoner v. ub. that case announced Rice, cided it sup., prior in Indiana sanctioned the rule, subsequent-cases have Kean v. the decision Roby, upon down to including In Hardin v. Jordan the doctrine was rested. case (cid:127)in an unwarranted -criticised as departure Rice Stoner v. ¡common it was observed—as was la undoubtedly, w^ court in Stoner Rice but the "Indiana case—that adopted Court of in Clute v. rule Supreme Michigan announced de-, Fisher, 65 in 1887, decided béfore the shortly Michigan, Stoner Rice. Gluts v. Fisher Now, opinion cisión in court in that case»but that the followed shows Michigan prior , it at the Palmer v. made same Dodd, riding term The latter involved title to land case within a Michigan, CO. CALUMET CANAL McKenna, Justices U. WHiTE-'and a meandered lake marsh, made section fractional under the law the whether turned controversy section extended the fractional of the owner rights Court line. meander Supreme Michigan, beyond said: deciding question, land described When the United States grants by patent the land entitled all subdivision, legal grantee *31 in contained his within embraced the subdivision grant, legal in the number of acres is not limited the specified pat no meanders the The have ent or sig upon government plat. and are intended such. nificance as boundaries, They con to a means area are run afford simply computing in the fraction which tained United States pay requires But no ment for on sale domain. grantee a can derive land, subdivision granting legal patent, we have title to another subdivision. This upon legal 54 cases of Wilson v. 246; decided Hoffman, Michigan, were based v. 59 which Sutherland, 455, ser upon Key Michigan, Court, in United States the decision Supreme Lessees 3 v. How. 650.” Clements, Brown’s hence in v. was It is that the rule Clute Fisher apparent ex the construction of the based lawof 3 this court in Brown v. How. 650. But Clements, pounded n i this Gaz court, decision Clute v. Fisher long prior the case of v. 20 How. had reviewed zam Phillips, (1857) v. of a fractional decided that Brown Clements, sale. did not full and-in lot a subdivision; convey consequence v. over this view case of Brown Clements expressly In cases the fact that that court ruled. Michigan subsequent its Clute v. Fisher had conclusion on mistakenly predicated has been case court had conceded. overruled, v. Ice & Ice Co. Grand Grand & Coal South Rapids Rapids court But whilst the Co., Coal Michigan, Michigan thus error it fell has into which inadvertently recognized in Clute the Indiana court has continued Fisher, apply rule, that which it rests has the sole although authority upon been repudiated.
Besides the error in the below which thus shown ruling TERM, 1902. McKenna, S. U. Justices White is moreover in conflict decisions exist, applied’ with principle of this court since Gazzam ruling Phillips. certain
In U. S. fractional Smith, Horne lots ap be bounded the west survey .by' plat peared meander of the Indian River. It found was, line however, which was that the water line and made the surveyed .fact the line of a of the lots was savannah, boundary bayou ' that had been an omission make a there it land west of the between main bed bayou The Mr. court, Brewer, Indian Justice speaking through River. said (p. 45): it it does not follow that a unsurveyed Although pat- carries with it the land for the tract surveyed adjoining ent but which been, to have was not which, fact, perhaps, ought the land which is only conveys surveyed, surveyed. patent it is and when clear from plat surveys at a tract terminated particular water, the body surveyed it.” carries no land beyond patent U. Club,
In v. Cedar Point Niles appeared in 1834-1835 of fractional was made townships *32 Erie. field Lake Ohio, By northern adjacent part were be and shown fractional, notes certain sections plat \yas shown of sur a line cause tortuous meander upon plat lots abutted. Across this me which the fractional vey upon as a marsh, described ander line there was a region country to be of facts a low, and statement body agreed and dry, beyond land, stretching swamp partly boggy partly claim the owner of of Lake Erie. The the abut shores that was not meander at the was his boiindary ting Erie. to the marsh, of the but Lake By réferring plat edge . of the one Tolleston Club excerpted reviewing previously land -whichwas in of the contro- situation cases, showing that condition it will be seen precise those cases, (cid:127)vérsy in Niles v. cases was involved Cedar those upon passed exact situation Club, it,. With the confronting supra. Point rule announced Indiana, the erroneous instead applying fractional lots held that the abutting this .the purchaser court but subdivision, did not take a was complete the meander on CANAL CO. CALUMET McKenna, S. 19017. Justices White he land which line only .meander got confined by Mr. for. court, through The speaking paid bought Justice Brewer, (p. 306): said. “ from the field plat *33 and subdivi the selection only legal contemplated patenting 519. hav sions.” Act 9 Stat. 28, 1850, survey September been at the and the bed of the lake bank, having ing stopped ascertained, or the area thereof subdivided, surveyed, platted TERM, 1902. 