State of Indiana v. Milk

• Decision Date: 18 April 1882
• Citation: 11 F. 389
• Parties: STATE OF INDIANA v. MILK and others. [1]
• Court: United States Circuit Court, District of Indiana

11 F. 389

STATE OF INDIANA v. MILK and others. ^[1]

United States Circuit Court, D. Indiana.

April 18, 1882

D. P Baldwin, Atty. Gen., and Julian & Julian, for the State.

Baker Hord & Hendricks, for defendants.

GRESHAM D.J.

The state sues to recover possession of 2,868 acres of land, once part of the bed of Beaver lake, in Newton county. The defendants plead specially the facts upon which they claim title to the premises in dispute:

All the lands surrounding the lake were surveyed by the United States in 1835, but the lake was never surveyed nor the bed offered for sale. A meander line was run by the surveyors around the lake, which line and the lake are represented on the government surveys and plats. All the lots or government subdivisions surrounding the lake were ceded to the state by what is known as the swamp-land act of 1850; and patents were subsequently issued by the United States to the state for these lands, by their designations on the original maps and surveys. The general assembly of Indiana passed an act approved March 9, 1852, to regulate the sale of the swamp lands donated by the United States to the state, and to provide for draining and reclaiming the same, as required by the conditions of the grant. The lake, at the time of the grant by the United States, and long prior thereto, was a shallow, non-navigable, fresh-water pond, containing 14,000 acres of land, with no outlet, 40 feet above the Kankakee river, and between four and five miles from it.

After the passage of the last-named act, and in pursuance of it the state, by its proper officer, surveyed and located a ditch from the lake to the river for the purpose of draining the lake and the lands surrounding it; and after the location of this ditch, but before its construction, the state sold and patented to John P. Dunn part of the lots or tracts abutting on the lake, and to John P. Dunn and A. B. Condit, jointly, the remainder of all such lots. All these lots Dunn and Condit, and their wives, afterwards conveyed in fee, by proper deeds, to Michael G. Bright, who, on the fifth of April, 1857, made and acknowledged a map or plat of the surrounding lots or tracts of land, and of the bed of the lake, whereby he subdivided the bed and the surrounding tracts into 40-acre lots, numbering them consecutively from 1 to 427. These lots were formed by extending the right lines east and west and north and south from the outward lines of the government surveys, such extensions being made just as the government would have made them, but for the obstruction of the waters of the lake, and by dividing these lines so extended by right lines drawn from points equidistant from corners formed by due intersection. Bright recited in this plat that he had acquired title in fee to all the abutting tracts from Dunn and Condit, and as riparian proprietor was entitled to and the owner in fee of the entire bed of the lake; that the lake had already been partially drained and in time the bed would be reclaimed and fit for cultivation, and that he reserved to himself and his grantees the right to maintain the ditches and drains, and, if necessary, to extend and otherwise enlarge them. After this plat had been duly recorded in the county in which the lake was situated, Bright and his wife, on the nineteenth of November, 1860, by their deed of that date, conveyed in fee to Aquilla Jones 197 of the 40-acre lots, by their designated odd numbers on the plat, these lots containing in the aggregate 8,880 acres; and one month later Jones and his wife, by their deed, conveyed in fee the same lots to the state, describing them by their designated odd numbers on the plat. These deeds were both properly recorded.

An act was passed by the general assembly of Indiana, on the twelfth of December, 1860, and approved the same day, 'to provide for the sale of certain lands belonging to the state of Indiana, in the counties of Jasper and Newton, and to give protection to actual settlers thereon. ' Section 1 of this act reads as follows: 'That the lands, belonging to the state of Indiana, in the counties of Jasper and Newton, acquired by conveyance from Michael G. Bright, dated November 19, 1860, and of Aquilla Jones, December 31, 1860, shall be offered for sale at public auction, by the auditor and treasurer of the county in which said lands may be situated, at the door of the court-house in said counties, on a day to be fixed by said auditor and treasurer, not sooner than six nor later than eight months after the passage of this act.'

