88 Ark. 37 | Ark. | 1908
Lead Opinion
(after stating the facts.) The first question presented is one of fact, whether at the time of the Government survey in 1847 the land in controversy was a portion of the bed of Walker’s Lake, or whether it was swamp land; for, if the former state of fact is found to have existed, then the title of the owners of adjoining lands extended to the center of the lake by virtue of their riparian rights as such owners; and, since the recession or drying up of the waters has left the land exposed, it belongs to them. See Rhodes v. Cissel, 82 Ark. 367, and cases therein cited.
Appellant was the plaintiff below, seeking to quiet her alleged title, and must succeed, if at all, upon the strength of 'her own title, and not upon the weakness of that of her adversaries. Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338. In other words, the burden of proof is upon her to show that the land in controversy was land, and not lake bed, at the time of the government survey.
In addition to that, the plats of the government survey and the field notes which accompany them show that these lands then constituted the bed of the lake, and were within the meandered lines of the lake. This establishes, prima facie, that the lands were a part of the lake bed, and the burden is upon the appellant to overcome it by proof to the contrary.
But, thus conceding the burden to be upon the appellant, the testimony which she has adduced convinces us that she is correct in her contention as to this question of fact, and that the land in controversy was swamp land at the time of the government survey, and was not in the bed of the lake. The surveyors made mistakes in relimiting the boundary lines of the lake, and included a large amount of low swampy land, which the waters of the lake did not cover. These mistakes were not unreasonable ones, and -do not demonstrate either fraud or gross carelessness on the part of the surveyors, for the evidence shows that there may have been grounds at that time .to believe that the meander line followed the bank of the lake. The intervening territory between the meander line and the bank of the lake was undoubtedly of that indeterminate character, low lands partly covered by water, about which the surveyors could reasonably have been mistaken, and which they may 'have concluded was the bed of a shallow part of the lake. There was a slash or low place along the meander line; and, as this may have been temporarily covered by water at the time, the surveyors followed its outer line, believing it to be the -shore line of the lake.
We are satisfied, however, that a mistake was made in establishing this line as the shore line of the lake. Out of the testimony of all the witnesses who testify from recollection as to the condition of the land and the boundaries of .the lake many years ago, the preponderance lies, we think, with those who say that the land in controversy was swamp land, and not lake bed. In addition to this, the condition in which the undisputed evidence shows the land to be at this day, and the character of the timber growing thereon, is convincing that it was not a portion of the lake in 1847. The present banks of the lake are well marked, and have not materially changed during the memory of those persons whose testimony on the subject preponderates. We will, therefore, .treat it as established that mistakes were made in survey, and that this land was in fact swamp land, and not lake bed. The real location of Walker’s Lake was and is far inside the meander lines run by the surveyors. At some points the bank of the lake is over a .mile from the surveyed meander line.
But, conceding this to be true, the fact remains .that a meander line was surveyed, which the field notes show was intended to indicate the shore line of the lake. A body of water constituting a non-navigable lake existed then and still exists within the meander line, though a considerable distance inward from it. The plats of this survey were filed in the General Land Office of the United States, and were accepted and approved by that department of- the Government as correct. In running the meander lines, the surrounding sections and parts of sections were necessarily made fractional, and, under the Swamp Land Act of 1850, surveyed land in the townships surrounding the lake were selected by the State. The selections were approved by the Secretary of the Interior, and patents were issued to the State conveying the land by description “according to the official plats of the survey returned to the General Land Office of the Surveyor General.” The State of Arkansas has, from -time to time, sold to individuals the surveyed lands and conveyed them by descriptions according to .the plats.
Neither the Land Department of the United States nor of the State of Arkansas has ever questioned the correctness of the survey, but, on the contrary, they have up to the present time treated and do now treat them as correct; if we may view in that light a failure to take any steps looking to a correction. Can an individual question the correctness of the surveys when neither the general government nor the State government has ever done so? Can an individual acquire and assert rights in these unsurveyed lands which the Government has never asserted against the riparian rights of the adjoining owners?
The Supreme Court of the United States, as early as the case of Spencer v. Lapsley, 20 How. 264, decided that “the issue of the grant or patent conveys the title, and questions of fraud or irregularity, or excess in the survey cannot be raised by other parties than the Government.”