492 ' McKenna, White Justices had to the lake under attached land of the State bed no'right (cid:127) of the cases Indeed, the act. whilst some earlier land swamp act in direct the Indiana land conflict construed swamp with cases that act as court in the meaning interpreted case, above later Indiana in a Tolleston Club v. the' cited, State, con on the out that under correct court, rehearing, pointed struction land act a swamp survey patent un essential to the to the State prerequisites passing rights 3, der the land' March act.' And the act of confirmatory swamp had 1857, 251, Stat. has no. as clearly application, patents issued in 1853 made for all selections the State. £Ke
The mind cannot fail at onceto disturbance perceive serious title to vested that which must follow the suggestion rights act, land the State Indiana,-under of. .passed swamp 'to the which at the time States, .land of. belonging .United not been or selected issue the to the State had surveyed the- of the Interior for account State, Secretary into 1875, :whichwasnot subdivisionsuntil when parcelled legal lake bed land in Vas surveyed property the. the Unitéd States. to these Did the then, brought, questions:
Jam title to lands within such fines', meander lose her by running did fractional lots she, by issuing.patents lines?'-and to her meandered, were thus convey -abutting lakes ? center of the lakes grantees title It -be controverted from the cannot successfully begin since both under Confederation ning, .adoption laws for. and sale1of Constitution, sale, of both well domain have contemplated navi- water, dry covered’by except’that .land n . so -results from text stat waters. clearly gable This with reference utes I content sections myself making to.the .of-the to a citation Revised Statutes'relating, subject statutes.1 of some earlier margin 1785, May 20, Laws, : 1 Birchard’s Ordinances Confederation Land 11; 4, July 23, July 13, Birchard, p. 18; Birchard, p. art. 1787, 24; Birchard, 1788, 1 Birchard, p. July ; 9, 1788, 1 p. p. 29 and June April 21, 1792, 1 May 5, Congress ; ; : Stat. Acts of 257 Stat. 266 *34 493 CANAL CALUMET CO. dissenting. McKehna, 190 U. Justices White waters was land under that non-navigable subject The fact the settled sale, meandering navigable practice lots, illustrated fractional abutting aptly streams and making 8 The How. v. Lapice, ques 48. Surgett (1850) case act of March arose under 3, 1811, that case tion presented lands in mode to the of surveying 2 Stat. 662, relating section of that act of Orleans. second By Territory mode was conferred to rectangular depart power in the on certain waters Ter lands as abutting respected out into tracts as near to be Such laid ritory. on a river or of a and depth bayou, specified frontage practicable and to bounded lines as the nature of be th§ country the fifth most convenient. sec would render practicable By and. double concessions tion of the act certain preemption rights such waters were the lands back tracts on created fronting of the front conditions favor it described proprietors,, should in act that double concessions no being provided fit for far in as to include lands cultiva event extend so depth “ on or water creek, tion another course.” river, bayou bordering in the Within the area of involved contro concession double and the claim in the case named there was a on bayou, versy ¿nd back that the double should extend side was concession one. lands on on the that was non- embrace the theory bayou it, was that on other contended while, hand, navigable,. con should treated navigable, that.the.double bayou not be back to embrace the lands cession could extended bor contention on the bayou. dering Considering waters, came though bayou non-navigable, question, recited in the within act, of water courses description court said 69): (p. did To of water course what re- description legislature ; 18, 10, 1800, 3, 1803, May 1796, 464; May 2 1 2 73 March Stat. Stat. Stat. 1804, ; 1805, ; 26, February 