Defendant bases his title by argument in this court, and by pleading and evidence below upon the following grounds: that although the plat and field notes of the original government survey in 1852 showed no land or exposed bed within the shore lines of this body of water, on January 6, 1896, under instructions from the Department of the Interior and its land commissioner, one William P. Hall, a United States Deputy Surveyor, surveyed within the shore lines of said body of water, which he designated “Brown’s Lake,” 758.31 acres of land which was omitted from the survey of 1852, as stated in the certificate of the commissioner, under date of January 30, 1900, filed with plat of the survey, May 24, 1909, in Woodbury County Plat Book 15, page 8; this hitherto* unsurveyed land by the resurvey thereby became a part of the United States public domain and subject to sale; on October 31, 1906, President Theodore Roosevelt executed a patent granting to James I. Parker, Government Lots 6, 7, 8 and the
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SE1/^ of said Section 29, containing 158.15 acres, being the land involved in this controversy; Parker was in possession of the land and had built a house on it at the time of the Hall survey, as shown by his plat of it; the certificate of the county surveyor of January 3, 1899, states that for the purposes of taxation he had surveyed and made an auditor’s plat of the same land that Hall had resurveyed for the United States Government about 1896, although the acreages of the auditor’s plat differ somewhat from the Hall plat; the land claimed by Nichols, and involved in this suit, is described as Lots 4, 5, 6, 7, and 8 of the auditor’s
plat; the parties stipulated .that this laud for 1931 to 1938, inclusive, was taxed in the name of Win S. White, and sold at scavenger tax sale on January 23, 1935, to H. M. White for the delinquent taxes for the years 1931, 1932 and 1933, and the
The cause was tried to the court on June 7, 1949, and after submission on written briefs and arguments, judgment and decree was rendered on October 12', 1949. The court found that 1he so-called lake designated as Brown’s Lake was a bayou of the Missouri Biver that had become a shallow lake or slough, which was not navigable nor had been since Iowa was a State, and that at the time of the trial the State was engaged in extensive dredging operations for the purpose of deepening the water, but the area being improved was at a considerable distance from the land involved. It was the court’s conclusion that the rules pertaining to navigable waters would not apply, but the rules stated in State v. Livingston,
We agree with these specific findings and the decree of the court.
There is no dispute as to the authenticity of any of the exhibits or documentary evidence, although the parties disagreed as to the inferences to be drawn from some of them. It is true that plaintiff alleged in its petition that while the official records in the cause which ended with the decree of July 19, 1946, show that the State of Iowa was served by registered mail with the original notice with copy of the petition attached, as provided by statute, there was no record in the office of the Attorney General of Iowa indicating that notice of the action was received by that office, and that neither the Attorney General nor any member of his staff had any knowledge of the action, and that the signed return, showing the receipt of the registered mail containing the original notice in the clerk of court’s office, was executed by a person not connected with the Attorney General’s office. The plaintiff offered no evidence to sustain these allegations. The court files and record in the prior case were in the record and were affirmative evidence that proper notice of the action had been sent by the defendant to, and received by'registered mail at, the Attorney General’s office. The court in that case found that the State of Iowa had been duly served with the notice and that it had jurisdiction of the subject matter and the parties.
Plaintiff offered no evidence of the navigability of the lake or the depth of its water at any time. The plat and the field notes of the original government survey show that this body of water was not meandered as a lake, but as an arm or bayou of the Missouri River. Mr. Sayre, a civil
While the judgment in the
On Bigelow’s appeal this court affirmed, and held (page 163): that a considerable portion of the island was quite elevated and entirely above high-water mark and was under cultivation by defendants, that “the plat of the government survey made in 1851 does not show any island, bnt marks the space where the island now exists as ‘bayou’. The testimony of a number of witnesses familiar with the locality shows, however, that an island did exist there prior to that survey, and the size and age of trees shown to have been cut from that land leaves no doubt in our minds but that an island existed there at and before the survey. * * * We conclude that, notwithstanding what appears in the government plat, the island did exist at the time of the survey as a separate and distinct body of land from the plaintiff’s lots.”
