Grand Rapids Co v. Butler

• Decision Date: 03 June 1895
• Docket Number: No. 198,198
• Citation: 159 U.S. 87,40 L.Ed. 85,15 S.Ct. 991
• Parties: GRAND RAPIDS & I. R. CO. et al. v. BUTLER
• Court: U.S. Supreme Court

159 U.S. 87

15 S.Ct. 991

40 L.Ed. 85

GRAND RAPIDS & I. R. CO. et al.

v BUTLER.

No. 198.

June 3, 1895.

T. J. O'Brien, for plaintiffs in error.

R. W. Butterfield and W. F. Keeney, for defendant in error.

Mr. Chief Justice FULLER delivered the opinion of the court.

The fractional N. 1/2 of the S. E. 1/4 of section 25, township 7 N., range 12 W., is located on the east bank of Grand river; and early in 1831 that part of the town lying east of the river was surveyed an subdivided, and the east bank of the river was meandered and surveyed. In 1837 the west bank of the river was meandered and surveyed, as were also four islands in the stream, designated as Islands Nos. 1, 2, 3, and 4, and that part of the town lying west of the river was surveyed and subdivided.

The N. fractional 1/2 of the S. E. 1/4 of section 25 was entered by Lyon and Hastings September 25, 1832, and patent therefor issued to them November 5, 1833. Butler derived title under Lyon and Hastings, and claimed the land in dispute by virtue of riparian ownership, as taking, under the laws of Michigan, the bed of the stream to the thread thereof.

In 1855 a piece of ground in the river lying opposite land of which Butler's formed a part was surveyed, and marked by the deputy surveyor, 'Island No. 5 in Grand River.' This survey purported to be made in pursuance of instructions given May 24, 1854, by the surveyor general for Ohio, Indiana, and Michigan, whereby the deputy was authorized to survey the islands in certain lakes and in Grand river, Mich., and was made in the third quarter of 1855. The verification by the deputy was in February, 1856; and by the chainmen, November 22, 1856.

In 1871 the Grand Rapids & Indiana Railroad Company procured from the general land office a patent which, with many thousand acres of land, covered island No. 5, in Grand river, containing 2.56 acres; but this patent was not recorded until August 9, 1887, and on September 9th, following, this bill was filed.

Complainant put himself upon these two propositions: 'First, at the time of the survey and sale of the lands on the bank the spot in question was not an island, in fact, and was not treated by the authorities as such; second, whatever its character, inasmuch as it was not meandered or set apart as an island, it passed to the riparian proprietor, as appurtenant to the grant of the lands on the bank.'

The supreme court of Michigan said: 'A large mass of testimony was taken as to the character of this so-called island at the time of the original surveys, and for some years subsequent; the complainant's testimony tending to show that it was at first a low sand bar, covered a good part of the year with water, and the defendant's testimony tending to show that it was then a well-defined island. It is immaterial to determine what the facts are as to the condition of this land in those early days, for, in our judgment, it is of no consequence whether it was what might be termed 'an island' or a 'sand bar,' or a 'piece of low wet ground.' The law is the same in either case.'

The court called attention to the surveys of 1831 and 1837, in neither of which was any island meandered or surveyed on the site of island No. 5, and to the fact that in the survey of 1837 the acreage of the four islands and of the mainland was given, and observed: 'In surveying island No. 3 the surveyor began at the lower end of the island. The eleventh course took him 'to maple on the head of island.' After taking his next course from the maple, he made the following record: 'Channel between this and low willow isle 75 lks. wide and 3 ft. deep opposite ft. of willow isle on left, 250 of low wet ground on left to channel.' This 'low willow isle' is evidently what is now known as 'Island No. 5,' as changed by the action of the water.'

It was further stated: 'The channel between the islands and the east bank was from seventy-five to one hundred feet wide. The channel between the islands and the west bank was several times wider. The depth of the water in each was about the same. The middle thread of the river was therefore west of the islands. About the year 1836 steamboats were placed on the river, and docks were erected on the east bank, nearly opposite island No. 1. The principal business by boat was with the east side, where the city of Grand Rapids was situated. Steamboats also ran up the west channel to a steamboat warehouse on the west side of the river. About the year 1870 the east chn nel opposite islands Nos. 1 and 2 was filled up, and the city constructed a sewer into and through that channel. The upper part of this channel was gradually filled, mainly by the owners of land upon the east bank. By these fillings this island has for some time been connected with, and become a part of, the mainland. The channel has been dredged out east of island No. 3, and a steamboat slip and landing constructed, the upper end of which is a considerable distance below island No. 5.'

The court also found that Butler's possession of the premises was sufficient to maintain his suit, and some other matters were considered, not necessary to be adverted to.

The court held that the well-recognized rule in Michigan was that a grantee of land bounded in the deed of conveyance by a stream takes title to the land under the water to the thread of the stream, in the absence of an express reservation; that reservation cannot be implied; that when the government has surveyed its lands along the bank of a river, and has sold and conveyed such lands by government subdivisions, its patent conveys the title to all islands lying between the meander line and the middle thread of the river, unless previous to such patent it has serveyed such islands as governmental subdivisions, or expressly reserves them when not surveyed; that the grant to Lyon and Hastings was made under the survey of 1831, by which, as the court found, 'both banks of Grand river were meandered, and by which the middle thread of the river was fixed west of this island,' and that the grant clearly vested in them title to the land in controversy, of which no subsequent survey by the government could deprive them; that there was no force in the objection that this was equivalent to a proceeding to cancel the patent, since, in this or any similar action, what was involved was the establishment of the fact that the title had passed by a former grant, and, therefore, that the government had no title to convey, in which cases courts protect purchasers from subsequent surveys.

The errors assigned are grouped by counsel, and stated thus: That the point that the land in question, even though an island, passed to Lyon and Hastings, under their patent, if not reserved, was not properly before the court, under the pleadings; that 'the court erred in holding as matter of fact, on this record, that the island was not...