*1 OCTOBER TERM, 40d 1890.
Opinion of the Court. of those and their with the laws of Illinois judges familiarity to these give We, dissent opinions great therefore, weight. from the conclusions of the court
MITCHELL v. SMALE. ERROR TO" THE COURT OF THE CIRCUIT UNITED STATES FOR THE DISTRICT
NORTHERN OF ILLINOIS. Argued No. 1891. January 23, 26,27, 11, 1891. Decided May Plaintiff, Illinois, ejectment possession a citizen of sued in to recover granted in that lands State claimed to been have ancestor patent States, making a of the United the tenant a citizen State, owner, claimed, defendant. The under whom the tenant a citizen York, and, motion, appeared party New on his made was defendant. ' up ’then He set title under another from the United cause, first, upon ground for a moved removal diverse citi- abandoned, then, zenship, secondly, which a there con- troversy authority department involving grant of the land a 1Held, patent. that the case was removable for the second cause. Jordan, ante, 371, point grant Hardin v. that in affirmed pond of lands bounded on lake or which tide is not water and is not grantee pond navigable, ratably takes to centre of the lake or riparian proprietors, such; projection with other if there and that the strip beyond tongue meandering of a or of land line of the entirely pond being consistent the water lake with the natural land, boundary granted projection, which would include the if necessary boundary. to reach that
Ejectment. for the defendant. Plaintiff Judgment sued out writ of error. The case is stated in'the opinion.
Mr. William S. S. Prescott Mr. for Gregory Mr. William M. Booth Mr. James S. Harlan error. them on the brief. were with W. C.
Mr. defendants in Goudy error. Bradley delivered of the court’. Mr. Justice opinion v. SMALE.
MITCHELL case the same of this general decision upon depends Har in the case of been discussed which just principles in all essential the two cases being respects din v. *2 and land on the of them to both alike, margin much relating But the waters of Wolf Lake. before adverting under the to examine distinction between them, necessary supposed of jurisdiction. question n in the was and was commenced Cir- action The ejectment, in error, of Mitchell, cuit Court Cook County, by plaintiff defendants, Smale and John I. and three Jabez G. against summons was served them. Bennett, (cid:127)Frank I. and duly for Conrad Bennetts, attorneys, appeared specially being substituted as'sole defend- and moved that he be Jordan, N. affidavit of that made an Jordan The motion was ant. upon no interest, the Bennetts conveyed property had having that Smale was a and commenced, him the suit was before had no other interest. Jordan, under and him, tenant mere n on his Jordan, and denied the motion, court thereupon landlord and the cause as to defend was admitted own motion, Jordan filed a time, and in due Afterwards, as codefendant. the cause removal of the act of 1875 under petition as a of the United alleging Court into the Circuit Illinois, a citizen of that of removal plaintiff ground and sole York, of New a citizen Jordan, and that he, in the. the sole and that controversy owner of property, and stating him, plaintiff, cause was between of to the want affidavit as in his affirmed facts previously of Smale. tenancy Objec- in and the Bennetts, interest asked Jordan the plaintiff, tions to the removal made by being filed an amended and and obtained leave to amend his petition^ in his facts stated in out, addition petition setting to wit: matter, the following original petition, one arising said suit “Your states that petitioner that wit, in this, of the States the laws United in a survey lands embraced recover in and said suit to seeks Stages the United of of lands made by government public 3" (20), t’p section twenty of said embracing part un issued and 3d P. R. 15 N., E., M.,'in patents TERM, Opinion Court. title in under which fee your petitioner
said deraigned of said suit and him the commencement before then simple from the vested patentee. conveyance .by “(cid:127) ishe seized of that claims That the fractional as the declaration of one grantee tract- described said and survey, that DeWitt; Horatio D. deeds the. acts are not made pursuance Congress petitioner Sutes relating the United and laws surveying United States, lands that disposition public been misconstrued and laws said act of Congress said said land department disregarded, survey, of the land and the deeds department patents, proceedings and void are violation the contract rights illegal States; (cid:127)said Mitchell under the laws of the United vir- tue of the of said fractional tract alleged described ownership he, the declaration under and in plaintiff, pursuance *3 said and act of laws of the States, United is also Congress the said lands owner of so owned by virtue of your petitioner by said of and 1874 and deeds patents thereunder. This survey claims title fee to lands said other than said petitioner frac- tional tract virtue of said of 1874, said deeds issued thereunder of of the act pursuance Congress aforesaid and laws of the States, United and therefore states that said suit one under laws of the the arising United States this to a petitioner removal suit the act entitling ‘ of entitled An act to determine the Congress jurisdiction the Circuit Courts of the United and to the regulate removal of causes from courts, other state and for pur- in force March poses;’ 3, 1875, for that cause alone.” Whether facts stated for removal original petition were sufficient that admit some purpose, perhaps may was to be a citizen question. alleged and the defendant, a York. citizen New of the other defendants was not mentioned, citizenship though it is understood It is were of Illinois. clear, residents they that the therefore, case was not unless interest removable of Jordan was so distinct from that other separate defendants that it be could as between him determined, fully v. SMALE.