Defendant was the only witness for himself, and Sayre was the only witness for plaintiff. Sayre had no acquaintance with the lake prior to 1933. In September of that year he made a survey of Brown’s Lake in Sections 28, 29, 32, and 33 in said Township 87. From his field notes he made a plat of his survey. The original plat (marked Exhibit B), apparently made for use in the quieting-title suit brought by the State of Iowa, which terminated in the decree of January 15, 1934, has been certifiéd to us with other exhibits. For use in this trial, Mr. Sayre made •a substantial replica of his original plat, photographically reduced in size, with some additions drawn thereon, which was also put in evidence. The original plat in legible figures shows the courses and distances of his survey. He found the area of the lake, approximately within the meander lines of the original government survey, to be 680.875 acres, not including the area of the so-called Hoover’s Island as it was at the time of his survey. The area of the island is not shown. The part of the 680.875 acres which was under water he found to be 137 acres, lying in a narrow strip along the shore line of the east half of the perimeter of the lake bed. The water in the lake had diminished since Hall made his survey. The expanse of water at that time is shown in the plat herein set out. When Sayre made his survey and plat the upper end of the part of the lake bed under water terminated at about the center point of the north boundary line of Lot 7 in Section 29, and the lower end was near the east quarter section post of the section line between Sections 32 and 33. But a small tract, involved in this litigation, in the north part of Lots 6 and 7, was under water when Sayre
made his survey in September 1933. On the Sayre plat we find but one elevation marked, and that is at the water’s edge of the submerged portion on the east line of Government Lot 5 in the NEVt of the NW[4 of Section 33.
So far as the record shows, the first attention the State gave to this lake was about 1933, when Sayre made his survey. He testified that thereafter the Conservation Commission exercised control over the lake. He did not elaborate upon the nature or extent of that control. He also testified: “A ditch .has been constructed which runs from the lake to the river. I surveyed, designed and supervised the construction of the ditch under the direction of the commission. I think that was in 1937. Gates have been installed to keep the lake filled. * * The purpose of the ditch and gates which were installed in 1937 is to control the flow of water from the Missouri River into and out of Brown’s Lake, and also to hold water in, -in case Brown’s Lake or the river get low.”
There is no evidence of the width or depth or grade or capacity of the ditch constructed by the Conservation Commission between the basin of the lake and the Missouri River at the time of its construction or at the time of the trial in 1949. Neither is there any evidence of the dimensions of the gates constructed at the outlet, or of their capacity. Defendant testified that of the 158.15 acres which he claims there were about 60 acres not under water at the time of the trial. The ditch and gates were constructed to let water from the Missouri River into the lake, and to retain it, and “to keep the lake filled.” How much of the submersion of defendant’s land was due to the ditch and gates cannot be ascertained, but it is a fair assumption that to some extent they effected the object sought by the Commission. There is no evidence that plaintiff ever entered upon or took possession of any of the land except as it may have done so by flooding some of it with water by the said ditch and gates.
Plaintiff states seven propositions on wbieb it relies for a reversal. It argued no others. They are:
“1. Brown’s Lake is a navigable body of water. 2. Brown’s Lake with the soil beneath it passed to the State of Iowa upon its admission to the Union. 3. The legislature of the State * * * is without power to alienate or to make provision for the alienation of Brown’s Lake. 4. Title to Brown’s Lake could not be acquired by adverse possession. 5. Brown’s Lake was not taxable and no title could be gained to any part thereof by virtue of a tax deed. 6. The right to the waters and soil of Brown’s Lake having passed to the State of Iowa on its admission to the Union a subsequent patent thereto by the United States Government was ineffective to convey title therein. 7. The legislature has not intended to vest jurisdiction in the courts to cut off the title of the State to public bodies of water including Brown’s Lake.”
