103 F. 104 | U.S. Circuit Court for the District of Minnesota | 1900
This is a bill in equity, wherein the complainants ask for a decree restraining and perpetually enjoining the defendants from making a survey of certain lands claimed by the
Upon final hearing the following facts appear: (1) On or about April 26, 1876, a contract for the survey of all lands in township 57 FT., of range 17 W., in St. Louis county, Minn., was made by the government of the United States with one Henry S. Howe, as a deputy surveyor of ihe United States; and thereafter said Howe made and filed what purported to be field notes of a survey of said township, from which a purported official plat of said township was thereafter made, and approved by the surveyor general of the United States for the district of Minnesota, and by the commissioner of the general land office, of which plat Exhibit A, attached to the bill of complainants, is a substantially correct copy. (2) There is no evidence, nor any marks upon the ground, to indicate that any actual survey of said township 57 was ever made by said Howe, as required by his said contract and by the rules and regulations of the general land office, or at all, beyond the running and due marking of the exterior boundary lines of said township, where the section, quarter, and other posts and markings established by him are, and always have been, clear, distinct, and readily found and traced. There is no evidence on the ground that section lines were ever run by him in or across said township, or section corner posts or quarter posts ever located or set by him, except a corner post at the northwest corner of section 36, and a quarter post in the western line of said section 36; and there is no evidence that witness trees were ever blazed or marked by him. (3) 'Cedar Island Lake is a navigable, deep, and permanent body of water, fed principally by springs, having an area of about 900 acres, instead of about 1,800 acres, as described in the field notes of Howe, and shown on said official plat of said township. Instead of the shores of said lake being low and swampy, as stated in said field notes, the banks are generally high and sloping lands, suitable for agriculture, extending around the lake, and support a good growth of pine and other forest trees, large enough for lumbering, such as will not grow in water. The condition was the same in 1876, and no material part of the land surrounding the lake is accretion. Southerly and westerly of said Cedar Island Lake are five other deep, navigable, and permanent lakes, in tbe same township, none of which are shown by the field notes of Howe’s survey, or upon said government official plat of said township, and all of which have, since the making of said official plat, been sold and patented by the government, as land, according to said ifiat. (4) There is no evidence
The case as presented at the final hearing does not differ in any material respect from tlxe showing upon the motion for the preliminary injunction. If that injunction was properly allowed, a decree for permanent injunction should follow. The order graniing that injunction was affirmed by the circuit court of appeals, and Judge Liner’s very full and dear presentation of the facts and of the law leaves little that can he added. Kirwan v. Murphy, 28 C. C. A. 348, 83 Fed. 275.
In the surveying, plaiting', offering for sale, and sale, of lands, the government deals as proprietor. The transactions are matters of business; and as between the government and its patentees, or the purchasers from such patentees, all the rules applicable to private ownership and private sales attach, as in the ease of an individual vendor. The government, through its agents and employés, makes the surveys and prepares the plats according to which it offers for sale and sells its lands. If its agents and employes are negligent or unfaithful, and loss to the government results, it cannot shift that loss upon an innocent purchaser, who has bought and received title upon the representations of the plats prepared by the government, and according to which the laud is offered for sale, and the sales made, and the title to the lands conveyed by patent. Thp question whether the government, because of die negligence or fraud of its surveyor, has any claim to any part of the land which it has sold and conveyed by pa torn t to the purchaser, is a question which the land department of the government cannot assume to determine. The patent passes the title from the government, and takes the land from the jurisdiction of that department. “With the title passes away all authority or control of the executive department over the land, and over the title which it has conveyed. It would be as reasonable to hold that any private owner of land who has conveyed it to another can, of his own volition, recall, cancel, or annul the instrument which he has made and delivered. If fraud, mistake, error, or wrong has been done, the courts of justice present the only remedy. These courts are as open to the United States to sue for the cancellation of the deed or reconveyance of the land as to individuals, and, if the government is the party injured, this is the proper course.”