11, 2, 2 ; Stat. 313 March 233 March Stat. 277 1811, 3, April 24, 1820, 566; 324; ; March 2 Stat. 3 Stat. Stat. XXXII, April Revised Title The 4 Stat. Statutes Public 503. chapter chapter (Homesteads), Lands, particularly four five (Preemptions), chapter (Sale Disposal Lands), chapter nine (Sur seven Public Lands). vey of the Public TERM, McKenna, U. S. ? fer The clause who owns provides every person enaotíng ’ ‘ a tract of land river, creek, or water any bordering bayou, have the course, shall back right land. preemption construed, of 1811has been act Public Department of to mean that Lands, nearly those owners whose forty years, *35 lands fronted on a stream were navigable for; only provided ‘ and that border,’ the word both in the clause and enacting to meant front aon water course; exception, navigable that is to such waters as are in the third described section say, act of which 20, Louisiana was author- 1811, February .the which, ized to a foym state constitution and act government, by and the rivers and the'river waters lead- navigable Mississippi, into into the Gulf declared to Mexico, or same, ing forever to be common and as well the inhabit- free, highways, as to other citizens of the State, ants of said United States. “ Similar as waters are common respects navigable provisions are .lands, to other States where there public practice ’ ‘ and has uniform to sell on been survey bordering fractional nor is the channel sections.; streams navigable as- Of it had to be ever sold a owner. left necessity, private of Lands almost executing Department exclusively to ascertain what and public surveys navigable, stream and, and fractions reserved from sale; should bordered what were not and should be the other waters hand, navigable, and channel sold.” sections, included square under the act of the case arose course, Whilst, 1811, rule in the obtaining years general points opinion of the sale land under on the non- Land subject Department the exclusion of land beds forming waters navigable waters sale. surveyand public navigable further, I developing Without subject append presently to acts rules of the a reference Congress, the margin1 1 January ; ; 1, 1870, Act of Stat. 409 July 16 Stat. 17 187 Act 21, 1874, ; 19, 1874, Act of December 18 February Stat. Stat. Act Instructions, 22, 1855, February approved by Surveying 293; Manual of 30, 1862, ; May Instructions Commissioner of Congress, 12 Stat. 409 Laws, p. 13, 1874, Cupp’s ; Public Laud July Office of General Land Office, p. ; Land Manual of Report of General of Commissioner
KEAN v. CALUMET CANAL CO. McKenna,
190 TJ. of the execu- surveys reports governing Land Department of the with disposition pub- survey tive officers charged from, show that which domain, beyond peradventure lic Hardin the decision of the up government beginning very non- to treat land under Jordan, general practice as the waters property navigable Indeed, of the domain. public and sell same part disclosed established the facts stated
the proposition just Court Indiana decided by Supreme cases various reviewed. I have at the outset the existence of Whilst, Surgett Lapice, out pointed occasioned reason which stream was the usually navigable meander line, subdivisions, provisions and hence fractional since, laws, both the- Confederation surveying there existed line wherever such meander also contemplated reservation or which at time an Indian claim private was made the extension prevented But it is from an meander surveys. day apparent early fractional lines sections came to be established resulting *36 rivers, not when occasioned Indian reserva- only by navigable or but claims, tions from other Thus where private causes. encountered or which a morass he surveyor deputy swamp water deemed as of impassable body non-navigable it would his not be in then survey* judgment to profitable be run and- meander line would created. fractional sections first When this and whether surveyor originated, practice of the districts uniform general respective applied surveying the official it, rules documents of which I can take concerning do enable me notice to But certain it determine. judicial is that This is evidenced 1827. prevailed prior practice 3, 1881, p. 1, 1890, 33, Instructions, May 34, January p. Surveying by 15, 1894, 30, 57, approved August last was act 1894, p. June 1877, Office, ; Report of the General-Land Stat. 285 Commissioner 28 response in p. 11.; Secretary Interior to resolution of the House' Letter of George Representatives respecting the Wolf and Lakes In 83, Congress, session; Illinois, Ho. H. R. Ex. Doc. 45th 2d Re diana