Mr. Justice Lamar, in delivering the opinion of the court in Cragin v. Powell, 128 U. S. 691, said: “That the power to make and correct surveys of the public land belongs to the political department of the government, and that, whilst the lands are subject to the supervision of the General Land Office, the decisions of -that bureau in all such cases, like that of other special tribunals upon matters within their exclusive jurisdiction, are unassailable by the courts, except by a direct proceeding; and that the latter have no concurrent or original power to make similar corrections, if not elementary principles of our land law, is settled by such a mass of decisions of this court that its mere statement is sufficient. The reason of the rule, as stated by Justice Catron in the case of Haydel v. Dufresne, 17 How. 23, is that ‘great confusion and litigation would ensue if the judicial tribunals, State and Federal, were permitted to interfere and overthrow the public surveys on no other ground than an opinion that they could have the work in the field done and divisions more equitably made than the department of public lands could do.’ ”
In Russell v. Maxwell Land Grant Co., 158 U. S. 253, Mr. Justice Brewer, speaking for the court, said: “In the nature of things, a survey made by the government must be held conclusive against collateral attack in controversies between individuals. There must be some tribunal to which final jurisdiction is given in respect to the matter of surveys, and no other tribunal is so competent to deal with the matter as the land department. None other is named in the statutes. If in every controversy between neighbors the accuracy of a survey made by the government were open to question, interminable confusion would ensue.”
The same learned Judge, in delivering the opinion of the court in Whittaker v. McBride, 197 U. S. 510, said: “The official surveys made by the government are not open to collateral attack in an action at law between private parties.”
Mr. Farnham, in his work-o'n Water and Water Rights (vol. 2, § 422), states the same doctrine, as follows:
“Where a patent issues for a fractional lot appearing by the plat of the United States survey to be bounded on one side by a meandered lake, the patent is not void so far as it purports to convey the land under the waterj though it was an error in the surveyor to treat the tract covered by water as a lake to be meandered, instead of land to.be surveyed. Conceding the patent to 'that extent to be void, it can be avoided only by the United States in a suit to which the patentee is a party. The land passed, and a private individual cannot complain.”
The following decisions of the Supreme Court of the United States announce in effect the same principle: Michigan Land & Lumber Co. v. Rust, 168 U. S. 599; Humbird v. Avery, 195 U. S. 480; Oregon v. Hitchcock, 202 U. S. 60.
•The decisions of this court in Smith v. Hollis, 46 Ark. 17, and Williamson v. Baugh, 71 Ark. 491, are based upon the same principle. The court in these cases held that the decision of the Secretary of the Interior in determining whether or not certain ■lands came within the terms of the Swamp Land Grant was, in the absence of fraud, conclusive, and could not be overturned in a collateral proceeding.
The legal effect of the patents to the State of the fractional sections and parts of sections surrounding the meandered lines of the lake, according to the official plats of the public survey, was to convey all riparian rights, and by virtue thereof to vest prima facie title to the bed of the lake, as shown on the plats, from meander shore lines to center. The conveyances executed by the State in turn to its grantees had the same effect. Hardin v. Jordan, 140 U. S. 371; Mitchell v. Smale, 140 U. S. 406.
If title to the lands in controversy has not passed out of the United States to the State and its grantees in that way, it has never passed at all. Though the S'wamp Land Act has been held to be a grant in praesenti, the legal title did not pass until the lands were duly selected as such, and the patents were delivered. Rogers Locomotive Machine Works v. American Emigrant Co., 164 U. S. 559; Michigan Land & Lumber Co. v. Rust, 168 U. S. 589; Brown v. Hitchcock, 173 U. S. 473; Ogden v. Buckley, 116 Iowa, 352; Funston v. Metcalf, 40 Miss. 504.
These lands have never been selected or patented at all, unless the patents to the adjoining fractional sections embraced them.
The State of Arkansas, by the compromise settlement contract entered into with the United States, which was approved by act of the General Assembly of Arkansas, March 10, 1897, and by act of Congress, April 29, 1898, expressly relinquished her claim to any unpatented swamp land.
So the title to these lands is either in the owners of the adjoining lands by virtue of their riparian rights, according to the legal purport of the patents and subsequent conveyances, or it remains in the United States government. Until the government elects to correct the mistakes in the original survey and assert claim to the lands, no one can complain or dispute the title of the holders of the prima facie title. Schlosser v. Cruikshank, 96 Iowa, 414; Ogden v. Buckley, 116 Iowa, 352; Minnesota Land & Investment Co. v. Davis, 40 Minn. 455; Lamphrey v. Mead, 54 Minn. 290; Whittaker v. McBride, 197 U. S. 510.
