Murphy v. Tanner, 176 F. 537

176 F. 537 | 8th Cir. | 1910

GARLAND, District Judge

(after stating the facts as above). The plaintiffs in error, by reason of being the undisputed owners of the original government lots described in the statement of facts above set forth, claim that their ownership of such lots extend to and are bounded on the southerly side by the shore of Cedar Island Lake. It is conceded that these lots were patented by the government of the United States, and that the respective parcels of land were in the respective patents described as “according to the official plat of the survey of said lands returned to the General Land Office by the Surveyor General.” It is also admitted that the respective government plats of said townships represented said lots as bordering on said lake as a boundary, and that said plats were in accordance with the field notes of the respective surveys of said townships returned -to the General Land Office by the Surveyor General. It is also admitted that the meander line of said lake, as shown by said plats and field notes, is not coincident with the actual shore of said lake, and that a considerable amount of high rolling land exists between the actual shore of said lake and the meander line thereof as shown by said plat and field notes. The defendants in error, Tanner and Cronin, are homestead settlers upon the land, possession of which is asked in this action by plaintiffs in error. Defendant in error Cronin does not make claim to any land lying north of the Howe meander line as established by Fai-son. Therefore, in the view which we take of the case, the judgment of the trial court as to him will be affirmed. Defendant in error Tanner claims land lying north of the Howe meander line as established by Faison on the theory that Faison did not establish the Flowe meander line correctly according to the field notes and the plat of survey. The trial court held that plaintiffs in error were entitled only to the number of acres called for in the patent for the government lots hereinbefore mentioned. It, therefore, not only refused plaintiffs in error the right to go to the lake for the southern boundary of their lots, but also refused to let them go to the Howe meander line as established by Faison. The question presented for decision therefore is: Where is the southern boundary line of the government lots in question? Is said line the actual shore of Cedar Island Lake, or is said line the meander boundary line of. Howe established upon the ground by Edward L- Faison, or is it a proportional line which would give plaintiffs in error the number of acres mentioned in the patents for the'government lots hereinbefore, described ?

In view of the decision of the Supreme Court of the United States in the case of Security Land & Exploration Company v. Burns, 193 U. S. 167, 24 Sup. Ct. 425, 48 L. Ed. 662, we think the claim of the plaintiffs in error that they are entitled to go to the shore of the lake for the southern boundary must be denied. It is true that some of the land now in controversy is nearer the lake than was the land involved in the case cited; but, in view of the conceded fact that the Howe survey and the plat thereof was fraudulent and fictitious so far as the lake is concerned, we do not see how any legal right can be based thereon. We, therefore, upon the authority and reasoning of the Burns Case, hold that plaintiffs in error are not entitled to go to the lake for their southern boundary. While the Supreme Court in the case cited decided that the lake could not be held to be a natural boundary and that the meander line of Howe was not a true meander line, it did decide that the meander line should be considered as a boundary line and not a meander line. At the time of the decision of the Supreme Court in the Burns Case, the Faison survey was not before that court, if, indeed, it had been made at that time. It appears, however, from the facts found, that in 1893 settlers who had settled upon the land lying between the true shore line of Cedar Island Lake and the pretended meander line of Howe petitioned the government of the United States to survey said land claiming the same to be unsurveyed government domain. Such petition was finally acted upon favorably. Pursuant to such determination, a hearing was had before the Surveyor General of Minnesota June 13, 1895, and his report, dated June 21, 1895, that said land was unsurveyed, was confirmed by the Secretary of the Interior, and said land was then ordered to be surveyed by the Commissioner of the General Land Office. That subsequently one Edward I,. Faison, an examiner .of surveys in the Land Department of the United States, was duly authorized and instructed by the Commissioner of the General Land Office to survey, establish, and permanently mark on the ground the meander corners and the meander line of Cedar Island Lake as described in the field notes of the survey of Henry S. Howe, and as delineated upon the official plat of said survey, which meander line was described by said commissioner as the “Old Meander Boundary” between patented lands of the United States and unpatented public lands, to be surveyed by said Faison. Pursuant to said authority and instructions, said Faison surveyed and marked upon the ground a line which he designated as the “Old Meander Boundary” of Cedar Island Lake as described by Henry S. Howé, and surveyed all of the land lying between the said meander boundary as the same was marked upon the ground by said Faison and the actual water line of said Cedar Island Lake and duly made return and filed field notes of such meander line and survey which were thereafter duly approved by the proper land officials of the United States, and a plat of said survey was also thereafter duly made, approved, and filed in the office of the Commissioner of the General Land Office, the Surveyor General of Minnesota, and the United States Land Office at Duluth. It also appears from the findings of fact made by the trial court that, ever since the Faison survey was made, it has been attacked by parties interested, including the defendant in error Tanner, before the Department of the Interior, charged by law with the survey and disposal of the public lands of the United States, and that department has down to the present time consistently refused to set aside or disturb the same.