MITCHELL of the others as without and the presence parties plaintiff, to his alone, .statement, As he had in the cause. according his if this tenant, and as Smale title, merely relation there would Smale, seem to no (as was admitted be was,) the contest not title reason why respecting might good him and on between so alone, have been carried This was concerned. was done the case of far as Smale S. but Watson, 594; U. no the re- v. objection Ayers made, were made on that moval objections ground though sustained the court. which were not on other grounds, if it had been suffi- record, Still, as appeared fact divest the Circuit Court jurisdiction altogether, cient to it. We do not omitted upon court could have pass hardly difference in make would any see that the statute of Illinois that occupant declares ejectment result. merely and that all defendant, other named as of the- land shall be in the same to or may or interest title claiming persons 6. This is 981, Stat. Starr & Curtiss’ as defendants. joined § makes no rule, law the common declarative of merely or the of the action principles in the character change in the case Phelps it was decided True, therein. procedure is a the tenant party, S. proper v. U. Oaks, 117 of his reason citizenship, if the cause is removed the sub- not be jurisdiction Court will Circuit deprived defendant, though as the landlord admission of sequent does not But this with citizen of the same state plaintiff. only become primary that a landlord may prove are subordinated interests the tenant’s contestant, where on his. and made dependent there Bennetts, may defendants, the other
As to were a removal. They in sustaining been difficulty greater not and were faith, in defendants, good made apparently and the Jordan; plaintiff tenants acknowledged as them, action his against well insist on might prosecuting be successr should if he that, Jordan, in order well as against of the recovery be no failure of complete there ful, might cannot defendant that a held (cid:127)land claimed him. by We to elects make several which make an action plaintiff 596. Giles, 118 S. Little v. U. joint. TERM, 1890.
410 this as it we think that the But be additional may, ground removal, in amended stated to sufficient petition, to the removal be made. states authorize very clearly between involved parties authority controversy of the Land United States to Department grant patent under which the defendant claimed the right hold the land after and in view of the under' dispute patent which the claimed the same land. if cer- This, true, exhibited claim one tainly under the by party authority of the United States, which was contested government the other of a want of such party ground authority. In the settlement of this it is laws true, the controversy, State Of Illinois be invoked or both but ; one might party still would be no less true that the of the United authority States to make the relied on would be called grant necessarily We are, therefore, of question. opinion ground removal now a case referred under the presented arising laws of the United so within the purview act of The 1875. amendment was allowed, and no properly valid exists to the time of objection regard application. declaration as amended contained two finally counts on which he relied, wit:
1. A count the fractional S.W. of fractional claiming quarter section north, 37 15 township east, range according official thereof filed plat the land office at Chicago, prior year A2. count much of the S.W. claiming of said so quarter 20 as section lies between Wolf Lake and Lake. Hyde (This land in front of immediately that described in first count, and, in the shown to be original covered plat, water.)
The defendants pleaded and a waived, guilty, jury being the cause was tried Gresham, the court before Judge 1885, at the same time with the July, case of Hardin v. Jordan. made a judge facts, special finding gave judgment for the S.W. fractional of fractional quarter section in20, north, east, as township range patented United States to Horace B. DeWitt under dated
MITCHELL v. SMALE.