Appellant in no event has any shadow of title, for, if the State took title as riparian owner under the patent to the adjoining land, she in like manner conveyed it to her grantees, and had no title to donate to the Levee Board. Towell v. Etter, 69 Ark. 34; Jeffries v. East Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518.
Whether or. not the State can now correct any mistake as to the quantity of land conveyed by her patent to individuals is not presented in this case, and we therefore refrain from any discussion on that point.
The case of Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338, has no application to the facts of the present case, and is not controlling. In that case the meander line was run by the government surveyors along the bank of a stream, and title was claimed under a patent of lands bordering on this meandered line by virtue of riparian rights -to lands lying beyond the body of water meandered. This court refused to sustain the claim, holding that no title passed under the patent to lands lying beyond the meandered stream. Neither do Horn v. Smith, 159 U. S. 40, Niles v. Cedar Point Club, 175 U. S. 300, nor French-Glenn Live Stock Co. v. Springer, 185 U. S. 47, have any bearing on the present case. They are cited in the Bigelow case, and the facts of each bring them all within the same class of cases, but they have no controlling force here, because of the difference in the facts.
We conclude that the decree of the chancellor is correct, and the same is in all things affirmed.
Rehearing
On Rshbaring.
The decision is vigorously assailed on the ground that we were mistaken in holding that the unsurveyed land between the meandered line and true shore line of this lake was not patented by the United States to the State 'of Arkansas. Courts take cognizance judicially of the general system of government surveys, and accordingly we know that lands ate surveyed and platted into sections and parts of sections and into fractional where they abut on streams or other bodies of water. The record in this case contains a plat and the field notes of the governmental surveys of the land surrounding Walker’s Lake, and they confirm the facts of which we are already judicially cognizant. Bittle v. Stuart, 34 Ark. 224; 7 Enc. Ev. pp. 987, 988; Webb v. Mullins, 78 Ala. 111; Ledbetter v. Borland, 128 Ala. 418; Peck v. Sims, 120 Ind. 345 ; Muse v. Richards, 70 Miss. 581; Standford v. Bailey (Ga.) 50 S. E. 161.
Description of lands, according to terminology employed in the system of governmental surveys and plats of lands, is necessarily a reference to the plats of those surveys; for those terms are meaningless unless so considered with reference to the surveys and plats. There is nothing known of townships, sections and part of sections of lands except such as are described in the plats of the government surveys. Therefore, giving the word “township,” used in the stipulation of facts, the meaning which we must attribute to the parties who employed the term, it has reference to the townships surveyed and platted by the government surveyors, and means the townships according to the. surveys and plats. A conveyance of the township “according to plat of the surveys” does not include lands which do not appear on the plat of the surveys. We do not mean to hold that the unsurveyed land could not have been selected as swamp lands and patented to the State by the use of proper descriptive terms in the patent; but this was not accomplished by reference to townships, sections or parts thereof according to the plat of the surveys, when the unsurveyed land did not appear on the plats at all. The plats showed it to be water and not land.
We are convinced, also, that, eveñ if we discard the technical meaning of the word “township,” the language of the stipulation is susceptible of no other reasonable construction than that only the surveyed land appearing on the plat of the public survey was meant to be covered by the agreement. It is evident that the parties meant only the surveyed lands appearing on the plat, leaving all questions as to the character of the unsurveyed territory .and title .thereto open to further proof and adjudication. We find nothing to indicate that appellees’ counsel meant to concede that, if the locus in quo should he found to have been land and and not lake-bed at the time of the survey in 1847, it was included in the patents from the United States to the State of Arkansas and belonged to appellant. In this respect the stipulation deals only with the surveyed land. It reads that “all of the surveyed lands in the vicinity and locality * * * were, in September, 1850, swamp and overflowed lands and passed to the State of Arkansas under the grant of-the United States of date September 28, 1850, and that the townships including Walker’s Lake, as meandered on the map, were included by the Secretary of the Interior of the United States government in the list of lands prepared by him and forwarded by him .to the Governor of Arkansas, showing the lands which passed,to the State under the grant of 1850, and that said lands embraced in said list were subsequently covered by patents fom the government of the United States.”
Now, as it was only stipulated that the surveyed lands passed to the State as swamp and overflowed lands under the act of Congress, it would be unreasonable, in the absence of a clear expression, to construe the meaning of the stipulation to be that the unsurveyed lands were patented by the United States to the State.