Office, response to port the General Land Sen Commissioner 1896, January 14, giving information relative to certain ate resolution of 101, Congress, 1st Louisiana, Doc. No. 54th session. Sen. lakes OCTQBEE TEEM, 1902. McKenna, dissenting. U. from the Land to the a communication Department surveyor by dated 1827, at 30, Mississippi, January Washington, general and also a letter from the Com 862, Birchard’s by Comp. p. at to the Cincinnati, Ohio, missioner dated surveyor general 2 Birchard’s That 11, 1836, March 962. Comp. p. complaint was sometimes made had deputy surveyors mistakenly which it meandered marsh land, asserted should have been subdivided and the official surveyed, platted, also.indicated communication last referred to. The as to non-navi practice lakes above to is moreover alluded shown meander gable lakes here in (Wolf very ing controversy George) as of Beaver Lake and early adjacent River about Calumet the same shown Indiana time, decision Bank and Club cases, the Portsmouth Tolleston Clear and Lakes Louisiana Cross, Soda, Fairy Doc. 1st session. Sen. Cong. as'to lakes and ponds pre practice meandering general, districts created to 1850 is, how prior
vailing surveying the “Manual of shown Instructions” ever,- conclusively issued Land February 22, Department d^ted ' In a surveyors. let surveyors deputy guidance manual, Commissioner General ter transmitting directed attention fact that was a revised Office Land ,edition on instructions subject. previous Among in this manual was the instructions contained following, Land 714: Laws, 1 Lester p. in manner meander, aforesaid, are all
“3. You also lakes acres and twenty-five of the area upwards ; and deep ponds to be shallow ponds,- readily bayous; drained, also navigable not to be meandered.” are dry up, or likely mánúal was by Congress 30, 1862, This May approved the instructions manuals, 409. Like above reiterating Stat. *37 on 3, 1881, 1, issued 1890, were to, May January referred manual 30, approved June (p. 57); 28 Stat. 285. 1894, 15, Congress August made are sufficient to the statements alréady dem- Whilst in the manuals but that the rule contained substan- onstrate from the practice expressed prevailing tially beginning, KEAN v. CALUMET CANAL CO. McKenna, dissenting. S.'
10OU. demonstrated Com additionally report fact of the General Office for re wherein, missioner (p.131,) he said that substance it but reiterated rule, ferring t . followed Land always Departmen practice in reason then no for the an There is support proposition. decided nounced some cases state presumably courts— of the on the rule Hardin v. Jordan — that authority of a at the of a stopping body margin non-navigable of water and to. same deprive meandering operate of the title United States to land within the meanders, which the United States had owned before the meander lines . were run To this would be to declare that say only power existed in the executive officers government strip States of its mere method of property by survey, from the no when to that effect had been beginning authority and no such conferred, purpose contemplated. prac tice of the decisions of government court, seems leave no room for me, on this controversy Thus, subject.. where a stream was navigable meandered, and within the meander lines were islands unsurveyed of the forming part domain of the United public was subse request made under the quently statutes provisions United States for their" 12 Stat. 410, the survey, practice d towas with -the department an comply request as islands dispose domain. parts Re Office, Land 121. port said in the p. And, same re to the rule from the port, referring prevailing beginning' of lakes and concerning meandering ponds, where, subse to such lake beds quently meandering, reported dry, “ were they into the surveyed brought market. In all these instances the has United States but exercised the ordinary right proprietorship.”
The decisions of this court referred to already conclusively at establish the same time that the mere of a meander running line did not affect the title of the United the land within such meanders. Without over all the going cases, it suffices to call attention on this to Gazzam v. point Phillips, 20 How. and Niles v. Cedar Point Club, vox.. oxC—32 *38 TERM, 1902. and 190 U. McKenna, S. in
Quite United subject again passed recently .was 391. In that Rock U. S. case States v. Mission Company, a in waters and whilst the island, there existed small navigable under the to the land title of- the State waters was navigable title of the United States the island the' to sustained, up held.