Opinion of the Court. count, March in the 1, 1850, described first but limited the meander line of the side next to the original survey and as to all lake; the rest of the land in found the dispute, not defendants The fractional section guilty. thus quarter to found the one of the fractional lots belong Wolf on Lake in as mentioned in 1834-5, the case of surveyed v. Jordan, Hardin on the north side of the lake, lying it was shown as on and plat survey bordering bounded the lake.
The difference between this case and that of v. Hardin Jor dan arise from fact that the or supposed strip tongue land into the lake from the north side running beyond meander line mentioned in Hardin (as imme Jordan) v. in front of the section fractional diately quarter belonging In the the court facts sets out plaintiff. special finding much of so as describes the meander line- original survey around the north of the lake and end as running eastwardly far as the of the of the sur line, Indiana and also a copy plat an in the outline of which is shown of Hardin v. vey, report case, Jordan. As stated in that the meander line is described in of the lake, as survey margin running along lake. shows all the fractional lots plat adjoining 1850, B. then states that Horatio DeWitt March, finding States and received a from the United purchased “ the lot fractional of fractional described as the S.W. quarter ection 37, 15, the district of lands sub township range to sale at acres, accord ject Chicago, containing of the said lands official returned ing plat ” to the General Land Office surveyor general; had that the mesne and held conveyances plaintiff by acquired to DeWitt said the title fee conveyed simple patent. lake and the of land then describes the tongue finding into it from the north side as shown substantially projecting of Hardin v. to which reference be report may made. then as follows: The finding proceeds That the lakes and lands embraced “Eighth. — that is to all the as well lands, say, original survey swamp which aré out- as those covered water, including ridge, TERM, 1890. — run around said the meandered line lake lakes side Office sur Commissioner caused General.Land *6 such that after was made the 1874; United survey veyed sold to A. Condit officers, its Alice the west proper southwest south half of the half of the the east half quarter, and the lot 2 of southwest of southwest the quarter, quarter, section T. R. 15 E., M., of fractional of P. and N., to Alice A. Condit in the issued said form for usual patents the defendant, and that Conrad N. is lands, said the mesne of the owner, lands so to conveyances, said patented Horatio B. of the DeWitt, owner fractional S.W. Condit; 20 in section the of fractional contested original survey, \ the officers of land before the proper department right to sell of the United States and title to said lands convey under said second which contest was decided survey, against said DeWitt of the Interior by*1 Secretary appeal, of to and favor the United States sell said lands right under said survey. “ Ninth. That said meandered line as it was run originally from said a one chain of across east the meander ridge point west and as corner on the is a- now the court as adopted of is line above the boundary water, where said entirely except intersects east line of section, line the fractional to quarter of which water Wolf Lake reach at point may possibly and that in the waters high stages, ordinary stages approach within four or five to chains of said point.”
Our views with to the of general regard .effect for lands around the of lake, a granted non-navigable margin and shown referred On to therein bind plat lake, in the v. Jordan, were case of Hardin and expressed preceding need not be and here. We think it a repeated hardship, great one to be to make new endured, officers government and of the beds of surveys such grants lakes after and selling the lands thereon, or granting bordering so to be. represented more nor less than nothing from the taking first grantee a most valuable, and often the most Valuable of his part grant. Plenty speculators.will found, as such always property increases in value, to enter and owner of deprive proper v. SMALE.
MITCHELL
such
its
and
place
persons
possession
enjoyment;
new
put
original
grant,
grantee
his action of
ejectment
adjoining property
plenary
own
is cause of vexatious
title,
of his
which
proof
litigation
or
not to be created
sanctioned. The
pretence
ought
from the
such
fact that
surveys, arising
making
strips
found
of land are
into the water
tongues
project
beyond
run for the
meander line
its
purpose
contour,
getting
general
will
for,
exist,
measuring
quantity
paid
always
do
or in most
since such
always,
cases,
projections
irregular
of such
exist. The
edge
difficulty
following
margin
various sinuosities
water
line,
and all the
projections,
meander
which
line,
occasion and cause
running
very
and inclusions of such
contour
its exclusions
irregularities
to the truth
an
result closely approximating
average
produces
in the
contained
fractional lots
as
upland
quantity
*7
The official
made from
the lake or stream.