I. Conceding that some of these propositions may be abstractly correct, they have little, if any, application or pertinence under the record in this case, and taken singly or in combination they do not entitle plaintiff to a reversal of the District Court’s decree. This is true because they disregard or seek to evade the effect of conceded and controlling facts.' The most important and the determinative fact is the government resurvey of the large body of land which was encircled by the surrounding water of the bayou or lake, and was not surveyed in the original government survey of 1852. The resurvey was made under the authority and by the direction of the Department of the Interior and its subsidiary departments and representatives.' The facsimile of the plat of the survey included in this opinion has thereon this title and certificate:
“Plat Of Survey Op Hoover’s Island.
(Omitted From Original Survey in 1852). In Sections 28, 29, 32, 33, Twp. 87 N. R. 47 W. 5th P.M.
Iowa.
Department Op The Interior.
General Land Office Washington D. C. January 30, 1900
The above map of Hoover’s Island, in Secs. 28, 29, 32, 33 * # # is a correct plat of the survey thereof executed by
Einger Hermann, Commissioner and Ex Officio Surveyor General for Iowa.”
There can be no question of the power of the Department of the Interior to make this survey. “Congress is invested by the Federal Constitution with the power of disposing of, and making needful rules and regulations respecting, the public domain, Its power in this respect is without limitation * * *” 42 Am. Jur., Public Lands, section 10, 'page 792. “Provision has also been made for resurveys or retracements to mark the boundaries of lands undisposed of, and for resurveys or retracement of township lines.” Id. section 40, page 818. “Federal statutes provide for a United States Supervisor of Surveys and deputy surveyors, who carry out their prescribed functions in conjunction with, or under the regulations or instructions of, the Secretary of the Interior and the General Land Office; and a survey made by the proper officers of the United States, and confirmed by the Land Department, is not open to challenge by any collateral attack in the courts if it was within the jurisdiction of the Land Department, and it is presumed to be correct.” Id. section 40, page 819. “Under certain Federal statutes the Secretary of the Interior * * * has power to set aside a survey and order another to be made. And the Land Department has the right to resurvey its own lands at any time to ascertain the boundaries thereof, so long as it does not injure the rights of private owners outside the survey * * Id. section 41, page '820. “* * i* upon the discovery of the mistake it is within the power of the Land Department * *. * to deal with the area which was excluded from the survey, to cause it to be surveyed, and lawfully to dispose of it.” Id. section 43, page 822. “This depart ment [Land Department] is a special tribunal and is vested by statute with substantially exclusive jurisdiction to determine, in the first instance, all questions of fact respecting the disposition, acquisition, and control of the public lands, so long as the legal title thereto remains in the United States.” Id. section 57, page 835. “* * " and its decisions once reached on matters within the scope of its authority are unassailable except by direct attack.” Id. section 57, page 836. “In the absence of fraud, the decisions of the officers of the Land Department ® ® ® as to matters within their jurisdiction are final and conclusive, except as they may be reversed on appeal in that department. And this is the rule where, as is generally the case, the question is one of fact, as, for example, the geological nature of specified lands, or their topographical characteristics ® * *.” Id. section 59, pages 837, 838. “The Secretary of the Interior is the chief officer in control of public lands. The obligations of his oath of office oblige him to see that the law is carried out, and that none of the public domain is ivasted or disposed of to a party not entitled to it. He represents the government, which is a party in interest in every case involving the surveying and disposal of the public lands, and he may exercise such supervision by direct orders or by review on appeal from the decisions of local land officers.” Id. section 63, page 841. Many decisions of the courts of the United States and of many of the states are cited in the footnotes in support of the statements quoted above.
These rules and principles have been accepted and followed by this court. In Rood v. Wallace,
It is the duty of the Secretary of the Interior to see that “none of the public domain is wasted” by either fraud or gross mistake. The uniform holding of the courts with respect to the scope and finality of his department in these matters is thus expressed by our highest court through Mr. Justice Lamar, in Cragin v. Powell, supra,
“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 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 an elementary principle of our land law, is settled by such a mass of decisions of this court that its mere statement is sufficient.”