The title of the United unaffected States being by prior the United of a did the meander, conveyance by speci- in lots abut- land contained described fractional fied quantity land under water within the meanders a meander, ting intendment convey 'legal unplatted, by being unsurveyed to embrace ? than the purported more grant common law, that at elaborately It cannot be controverted of land Jordan, the owner abutting out Hardin pointed water, by conveying upland on an body unnavigable restriction reservation without water, on the bounding be the the center stream to effect caused deed, legal to it it cannot But, me, seems land conveyed. boundary the statutes of United States relating that be questioned domain confer no whatever power the public disposal nor do such invest courts statutes sell unsurveyed public grants enlarge actually specified with the authority the United States States. A-grant by of the United the statutes to be is interpreted of con to be enlarged any principle is not therefore subject intendment of statute under the express beyond veyance is made. difference which be grant the authority made of construction applicable rules grants tween an is individual that grants granK.made government to be in its construed favor strictly are of the government in other words, nothing passes by the grantee; against is embraced necessarily expressly but grant its terms. the court in stated by subject aptly on this
The doctrine Shively Bowlby, speaking through Gray, Mr. Justice where U. S. 10): was said (152 in error that the the defendants question It was argued aof of construction bounded mere grant awas presented KEAN v. CALUMET CANAL CO. McKenna, dissenting. White Justices U. is if the the same as it wouldhave been grantor tide water, The rule But this is so. person.
had been
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*39
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And Land acts Department executing Congress itself with the Congress have so uni- dealing subject manifested that the of the United formly purpose grants States to land on a of water bordering non-navigable body should not the land water to the convey belonging United States limits of the land beyond actually expressed that it seems to me the for patent conveyed, statutes domain should read as if disposition they an contained to that effect. provision express I have shown rule from the already earliest prevailing for the day lakes and meandering non-navigable ponds, so called attention to the doing report Commissioner of the General Land Office made in which he stated TERM, 1902. McKenna, it had been constant from after practice beginning, on the had been meandered and
lakes lakes becoming dry, the beds thereof. As survey dispose of evidencing I call attention . following: practicó, The Land 13, 1874, Public Land Department, July Copp’s issued direction's which Laws, 1875, were to p. govern the beds of lakes and other like bodies survey non-navigable which had been meandered at the of water time original had become and sale. and which suitable ‘As the circular of instructions related to districts where the of only had abolished and could not have fice of been surveyor general such from to create districts different been intended rule.in in other inference districts, that obtaining legitimate in effect in intended to the instructions'is that put usual in other districts where office districts practice with. had been done This view away surveyor general *40 to the letter the in the finds forwarding support prelude “ in re : As arise instructions, of which circular says inquiries other of meandered lakes or the of the to beds survey gard office where the of water in districts surveyor of similar bodies is communicated,” been the discontinued, following ha.s general the which followed authorized The instructions survey etc. as the of the United States, the beds of such lakes property “ had receded dried as the waters so when permanently up fit, within area ordinary the to leave unsurveyed dry remainder of the for seasons, purposes.” agricultural to dealt with the mode have a (cid:127)instructions proceeding individuals. and title made obtained by case, Here, of the rule of 1855, as concerning again, lakes, that it the fact but in of non-navigable the meandering from the formulated the prevailing begin- practice substance of General Commissioner is shown by report ning, Land Office, 11, in 1877, p. where, made Report, Land Office to to the department surveying practice referring within a meander and waters situated islands navigable and also to 1868, thereto issued- in respect referring circular referred to, above said : 13, 1874, of July the circular these circulars were not embraced new The regulations CO. CANAL CALUMET McTEeníta; dissenting. Justices White and 190 U. but a formulation substance, were simply pre- their of the office theretofore with administered