plat
bordering
line,
the meander
but shows the
does not show
such survey
and the surround-
therefrom,
the lake deduced
form of
general
and
same. The
fractional lots
bordering
ing
adjoining
this
for identification of
issued refer to
when
plat
and
have
effect
and are
lots
legal
conveyed,
equivalent
to and are bounded
that
extend
of a declaration
by
they
as a natural
itself,
lake or stream
lake or stream. Such
object
one of the calls of the
and
de-
or
is
monument,
truly
virtually
and all
or
conveyed;
boundary
premises
scription
in the matter of
of such a boundary,
ripa-
legal consequences
water,
follow.
and title to land
rian
regularly
rights
in
mean-
that,
We do not mean
running
pretended
say
and
make a
obvious
not
mis-
line,
plain
der
surveyor may
in
fraud
which case
;
of a
or be
take,
guilty
palpable
to recall the
have the
would
right
survey,
government
or in some other
Cases
courts,
it
way.
have
corrected by
the meander line de-
which,
mistake,
in
have
happened
of his
did not
in the field-notes
survey
scribed
a surveyor
Such
line intended
the water
portrayed.
approach
Nor do we
not bind
mistakes,
course,
do
government.
on a
in
lands
that,
mean to
bordering
non-navigable
say
granting
'(cid:127)
TERM, lake or
the authorities
stream,
might
formerly, by express
limited the
words, to the water’s
granted premises
edge,
and reserved the
out the lake
survey'
or
right
grant
river bottom
other
But- since the
parties.
grant
.to
States of all
lands
overflowed
respective
swamp
therein,
done.
cannot be
n
In the
-case
cannot be
contended that
present
seriously
or
made,
fraud was
any
mistake
com
palpable
any
who made the
in
mitted,
1834-5.
surveyor
survey
of facts that
is
the lake in
apparent'from
finding
question
to considerable
subject
changes
height
depth
the water therein. A
datum,
bench
is used in
mark,
Cook
are
County,
(where
premises
question
situated,)
the.
as a standard of
water
Lake
comparison
height
Of course the
water Wolf Lake is
Michigan.
height
affected
that of Lake
since
are connected
Michigan,
they
two different outlets.
facts states that the
finding
level of
water
the lake
when the
question,
government
was made in
was 2.2
1834-5,
feet above
survey
datum,
four-tenths of
foot above the
level of Lake
average
which is 1.8 feet
But it
above datum.
also states
Michigan,
times,
Lake
at
rises to five
Michigan,
feet above datum,
which would cause the” lake in
to rise to a level
question
2.8 feet
(or nearly
than it
feet)
higher
when the govern
ment
was made. At such
times, of course,
little
very
of the said
projecting tongue
land would be visible. But.
not,
whether so or
it would not alter the
The existence
case.
of such
projecting tongue
with
consistent
the water
entirely
or lake
being
natural.
boundary
land,
*8
which would include the said
if
in order
projection,
necessary,
to reach the said
It has been
boundary.
decided
again
that the meander line is not
again
a
but that the
boundary,
water
whose
body
meandered is the
margin
true boun
Railroad Co. v.
dary.
Schurmeir,
MITCHELL v. SMALE. Opinion: Brewer, Brown, Dissenting Gray, JJ. Boom Co. v. 44
Marquette Adams, 403; Clute v. Michigan, 5 6 Fisher, 48; Ludlow, Indiana, v. Michigan, Ridgeway 249 Kraut v. ; Iowa, v. 549; Smale, 7 Crawford, Forsyth Bissell, 201. The case last v. cited, Smale, Forsyth presented case of a of land very tongue beyond projecting meander line into Lake a small lake Indiana, situ George, to the east ated of Wolf Lake and connected therewith. It is cited commented on in Hardin v. Jordan. opinion Iti.conclusion, our view on this the case is that the part to DeWitt and the is entitled conveyed, to, all S.W. 20 from its fractional section north quarter ern line boundary to the actual water extending southwardly line of the lake, wherever that with the be, -may riparian incident to such rights position.