This is not a case where the action of the Land Department injured any littoral owner around the lake or conflicted with any prior disposal of government land. It was simply a conserving of the public domain and the opening of land suitable to settlement and cultivation to those who were already living on the land and waiting for the government survey and sale of the
Cases involving the government survey of unsurveyed land or corrected surveys because of errors of omission or commission on the part of government surveyors have often been before this court. There are few where the mistake has involved as large
an area as in this case. See Barringer v. Davis,
II. After the Hall survey the Government issued a patent to the land involved herein conveying it to James I. Parker, who had apparently “squatted” on the land to await its survey and opening for entry and purchase. The only challenge by plaintiff to this deed is in the “Conclusion” of its brief and argument, where it states that “the area was not subject to resurvey, nor did the United States Government have the power to make a further grant thereof.” We have answered this contention in the preceding division. These objections are not available to plaintiff. As the court said, in Meeker v. Kautz,
Anent the argument that the United States had no right to survey the land or to issue patent granting it to Parker, it may be noted that the Congressional Act of March 3, 1845, 5 Stat. at L. 742, section 7, admitting Iowa as a State provided that it “shall never interfere with the primary disposal of the public lands lying within [its borders],” and that the General Assembly, by an act of January 15, 1849, accepted the condition that it would not so interfere, “nor with any regulations Congress may find necessary for securing the title in such soil to the bona, fide purchasers thereof.” Laws of Iowa, 1848-1849, chapter 91, section 2.
III. Divisions I and II hereof dispose of all of plaintiff’s propositions for reversal. Plaintiff stresses considerably its proposition that Brown’s Lake is now, and was at all times, a navigable' body of water. If plaintiff
had
a cause of
action, as alleged, the point contended for would be of no materiality, as it could maintain its action, the lake having been meandered, even though it was not navigable in' any sense of the word. In Iowa the legal title to the beds of all navigable lakes to the high-water mark is in the state in trust for the use and benefit of the public. State ex rel. Cosson v. Thomas,
In State v. Livingston, supra,
“In State v. Jones,
The state may take such action as may seem necessary to protect and preserve such a lake, and while it is not necessary to pass upon the question, and we do not, it is a pertinent inquiry whether the state could ever quiet title to such a lake.
The district court found the lake was not navigable. It appears to be a correct conclusion, although there is no direct evidence in the record upon the matter. It is not neeessarj^ to decide it. Plaintiff argues that the lake was navigable because it was meandered. This is a matter for consideration but it is not decisive. Carr v. Moore, supra,
IV. There is no merit to plaintiff’s proposition that the land in controversy was not taxable. It became subject to taxation as soon as patent was issued by the Government to James I. Parker. It was platted for taxation a few years after the Hall survey. It was assessed for taxation, and taxes were levied thereafter. It was sold for nonpayment of the taxes for the years 1931, 1932 and 1933, and tax deed was issued. No attack is made upon the tax title other than that the land could not be taxed because it was State property. The title which defendant holds under the tax deed is a new and independent title.
Y. Plaintiff’s proposition that defendant could not acquire title by adverse possession has no application. Defendant claims no title by adverse possession. Neither do we find any pertinence in proposition 3, or 7.
YI. It is very questionable whether plaintiff claims anything under the decree of January 15, 1934. It alleged the fact of the decree and that by virtue of it title to the land was quieted in it. The petition does not expressly allege that the decree is res judicata or a prior adjudication of the issue in this case. It could have been pleaded as a defense to defendant’s suit which terminated in the decree of July 19, 1946, but the State did not appear in that case. Res judicata must be affirmatively
VII. The defendant is in possession of the land. It is elementary that one seeking to dispossess an occupant of land or to quiet title in himself must recover on the strength of his own title and not on the weakness of that of his adversary. Rood v. Wallace, supra,
VIII. The issues in defendant’s cross-petition had been adjudicated in the decree of July 19, 1946, and those issues and that decree were re-established and confirmed in this case.
The decree of the district court in dismissing the petition of plaintiff, and in rendering and entering decree on the cross-petition of defendant, Harvey E. Nichols, is — Affirmed.