We therefore think that we were correct in saying that “the legal effect of the patents to the State of the fractional sections and parts of sections surrounding the meandered lines of the lake, according to the official plats of the public survey, was to convey all riparian rights and by virtue thereof to vest prima facie title to the bed of the lake, as shown on the plats, from meandered shore line to center,” and that “if title to the lands in controversy has not passed out of the United States to the State, and its grantees in that way, it has never passed at all.”
We have not been unmindful of the earnest reliance of counsel upon the case of Kean v. Calumet Canal & Improvement Co., 190 U. S. 452, but we do not think that the case supports their contention. On the contrary, we think that the views already expressed are in conformity with the conclusions reached in that case. The facts there were that the land in controversy at the time of the survey made by the Government, as well as at the time of the issuance of the patent to the State, was the bed of a non-navigable lake duly meandered by the survey and situated within the bounds of the section of land patented. The court held that the title to the bed of the lake passed to the State under the patent, and in turn to the State’s grantee under its patent, basing that conclusion upon the decisions in Hardin v. Jordan, 140 U. S. 371, and Mitchell v. Smale, 140 U. S. 406. It is apparent, therefore, that the court based its conclusion as to the passage of title under the patent upon the fact that the title passed as a riparian right or as an appurtenant to the surveyed land which was conveyed. This is apparent when we consider the language used by the court in the two former cases.
In Hardin v. Jordan, supra, Mr. Justice Bradley, speaking for the court, said: “It has never been held that the lands under water, in front of such grants, are reserved to the United States, or that they can be afterwards granted out to other persons, to the injury of the original grantees. The attempt to make such grants is calculated to render titles uncertain, and to derogate from the value of natural boundaries, like streams and bodies of waters.”
In Mitchell v. Smale, supra, the same learned justice, speaking for the court, said: “Our general views with regard to the effect of patents granted for lands around the margin of a non-. navigable lake, and shown by the plat referred 'to therein to bind on the lake, were expressed in the preceding case of Hardin v. Iordan, and need not be repeated here. We think it a great hardship, and one not. to be endured, for the government officers to make new surveys and grants of the beds of such lakes after selling and granting the lands bordering thereon, or represented so to be. It is nothing more nor less than taking from the first grantee a most valuable, and often the most valuable part of his grant.”
It therefore appears from the above quotations that the court held that the title to the bed of the lake passed because of the riparian or appurtenant rights, for it was not surveyed out as land, and was not described on the plat as land. In other words, it was conveyed as lake-bed and not as land. And so it is in the present" case. If the title to the unsurveyed land in controversy passed at all from the general government to the State under the patents, it passed by virtue of riparian rights, for it was designated on the plats as water, not land; and if the title did pass in that way, the State’s title in like manner passed to its vendees.
Counsel for the Board of Directors of St. Bran.cis Levee District has filed a brief, as amicus curiae, calling attention to the fact that the rights of the district in unsurveyed lands claimed to have been donated by the act qf 1893 (Acts 1893, p. 172) should not be prejudiced 'by a decision that the compromise between the State and United States affected its right to lands donated prior to the compromise. The district not being a party in the case, its rights cannot be adjudicated herein. The compromise is referred to in the opinion merely to call attention to the fact that the State has thereby released her claim to all unpatented swamp lands, and can not now make selections of swamp land and call for patents for the purpose of correcting mistakes in surveys. If the State did not obtain title under the patents, it is now too late for her to procure title.
Appellant claims title as vendee of the levee district, but, conceding (though not deciding) that the donation act of 1893 could be operative as a grant of the State’s equitable claim or title to unpatented swamp lands, and that the State could not thereafter release the claim to the general government, yet the right is not conferred upon appellee to question the accuracy of the original survey, and disturb the prima facie title of a prior .patentee of the adjoining land.
It may be that the donation act of 1893 conveyed to the levee district the State’s equitable title under the Swamp Land Grant of 1850 to unsurveyed lands situated, for instance, like those in the case of Chapman & Dewey Land Co. v. Bigelow, supra, the prima facie title to which had not been created by patent, and that the State could not, subsequent to the donation to the levee district, release the claim to the general government. But we are not required, by the facts of this case, to decide that question.
After a very careful re-examination of the case, bearing in mind the importance and magnitude of the questions and interests involved, we are of the opinion that we reached the correct conclusion on the former hearing. The petition for reconsideration is therefore denied.
