190 U.S. 452 (1903), 8, Kean v. Calumet Canal and Improvement Company

Docket Nº:No. 8
Citation:190 U.S. 452, 23 S.Ct. 651, 47 L.Ed. 1134
Party Name:Kean v. Calumet Canal and Improvement Company
Case Date:May 04, 1903
Court:United States Supreme Court

Page 452

190 U.S. 452 (1903)

23 S.Ct. 651, 47 L.Ed. 1134

Kean

v.

Calumet Canal and Improvement Company

No. 8

United States Supreme Court

May 4, 1903

Argued January 9, 12, 1903

ERROR TO THE SUPREME COURT

OF THE STATE OF INDIANA

Syllabus

The common law, as understood by this Court, and the local law of Indiana as to the effect of conveyances of land bordering on nonnavigable waters are the same.

Where the State of Indiana acquired land from the United States under the Swamp Land Act of September 28, 1850, the patent describing the whole of certain fractional sections enumerated and bordering on nonnavigable water between Indiana and Illinois, it acquired all the land under water up to the line of the state, such being the local law of Indiana. The making of a meander line has no certain significance, and does not necessarily import that the tract on the other side of it is not surveyed or will not pass by a conveyance of the upland shown by the plat to border on the lake. Hardin v. Jordan, 140 U.S. 371; Mitchell v. Smale, 140 U.S. 406, followed.

The case is stated in the opinion of the Court.

Page 458

HOLMES, J., lead opinion

MR. JUSTICE HOLMES delivered the opinion of the Court.

This is a proceeding to quiet title, brought by the Calumet Canal & Improvement Company in a court of the State of Indiana. The company got judgment, which was affirmed by the supreme court of the state, 150 Ind. 699, and the case is brought here by writ of error. The land in question is land bordering on and extending under certain nonnavigable water up to the state line, the Illinois side of which was the subject of the decisions in Hardin v. Jordan, 140 U.S. 371, and Mitchell v. Smale, 140 U.S. 406. But the facts in this case are somewhat different. The Calumet company claims title through mesne conveyances from the State of Indiana. The State of Indiana got its title under the Swamp Land Act, September 28, 1850, c. 84, 9 Stat. 520, Rev.Stat. §§ 2479 et seq., and patents

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of the United States, dated 1853, purporting to be in pursuance of that act and referring to the official plat of survey which was made in 1834. The patent set forth describes "the whole of fractional sections" enumerated and bordering on the water, in which sections lies the disputed land. The state afterwards conveyed by the same description. It is not denied that the company got the land above the waterline, as shown in the plat referred to, but it is denied that it got more. The water has been receding and drying up, so that the question is important. The defendants set up a later survey in 1875 of [23 S.Ct. 652] the land which was covered by water in 1834, and is covered, to a less extent, still, and patents from the United States in pursuance of the same, for tracts below the original waterline. They deny that the state ever owned this land, or, if it did, that it conveyed it, and they allege the later survey to be conclusive.

On general principles of conveyancing, the state would have acquired the land in controversy here by a conveyance from the United States describing the upland according to the survey, because the local law of Indiana, and the common law as understood by this Court, are the same so far as this case is concerned. Stoner v. Rice, 121 Ind. 51; Hardin v. Jordan, 140 U.S. 371. The case is stronger if the land passed under the Swamp Land Act, as has been held by the state court with regard to this and similar patents. Mason v. Calumet Canal & Improvement Co., 150 Ind. 699; Kean v. Roby, 145 Ind. 221; Tolleston Club v. Clough, 146 Ind. 93; Tolleston Club v. State, 141 Ind.197. See Mitchell v. Smale, 140 U.S. 406, 414.