existing practice to class of lands which applicable.” to the they reference from very is then established beginning It of the circular referred at the date until least just government, water had bodies of after to, non-navigable was, practice to beds .thereof became uncovered, when been meandered, United States, beds as the sep property dispose As the record does not lots. from former border arately which number instances practice disclose'the observed one hundred to Hardin v. nearly prior during years I state no Jordan, instance them, but, may single to me that the statement in it seems contrary Hardin appears, rule had that the left Jordan, contrary always prevailed, whatever, without must have from arisen con any support the uniform not to sell the channel of navi founding practice rivers-, with the uniform gable belonged to the as to waters, which be practice contrary non-navigable acts United States. on the But, longed Congress are clear that leave so no room for con substantial subject they in effect, amount they, legislative troversy, approval of the construction of the'laws the United affixed the administrative officers those laws founda very tion of the on government. Thus, 1, Stat. July after sale of border lots meander a marsh abutting and the Little Calumet Biver, Congress provided and sale of the lands within the meanders. So, also, after the to the State of Indiana of patenting the fractional lots abutting 1873, 17 Stat. on Beaver Lake, act Congress, January 11, the bed of lake granted to the State. Again, by *41 act of 19, 18 Stat. February 1874, 16, bed of a meandered known as Tarkio lake, situated in Holt Lake, County, Missouri, with a conveyed county, reservation, however, that should make to such title as county have set person might tled of the land once of upon any portion the bed part of the under thé lake, homestead and laws. Tet a preemption further illustration, which, because of its is ex- brevity importance, TERM, 1902. 190 U. McKenxa, an full. on Decem act, Congress passed approved
cerpted ber 18 Stat. reads as follows: the Senate aradHouse enacted by it Representatives Be of of America in That assembled, States so Congress the United or bed marsh sections fourteen, much of the pond sixteen north, twenty-six, township twenty-three, fourth meridian, east principal twenty range the. in the State of as shall' or county Wisconsin, Sheboygan, the water from the be reclaimed shall same, by may draining far or so as interests' of the held, be owned any rights the' owners of the concerned, are States, by United or marsh the same to said draining pond, abutting and divided thread thereof, the center or several among marsh said according owners and abutting pond, adjoining said owners to the rules of law, .upon payment adjoining one dollar and of the United States twenty into Treasury land acre for amount that has been or cents per five be so reclaimed.” may said, it is be conceded that
But, patentee, although was confined to the land States, under the law United of the fractional lots the actual boundaries conveyed, within an in- a matter if, conveyancing, nevertheless grant the state construed under law as dividual would be extending to the center of the such construc- water, dry beyond should be United States. tion applied same but asserts the which I have proposition This, however, considered, whilst seemingly accepting already fully law of the United States and the inter- true meaning it from the to over- proceeds beginning, given pretation it. throw made individuals are because
To conveyances argue therefore the law conveyances controlled by likewise so are controlled, involves, made but besides amounts to a non it, I see seyuitur, only that there is concerned, so domain far as denying, of the United States having complete ownership a government n suggestion supreme power premises. will determine as matter convenience state- courts *42 CANAL CALUMET CO. McKenna, dissenting. S. Justices White 190U. of a made the extent” United
law by grant no their courts have concep- without since force, upon power its to States of convenience United tion of property deprive a State in to thé title the laws of order divest resorting by owns, in which it of the United States property if laws be with its own it has never voluntarily parted ' in- when Moreover, convenience, argument applied. it on the considered, is without since rests merit, as- herently be held that it will convenience sumption purpose what a States is that United property passed by grant to be measured variable laws by standard, divergent instead of the States, several law the United States the United thus creat- operating generally throughout and confusion it to come to uncertainty ing by causing pass that a made United States of the au- by virtue grant conferred statutes thority States will mean one one State different wholly thing thing another.