It seems beyond question to have been the intention of the Department of the Interior, in ordering the so-called “Raison survey,” to finally locate a line which should ever thereafter be the boundary between the patented and unpatented lands of the United States in said township. It was a proceeding to locate upon the ground the meander boundary line of Howe which the Supreme Court decided in the Burns Case should be considered as a boundary and not a meander line. Having located this line upon the ground, the United States, through the department having charge of the survey and disposal of the public lands, has finally accepted the same as the true boundary. The defendant in error Tanner, a mere homestead settler upon the public lands of the United States, seeks in this action to overthrow the meander boundary line established by Raison by showing the incorrectness of the same as a survey. There are strong and controlling reasons why she should not be permitted to do this. The United States, through the Department of the Interior, has decided that there are no public lands of the United States in the township in question north of the Raison meander boundary line. Tanner owns no land affected by the Raison survey and may never obtain title from the Government to the land upon which she resides. The title to the land, conceding all that she claims, is still in the United States. Until the United States has finally disposed of this land, the courts have no right to question the correctness of the government survey; on the contrary, the courts ought, so far as possible, to work in harmony so far as surveys are concerned with the General Land Office. We believe, under the circumstances surrounding this case, that it was. not competent for the trial court to enter upon an inquiry as to the validity and correctness of the Raison survey as a survey.

The trial court disclaimed any intention of so doing; but, in allowing defendant in error Tanner to claim land north of the Raison meander boundary line, it in effect abolished the Raison line as a boundary, which we do not think it was permitted to do.

In Kirwan v. Murphy, 189 U. S. 53, 23 Sup. Ct. 603 (47 L. Ed. 698), which was an attempt by'the plaintiff in error to enjoin Kirwan, as United States Surveyor General for the District of Minnesota, from making a survey of the land in controversy, the Supreme Court of the United States said:

“The Land Department must necessarily consider and determine what are public lands, what lands have been surveyed, what are to be surveyed, what have been disposed of, what remain to be disposed of, and what are reserved.”

Again in the same case, at page 54 of 189 U. S.; at page 603 of 23 Sup. Ct. (47 L. Ed. 698), the Supreme Court said:

“The courts can neither correct nor make surveys. The power to do so is reposed in the political department of the government, and the Land Department charged with the duty of surveying the public domain must primarily determine what are public lands, subject to survey and disposal under the public land laws. Possessed of the power in general, its exercise of jurisdic-lion cannot be questioned by the courts before it has taken final action. Brown v. Hitchcock, 173 U. S. 473 [19 Sup. Ct. 485, 43 L. Ed. 772].”

In Cragin v. Powell, 128 U. S. 698, 9 Sup. Ct. 206 [32 L. Ed. 566] the Supreme Court spoke as follows:

“That the power to make and correct surveys of the public lands 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 tfieir exclusive jurisdiction, are unassailable by the courts, except by a direct proceeding, and that the hitter have no concurrent or original power to make similar corrections, if not an elementary principle of our land law, is settled by such a mass of decisions of this court that its mere statement is sufficient. Steel v. Smelting Co., 106 U. S. 447, 454, 455 [1 Sup. Ct. 389, 27 L. Ed. 226], and cases cited in that opinion; United States v. San Jacinto Tin Co. [C. C.) 23 Fed. 279], 10 Sawy. 639, affirmed in 125 U. S. 273 [8 Sup. Ct. 850, 31 L. Ed. 747]; United States v. Flint, 4 Sawy., 42 [Fed. Cas. No. 15,121], affirmed in United States v. Throckmorton, 98 U. S. 61 [25 L. Ed. 93]; Henshaw v. Bissell, 18 Wall. 255 [21 L. Ed. 835]; Stanford v. Taylor, 18 How. 409 [15 L. Ed. 453]; Haydel v. Dufresne, 17 How. 23 [15 L. Ed. 115]; West v. Cochran, 18 How. 403 [15 L. Ed. 110]; Jackson v. Clark, 1 Pet. 628 [7 L. Ed. 290]; Niswanger v. Saunders, 1 Wall. 424 [17 L. Ed. 599]; Snyder v. Sickles, 98 U. S. 203 [25 L. Ed. 97]; Frasher v. O’Connor, 115 U. S. 102 [5 Sup. Ct. 1141, 29 L. Ed. 311]; Gazzam v. Phillips, 20 How. 372 [15 L. Ed. 958]; Pollard v. Dwight, 4 Cranch, 421 [2 L. Ed. 666]; Taylor v. Brown, 5 Cranch. 234 [3 L. Ed. 88]; McIver v. Walker, 9 Cranch, 173, 177 [3 L. Ed. 694]; Craig v. Radford, 3 Wheat. 594 [4 L. Ed. 467]; and Ellicott v. Pearl, 10 Pet. 412 [9 L. Ed. 475].”

The reason of this rule, as stated by Justice Catron in the case of Haydel v. Dufresne 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 better done and divisions more equitably made than the department of public lands could do.”

The following are later cases in the Supreme Court of the United States declaring the same principle; Whitaker v. McBride, 197 U. S. 510, 25 Sup. Ct. 530, 49 L. Ed. 857; Stoneroad v. Stoneroad, 158 U. S. 240, 15 Sup. Ct. 822, 39 L. Ed. 966; Russell v. Maxwell Land Grant Co., 158 U. S. 253, 15 Sup. Ct. 837, 39 L. Ed. 971.

Upon the facts found by the trial court and the law applicable thereto as announced by the Supreme Court, we hold that the Faison meander boundary line is the southern boundary of plaintiffs’ in error government lots, and that the trial court erred in restricting them to the number of acres called for in the patent, so far as the defendant in error Tanner is concerned.

We might reverse the case and order a new trial; but as the facts upon which the rights of the parties depend are all before us. in the findings of the trial court, we will affirm the judgment of the trial court as to the defendant in error Cronin, and reverse said judgment as to the defendant in error Tanner, with directions to the trial court to enter judgment, upon the facts found, in favor of plaintiffs in error and against Tanner for the possession of so much of the land described in the complaint as lies north of the Faison meander boundary line, and it is so ordered.