54 Minn. 290 | Minn. | 1893
The action is for partition. The complaint claims that the plaintiffs and the defendants Mead, Reilly, and Metcalf are the owners, as tenants in common, of the land, and the other defendants are joined to determine their claim of title. The other defendants who answer claim under the railroad land grant to the Territory in 1857. The lands in township No. 28 N., of range No. 22 W. of the fourth P. M., were surveyed in 1858, the subdivision lines being run in September of that year. The map or plat of the survey was filed in the office of the surveyor general, and was by him examined and approved February 27, 1854. In May, 1855, patents issued for lot 9, section 4, and lot 9, section 5, and in March, 1855, a patent issued for lots 4 and 8, section 5. The plaintiffs and defendants Mead, Reilly, and Metcalf claim under these patents.
All the lands surrounding the lake were surveyed, and appear platted as fractional lots. The controversy is over the bed of what is designated “Lake” in front of the patented lots, the plaintiffs claiming that, according to the law as laid down in Hardin v. Jordan, 140 U. S. 371, (11 Sup. Ct. Rep. 808, 838;) Mitchell v. Smale, 140 U. S.
On the trial the plaintiffs introduced the plat and patents and deeds passing the titles derived under the patents to them and the defendants Mead, Reilly, and Metcalf, and rested. The other defendants made certain offers of evidence, which, on plaintiffs objecting, were overruled. These offers and the rulings thereon present the questions in the case. The offers are too long to be quoted in this opinion, but they included a survey of the land covered by the 'lake,” made and approved in 1861, and facts which it is claimed would establish, not that when the original survey was made the water did not cover the tract marked “lake,” but that it ought to have been surveyed as land, and not to have been meandered as a lake. Conceding that the water was there at the time of the survey, and presented the question whether for the purpose of the survey it ought to be regarded as a lake or as land, the offers are, in effect, to impeach the survey by showing that it was error or mistake to regard it as a lake. The proposition suggests a question of great practical importance. It is a serious matter, in this state at least, where, as is of common knowledge, what was undoubted lake ten years ago might five years later be only marsh, and to-day dry land, if, after the lapse of forty years, a United States survey representing a tract of water as meandered lake, and according to which the government has conveyed the abutting land, can be impeached, and the rights of the patentees unseated. But the question is not presented in this case for solution. Of course, so long as the government had not conveyed any of the lands abutting on the lake, it could correct the survey, survey the tract under the water as land, and convey it as such. And it may be conceded (though it is by no means clear) that the government is not bound by an erroneous or mistaken survey, even after it has conveyed the land according to it; but it cannot correct such erroneous survey so as to defeat or injuriously affect the rights of its patentees by any ex parte acts, or in any way except by a proceeding to which such patentees
The patents conveyed- the fractional lots according to the survey as it was represented by the plat. The latter was therefore part of the patents as much as though it were fully set forth in them. On their face they transferred to the patentees the right to the land under the water, not as defendants seem to argue, if appurtenant and as appurtenant to the shore land, but they took the fee, (a fee cannot be appurtenant,) because, when land is bounded in the conveyance by a nonnavigable lake or river, it is presumed the parties intend the center, and not the shore, line to be the boundary. They may limit the grant to the shore line if that intention be sufficiently expressed. The patents, even though it could be proved that the survey was a mistake, and that the determination of the government surveyors and officials that the water on the land when the survey was made constituted a lake to be meandered was erroneous, were not void so far as they purported to convey the land under water. At worst they were only, to that extent, voidable at the instance of the government, in proper proceedings for reformation of the patents. White v. Burnley, 20 How. 235; Spencer v. Lopsley, Id. 264. The ease is not one where a boundary given is an impossible one; where the monument given as marking it does not exist, or cannot be found. In such a case the boundary or monument must be disregarded, and the extent of the grant ascertained by other means, if the conveying instrument furnish them. There might be a case where the land is in terms bounded by a lake or river, and no lake or river is in fact to be found where the granting instrument indicates it to be. There might, in such a case, be a question how far the court will go to find such boundary before resorting to other means to define and locate the grant. Such a case was presented in Whitney v. Detroit Lumber Co., 78 Wis. 240, (47 N. W. Rep. 425.) In that case a fractional lot was wholly in a quarter of a quarter section, if full, and appeared by the plat of the survey to be bounded
Order affirmed.