As out this court Irvine v. pointed How. Marshall, 563,one of the of the Constitu- very objects provision tion with ample conferring power Congress respect of the United States was to con- property prevent very In -words, dition other is that for the things. proposition a rule of sake of assumed convenience should be interpretation to to about the condition resorted bring very inconvenience it which was the constitutional purpose by provision ques- tion to guard against. however, the United
Conceding, arguendo, grant by States should be construed as a matter conveyancing by law in a the local particular State, nevertheless' prevailing to me that the seems clear conclusion which thé court reaches As is erroneous. has been shown the Portsmouth Bank case Court of Indiana decided that a Supreme expressly of border lots the State was to conveyance governed, the rules of conveyancing applicable individuals, private but that the of the state officers was to be power ascertained' from the statutes of the State alone; it was consequently, decided had where State the lots conveyed abutting TERM, 1902. 190 U. McKenna, the exact contained on Beaver Lake description pat- such, *43 no to ents the United conveyances right gave the existed in the officers of lake, bed of the because power to which had been the sell lands surveyed State regularly only the local in In other decisions words', Indiana platted. distinction the rule of establish the exact between conveyanc- to and those the grant individuals ing controlling applicable in out court which was this the aby pointed, by government, Shively in Bowlby, from .the opinion previously passage quoted. the rule in Indiana that construction of a if it be the
Surely, its lands is to be State of controlled made the grant by it not now be held that a should statutes, grant the state by in Indiana not to of its lands situated is be the United States by the but the rules the United States, by statutes construed by to In other words, private grants. applicable conveyancing the lands of the United States the that in with govern dealing the law of Indiana local at is to be yet ment subjected which are accorded the time rights same deprived by aas To now so State, that the government. law to regarded to declare that it is within but the me, it seems hold, law the United States its local govern strip province condition of a reduce it the mere mental private attributes be avoided that individual. This suggesting difficulty'cannot by courts have decided that in the Indiana the this case particular the beds the lots carried. lakes, the transfer of border that the be construed local passed by must hence.it law.’ As has demonstrated, the decision been previously in this in of Indiana was effect case predi Court Supreme in v. Rice and cated on Stoner Tolleston its rulings previous it was declared doctrine In those cases Club cases. case Bank was not the Portmouth announced previous^ that that theory the court but overruled, upon proceeded held in cases because it subsequent case was inapplicable, of the land cases a that there had those been time lots were the United conveyed by water at the the border but law, local This based not any States. upon upon construed state court. the United That law of by CO. CANAL CALUMET McKenna, dissenting.- Justices White U. court of this overthrown the decision construction being by court other cases Phillips many Gazzam law, it Federal it, followed results that by which have its did not based beds ladees decision, court result was understood And that this Supreme pass. on the is shown of Indiana opinion rehearing Court it declared where case, Club expressly the Tolleston was incorrect, announced court if theory did not bed of lake its that the pass it was opinion The decision now States. title thereto remained whether the beds holds that the announced, therefore, the local law as a is to be determined lakes passed decision of When matter of conveyancing. develops of con as matter law, court that under local the Indiana did it is then effect the beds óf the lakes not pass veyancing, *44 did it the because has been decided that beds decided pass, had .of Indiana that there been Court the Supreme the fact law of United that under the the although results line of had none from a decisions conclusively there been now which are not It as of court comes then, questioned. this : of to this The beds lakes did not it, mind sees pass by my the did not law the cor law, the local Federal they pass but, neither the Federal construed; although rectly passing law, must be held local to have because yet nor the they passed it is of law which of for me to state, impossible principle mind does not it. because perceive my this case however, view, the
Pretermitting,
considering
the rule of
controlled
Hardin v.
it
remains
Jordan,
only
under the
whether,
of
to determine
stare decisis,
principle
my
to its
is to assent
the case at hand. Un-
duty
application
Hardin
Jordan
decided
of
since
v.
doubtedly,
rights
prop-
have accrued
made in that
predicated
ruling
erty may
is also
of
which
but it
that
case,
rights
unquestionable
property
under the acts
had vested
ruling
Congress,
prior
construction and
the settled
government pre-
practice
divested if
for almost a
would be
that case were
vailing
century
in hand is but an
this
.
the case
illustration of
Indeed,
applied.