After the sale to Dunn and Condit, and before their sale to Bright, the state constructed the ditch previously located, from the margin of the lake to the river, wide enough and barely deep enough to afford a current from the lake to the river, and the action of the water deepened the ditch until the lake was so far drained as to render 2,000 acres of the bed fit for pasture lands, at the time Bright made and acknowledged his plat.

After the passage of the last-named act, and before the eleventh of January, 1873, the state sold and conveyed to divers persons, for sums amounting in the aggregate to more than $10,000, the lands conveyed by Bright to Jones, and by the latter to the state, such conveyances all being of designated odd numbers on Bright's plat, and by reference to it; and during the same period Bright and his wife sold and conveyed to divers persons the remaining even-numbered lots, describing them in like manner, by reference to his plat; the state and Bright both selling the latter's riparian title to the lots in the bed of the lake. On the last-named date, January 11, 1873, by an act of congress approved on that day, the United States ceded to the state the bed of Beaver lake, and the state now claims title to the lands in suit under that act. While the state was constructing the main ditch from the bed to the river, Dunn and Condit were engaged in constructing lateral ditches into and through the bed of the lake. This work was continued by Dunn and Condit until they sold to Bright, and he and his grantees of even-numbered lots, and the state's grantees of odd-numbered lots, prosecuted the work of drainage, extending the main ditch three miles out into the lake, and the lateral ditches until they aggregated in length more than 30 miles. This was all done at the expense of Dunn and Condit, and Bright and his grantees, and the state's grantees, and it involved an outlay five times greater than the outlay of the state in constructing the main ditch from the margin of the lake to the river. Since the year 1860, and up to the present time, Bright and his grantees of even-numbered lots have been required to pay state and county taxes upon the lots in the bed of the lake, held by them as aforesaid, amounting to thousands of dollars.

Before the commencement of this suit the defendant Lemuel Milk acquired title to the lots in dispute, by deed in fee, from Bright and wife, and conveyed the same title, through a trustee, to his wife and co-defendant, Jane A. Milk. The ditching done by Dunn and Condit, and Bright and his grantees, and the state's grantees, before the cession of the United States, in 1873, so far drained the lake that 4,000 acres of the bed became fit for cultivation, and the residue, except 600 acres, became fit for pasture lands.

At the same time that Lemuel Milk made his purchase of the even-numbered lots in dispute, he bought a like number of odd-numbered lots in the bed of the lake from the state, some of the latter lots adjoining some of the even-numbered lots so purchased from Bright.

The first question raised by the demurrer to the special answer is, did the state acquire title to the bed of Beaver lake by virtue of the swamp-land act of 1850?

It is asserted by the state that as this was a natural, non-navigable, and unsurveyed lake no title to its bed passed to the state by virtue of the cession of 1850, and that the title remained in the United States until it was conveyed to the state by the congressional act of January 13, 1873.

It is contended on the other hand, for the defendants, that the common law which limits the owner of land bordering on a natural, non-navigable lake or fresh water pond to the outer margin, is administered by the federal courts only as a part of the law of the states where it has been adopted, and that the interpretation of the swamp-land grant is a federal question, to be decided by federal statutes and rulings, if any there be.

Section 9 of an act of congress passed May 18, 1796, relating to the north-west territory, reads thus:

'That all navigable rivers within the territory, to be disposed of by virtue of this act, shall be deemed to be and remain public highways, and that in all cases where the opposite banks of any stream not navigable shall belong to different persons, the stream and the bed thereof shall become common to both.'

The spirit and reason of this statute, it is urged, apply with equal force to ponds and non-navigable lakes of the size and character of Beaver lake; and, if this is not true, that the statute furnishes an analogy for a rule which may be fairly deduced, applicable to this case.

In Railroad Co. v. Schurmeir, 7 Wall. 272, this section was interpreted to mean that instead of the owners of opposite banks of a non-navigable stream being tenants in common of the bed, each held in severalty to the center of the stream.

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