Lead Opinion
The controversy in this case is concerning the title to a strip of land lying along the northerly shore-of the Mississippi river at St. Paul, and opposite lot one,, section five, town twenty-eight, range twenty-two, and lota three and four, section thirty-two, town twenty-nine, ranga twenty-two. Lot one was conveyed by patent to Louis-Robert, March 24, 1849, and lots three and four to Norman W. Kittson, the same date. The surveys were made in 1848, and approved, and the official plats of the townships were of course, at the date of the patents, on file in the land-office of the district. In 1852, the strip in question was, pursuant to-instructions from the general land-office, surveyed as an island, and inserted upon the plats as lot three, section five-above, and lot five of section thirty-two above, and, April 7, 1855, was conveyed by patent to John M. Lamb. Under the latter, this plaintiff claims title; the defendants under Robert- and Kittson. Lot one, section five, and lots three and four, section thirty-two, abut, according to the official plat, on the river. The plaintiff claims, as a fact, that at the date of the-patents to Robert a-nd Kittson, the strip in controversy was an island, surrounded at all stages of water by the waters of the river, with a channel and current between it and the main shore. The defendants claim, as a fact, that it was
This court, in Schurmeier v. St. Paul & Pacific R. Co., 10 Minn. 59 (82,) decided that the meander lines of governmental subdivisions, bordering on navigable, rivers, do not limit the grant in a patent; and this decision was affirmed by the supreme court of the United States in the same case. Railroad Co. v. Schurmeir, 7 Wall. 272. The question is-therefore set at rest. In the same case, this court held that the common-la rule as to the construction of grants of land, bordering on streams is in force in this state, and is applicable to patents or grants of the public lands by the general, government. But patents and grants by the general governments may be controlled in this respect, as in others, by the-acts of congress regulating the survey and sale of the public, lands; and, in the case we have cited, the supreme court-of the United States decided that, under the various acts of
■ It remains to be considered whether, aside from this reason, the defendants, were entitled to a verdict. The record contains copies of the official plats of section five, town twenty-eight, and section thirty-two, town twenty-nine. Upon these plats the Mississippi river, through or opposite these sections, is delineated. The plats show no island in that part of the river, no land between which and the main land any channel runs. From them it appears that the lots granted to Robert and Kittson extend to. the body of the river, the main stream. By the survey, as shown on the plats, the strip in question was surveyed, not as an island,- but a part of the main land, and included in those lots. After the government has sold lands according to a survey and plat, it cannot,(as-a.general rule, at least,) dispute the -truth of such survey and plat. Bates v. Illinois Central R. Co., 1 Black, 204; Lindsey v. Hawes, 2 Black, 554; Railroad Co. v. Schurmeir, 7 Wall. 272. If there be any case in which, after a sale of the lands, the government may question the accuracy of the survey and plat by which it sold, it is not such a case as this.
There is nothing to call in question -the good faith towards the government of the surveyors who made the first survey. The testimony makes it doubtful whether, at the time of that survey, the strip in controversy was an island or- part of the main land. In such case, the surveyors may determine, to the best of their judgment, whether such strip, should be surveyed as an island or a part of the main land'; and if their survey is approved, and the land sold according to it, the government
Under the views we have expressed as to the effect of the original surveys and plats, and the grants to Bobert and Kith-son under them, the direction of the court to the jury to return a verdict in favor of defendants, was right.
Order affirmed.
Dissenting Opinion
dissenting. As stated in the majority opinion, the official plats of the townships in which the lots purchased of the United States by Bobert and Kittson lie, contain a delineation of that part of the Mississippi river lying in those townships, and such plats show no island in the river opposite to said lots. But, except by the absence of any island from this representation of the river, it does not in any way appear whether there was an island there or not, nor that the land in controversy was included in the original survey. Now, as under the decision, of the supreme court of the United States, a riparian owner upon the Mississippi river takes to the stream and no further, an island — that is, a body of land separated from the shore by a part of the stream — does not pass to the owner of the shore lying opposite to it, by virtue of his riparian ownership. He stops at the stream. If there is an island opposite his land, he does not acquire it. He has, therefore, no right to insist that the plat shall show such island, if any there be. The United States is under no obligation to disclose to him the character of the river as clear of
This case having been remitted to the district court, judgment was entered on the verdict, and the plaintiff again appealed.
This case was heard at the last October term of the court upon an appeal from an order denying a motion for a- new trial. This appeal, which is from the judgment entered in the court below since the decision of this court upon the former appeal, presents no question not raised on that appeal. The judgment will be affirmed for the reasons set forth in the opinion then filed.
I adhere to my dissent in the former appeal.