States to land once
since
United
forming
fact,
patents
TERM, McKenna, dissenting.
190IT. 8.
which,
are in
beds
lakes
part
controversy
the decision in
case
issued
Hardin
Jordan.
prior
then
Two classes of
must
rights
property
considered—the
on the
from the'
one
true rule
foundation of the
existing
resting
and the other
the mistaken
of Hardin
government,
theory
upon
do not feel
v. Jordan.
I
at
liberty
indulge
conjecture
into
that the
which were
existence
cen
rights
brought
during a
are less
than
have arisen in
may
those
important
tury
short
the decision Hardin
since
comparatively
period
if
this view
aside,
Jordan.
those
only,
Putting
rights
of the United
who had
received the
States for
actually
been
beds of the lakes which had once
meandered were
consider it
concerned,
be that I should
my duty
might
rule of
decisis,
stare
deci
accept
controlling, under
sion
v. Jordan, and thus
plaintiffs
error,
Hardin
deprive
whose
their
and this
are here at
issue,
rights
property,
assumption,
department
legislative
govern
be thus
which would
inflicted.
ment would
wrong
rectify
the conviction that the con
cannot
mind, however,
escape
My
doctrine of Hardin v. Jordan
to the
can
of adhering
sequence
of those who
have
may
rights
be limited merely
the United States
title to land
actually acquired
past
lakes. On
of meandered
the beds
contrary,
once forming
the title to
the bed
that doctrine
strips
meandered
which was
or lake
during nearly
every pond
decision in
Hardin
Jordan,
which preceded
century
had been dis
on such meandered lakes
where
lots bordering
This shows the
United States.
inadequacy
posed
*45
a
the United
may, by change
suggestion
the doctrine now maintained.
form of
obviate
conveyancing,
when
rules
be
Whatever
change
conveyancing,
fit
becomes
lake hereafter
for sale,
bed of a meandered
ever the
a
call for
reiteration
must recur and
ruling
line
I
these circumstances,
upon
now made. Under
been
act
to have.already
should
seems to me
plainly pointed
Concluding for the fractional lots of Indiana Wolf Lake abutting upon did not title to land under Lake the water, convey George, issued that the based patents subsequently the title the Walcott survey purporting pass to. of the beds of the valid, land to once a lakes were I dissent. part that Me. am authorized to Justice McKeNNA I say joins dissent. notes the field Would seem from of 1834. It plat survey off marked lines were that the sections clearly dividing 145 Indiana, to Kean v. Roby, set. The case is similar posts No sufficient.. difficulty where the pronounced did not cover submerged that the felt on the ground furthermore, But in Hardin v. Jordan, ”
Notes
It notes distinctly appears ’ £ he at this marsh as his Bice, surveys the surveyor, stopped and a prepared, it. plat called These approved surveys field and showed notes, surveys based was re sale. patents, which were the limits of tracts disclose that the clearly aud terms plat, ferring did not land convey any to and was not intending government marsh. which was a part
[***]
[*****] not his sur- Bice erred extending It bemay surveyor the title does into error enlarge but his marsh, veys . fraction'al sections. to the surveyed conveyed by received sold the fractional sections, The United States only only an amount fixed the number acres therefor, conveyed, pay and one will not be heard insist receiving patent ordinarily an more land 'that reason of error part surveyor than than the for, was bought paid government for sale.” offering And the line same was attributed to a meander meaning Live S. in French- Glenn Stock Co. 185 U. 47, v. Springer, was,entitled land under But the State of Indiana to the is.said the beds the lakes in virtue the act Congress of. there act, and, known as the land September swamp error committed fore, below, as meaning could not ac is without But the State patents, importance. title to act land under the except by quire legal swamp 309; Brown v. Niles v. Cedar U. S. Club, Point patent, Machine Works ; 173 U. 473 Locomotive Hitchcock, Rogers’ 574; 164 U. S. American Emigrant Michigan Company, Rust, 589, 592, Land and Lumber Co.v. pat must beén ent have based as the statute clearly upon survey,