While these fractional lots bordering on Cedar Island Lake, which complainants purchased of the patentees, are much larger in acreage than is represented on the plat, this alone furnishes no ground to warrant the land department in disregarding the patent, and assuming to take possession of the excess through a resurvey, and selling the same again. In Mitchell v. Smale, 140 U. S. 406, 11 Sup. Ct. 819, 840, 35 L. Ed. 442, a small fractional lot, of 4| acres, meandered on a lake, was held to include an unsurveyed point running beyond the meander line and into the lake, containing 25 acres. And a subsequent survey by the land department, and patent to another purchaser of the 25 acres, was held invalid. The court said (page 412, 140 U. S., page 821, 11 Sup. Ct., page 444, 35 L. Ed.):
*109 “We think it a great hardship, and one not to be endured, for the government officers to make new surveys and grants to the heds of such lakes, after selling and granting- the lands bordering- thereon, or represented so to he. It is nothing more nor less than taking from the first grantee a most valuable, and often the most valuable, part of his grant. Plenty of speculators will always be found, as such property increases in value, to enter it and deprive the proper owner of its enjoyment; and to place such persons in possession under a new survey and grant, and put the original grantee of the adjoining property to his action of ejectment and plenary proof of his own title, is a cause of vexatious litigation, which ought not to he created or sanctioned. ® * The official plat made from such survey does not show the meander line, but shows the general form of the lake deduced therefrom, and the surrounding fractional lots adjoining and bordering- on the same. The patents, when issued, refer to this plat for identification of the lots conveyed, and are equivalent to, and have the effect of, a declaration that they extend to, and are hounded by, the lake or stream. Such lake or stream Itself, as a natural object or monument, is virtually and truly one of the calls of the description or boundary of the premises conveyed; and all the legal consequences of such a boundary, in the matter of riparian rights and title to land under water, regularly follow.”
See. also, Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. Ed. 428.
In the present ease the official plat shows the bank of Cedar Island Lake, a large permanent body of still water, as one of the boundaries of each of the fractional lots here in dispute. This is a natural, unchangeable monument and boundary, to which courses, distances, and quantities must all give way. The purchasers of these fractional lots from the government, and, later, their vendees, the complainants, going upon the ground with a copy of the official map before purchasing, would not find section corners, nor any interior lines in the township; for the evidence shows that nothing of the kind was marked or designated on the ground. The only monument or boundary visible was the bank of Cedar Island Lake; and, with that boundary fixed and plain, they would form their judgments as to the location, character, and value of the land, and as to the value of the timber thereon, which they were purchasing, as well as of die riparian rights belonging to and parcel of the land. The proposal of the land department now is to take summary possession of this very portion of these lands which the patentees and their vendees, the complainants, were able to locate with certainty, from the only fixed and visible boundary, and with reference to the value and desirability of which, including the riparian rights, the purchases were made, and allow the same to be now entered by prowling squatters. If the United States has still any valid claim to any portion of these lands, the title to which they have conveyed away by patent, they should first establish such claim in a court of justice; and, if they can i'ecover any part of any of those lots, it is quite certain that it will not be the pari; which the land department now proposes to take, — the very part, including riparian rights, which the patentees and complainants were shown by the plat to be the lands which they 'were purchasing, and which they examined with the view of purchasing, and in fact did purchase and pay for. The evidence shows, as is above stated, that the riparian rights upon this lake were considered by complainants as an important element of value in making
“The incalculable mischiefs that would follow if the riparian owner is liable to be cut off from access to the water, and another owner sandwiched in between him and it, whenever the water line had been changed by accretions and relictions, are self-evident, and have frequently been animadverted on by the courts. These considerations apply to riparian ownership on lakes as well as streams. * * * The owners of lands bordering on them have often bought with reference to access to the water, which usually constitutes an important element in the value and desirability of the land. If the rule contended for by the appellants is to prevail, it would simply open the door for prowlin'g speculators to step in and acquire title from the state to any relictions produced in the course of time by the recession of the water, and thus deprive the owner of the original shore estate of all riparian rights, including that of access to the water. The endless litigation over the location of the original water lines, and the grievous practical injustice to the owners of the original riparian estate that would follow, would of themselves be a sufficient reason for refusing to adopt any such doctrine.”
The government having sold these fractional lots, and conveyed the title thereto to the purchasers by patents which, by reference to the plat, ’ covered the lands to the banks of Cedar Island Lake, the land department has no jurisdiction or authority to meddle with these lands by making the survey which that department has ordered, and which the defendants were about to make when this suit was begun. If the government has any right or equity to have such patents corrected because of error or mistake, it must apply to a court having jurisdiction for that relief. And in such case, from the showing made in this suit, the title of the complainants to such portions of such lots' as border on said lake, as a permanent, visible boundary, will be the least assailable. Decree will be entered as prayed for in the bill, and the form thereof, unless agreed to by counsel, may be settled upon two days’ notice.