The other in the case been' discussed in points raised v. Jordan, Hardin and do not opinion further require In notice. our conclusion, that the opinion judgment Circuit Court should be and that a reversed, general judgment should be rendered for the described property in both additional counts his declaration. is reversed a/nd the judgment cause is re- accordingly,
manded with instructions to enter judgment conformity with this api/nion. with whom concurred Mr. Justice Brewer, Justice -Mr.
Gray and Mr. Justice Brown, dissenting. Brown dissent myself Justice Justice Gray, Mr. Mr. case on the merits: for as in the the' also, preceding, further fact is stated therein. This notice. reason worthy fractional tract consisted originally quarter patented jf, four and acres. section, appears containing only there now, at the time of was and the survey patent, is a out land land surveyed tongue extending beyond (cid:127) so that acres; into the about lake, twenty-five containing at of' four acres and fraction, this little purchasing piece took title not held, as it is government price, purchaser, to the land but to the acres of merely .twenty-five surveyed, *9 416 TERM, 1890. Brewer, Brown, Opinion: Gray-,
Dissenting JJ. as .well as .the area of of large land outside survey, dry of the bank. This result is the lake and land under front certainly suggestive. it action,
On the removal appears question a tenant there were as defendants one of ejectment, present own after latter on his motion, and his landlord, coming were citi- The tenant and the suit was plaintiff commenced. of the same State. The Illinois statute zens ejectment is as follows: defendant parties bearing upon question “ are If the for which the action is actually premises brought such actual shall named occupant by any person, occupied suit, defendant and all other title or persons claiming interest to or the same also be as defendants.” may joined Starr & Curtiss’ Stat. sec. 6. The defendant there- 981, In U. S. 236, fore v. 117 Oaks, necessary party. Phelps was also an action of and landlord which tenant ejectment, in as here defendant, latter after the being parties coming “ commencement of the this court held that suit, real has a and substantial with the defendant ‘controversy’ within the of the act for (the tenant) meaning removal from courts, causes state which continues after his landlord is summoned in and becomes a party purpose protect- own his interests.” This decision to us to seems forbid ing removal on the ground citizenship. n familiar, So far as a Federal "it concerned, question law If ejectment title. that be plaintiff’s turps he is entitled if to.recover; then it is immaterial good, fails, claim or title defendant what the verdict must be may have, “ in his favor. If there is to the rule that in an any exception action to recover of land the must recover possession of his own title strength and that the defendant pos session can until lawfully show say, title, some you you no to disturb itme, has not out to right been us.” pointed v. Reynolds S. Mining U. Company, If first his from the grantor, by govern- for the land on the took bank, ment title to the centre of the lake, he was entitled to and no act judgment possession; of the officers the land thereto, department, subsequently
QUOCK UNITED STATES. TING- v.
Statement Case. limit his recovering judg- divest right prevent could his title to if the carried the other hand, On patent only ment. *10 to the then immaterial water line, entirely have the officers of the land may what action department the defendant in reference to taken premises beyond; n would and that be entitled to judgment; irrespectively in' had vested it was title, whether he any though question the State. that in an action is a ejectment,
'Tt novel proposition, the laws claim under some cah, up by setting defendant party into cannot a claim which States, inquired United manner affects it in no because trial, unnecessary make such is the dispute, which title, subject State from the of removal and irrelevant claim ground court. the Federal have,been and remanded reversed the case should
We think an reexamination and in that early state court; way of the State in the Court been had Supreme might merits of principal question. QUOCK TING v. UNITED STATES COURT OF THE UNITED FROM THE CIRCUIT STATES FOR APPEAL OF THE NORTHERN DISTRICT CALIFORNIA. 10, May 11, 1891.
No. 638. Submitted April 1891.Decided improbable to an evidence of interested witnesses fact does Uncontradictecl accordingly. require judgment rendered is a who also member of appellant, petitioner, been born within but claims to have race, the Chinese to be a citizen thereof. He consequently United and arrived at the of San Fran- is sixteen port years age, ,-New York, cisco the steamship City February, him refused to allow to land, customs The officers of holding and within China, that he was a emperor subject 1882, of the act of the restrictions May supplemen- VOL. CXL —-27