The making of a meander line has no certain significance. French-Glenn Live Stock Co. v. Springer, 185 U.S. 47, 52. It does not necessarily import that the tract on the other side of it is not surveyed, or will not pass by a conveyance of the upland shown by the plat to border on the lake. It is not always a boundary. Railroad Co. v. Schurmeir, 7 Wall. 272; Hardin v. Jordan, 140 U.S. 371, 380; Mitchell v. Smale, 140 U.S. 406, 414; Horne v. Smith, 159 U.S. 40, 43; Grand Rapids & Indiana Railroad Co. v. Butler, 159 U.S. 87, 93. In this case, its immediate import was only to indicate the contour of the lake. It would

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seem, to be sure, that the settled understanding of the Land Department has been that, in cases like the present, the meander line marked the limit of the grant. But probably the cases are comparatively rare in which that understanding was acted on by an attempt subsequently to convey the land under water on the further side of the line at dates before the transactions with which we have to deal. The title to such land was not considered of much importance in the early days, or worth the trouble of an independent survey. See Newson v. Pryor, 7 Wheat. 7, 11. The United States was more anxious for settlers than for revenue from that source. It is not necessary to consider how we should decide the case with our present light if the question were a new one. It is not new. For twelve years, the decisions in Hardin v. Jordan and Mitchell v. Smale have stood as authoritative declarations of the law. Probably in most cases the statute of limitations has cured the defects of title which those cases may have shown. Meantime many titles must have passed on the faith of those decisions. The United States can meet them by the form of its conveyances. It seems to us that it would be likely to do more harm than good to allow them to be called in question now.

It is said that the land under water was not embraced in the survey of 1834. It would seem from the plat and the field notes that the sections and dividing lines were clearly marked off and posts set. The case is similar to Kean v. Roby, 145 Ind. 221, where the survey was pronounced sufficient. No difficulty was felt on the ground that the survey did not cover the submerged land in Hardin v. Jordan, 140 U.S. 371. But furthermore, the land was selected as "swamp and overflowed lands" by the state. It not appearing otherwise, the selection must be presumed to have included the land overflowed, and if so, it was confirmed to the state by the Act of March 3, 1857, c. 117, 11 Stat. 251. The confirmation encounters none of the difficulties of cases like Stoneroad v. Stoneroad, 158 U.S. 240. The land surrounding the water, at least, was surveyed, so that the identification of the submerged portion was absolute. We are of opinion that the State of Indiana got a title to the whole land in dispute.

Page 461

If the State of Indiana got a title, it gave one. There is not much controversy on this point. We should follow the decision of the state court in this case so far as this question is concerned, if there was no other evidence of the state law. But the law of Indiana is shown, by the other cases cited above, to be clear on this point.

The resurvey by the United States in 1874 does not affect the Calumet company's rights. As the United States already had conveyed the lands, it had no jurisdiction to intermeddle with them in the form of a second survey. Hardin v. Jordan, 140 U.S. 371, 400; Grand Rapids & Indiana Railroad Co. v. Butler, 159 U.S. 87, 94-95; Railroad Co. v. Schurmeir, 7 Wall. 272, 289.

Of course, we shall not undertake to revise the finding of the state courts that the statute of limitations had not run in favor of the plaintiffs in error, and that, if anyone is to profit by it, the Calumet company would prevail.

Judgment affirmed.

WHITE, J., dissenting

MR. JUSTICE WHITE, with whom concurs MR. JUSTICE McKENNA, dissenting:

The importance of the question which this cause involves, and the far-reaching and injurious consequences which, in my [23 S.Ct. 653] opinion, must arise from the continued application of what seems to me to be the erroneous theories upon which it is now decided, not only constrain me to dissent, but cause me to state fully the reasons by which I am controlled.

The controversy is between opposing claimants to lands once a part of the beds of certain nonnavigable bodies of waters, styled lakes and which shall be hereafter referred to by such designation. Both parties asserted title under patents of the United States.

In 1834, surveys were made by the United States of townships 37 north, in ranges 9 and 10 west, second principal meridian, lying in Lake County, in the extreme northwestern portion of the State of Indiana. Township 37 in range 9 was bounded on the west by township 37 in range 10, and the latter was bounded on the west by the State of Illinois. From

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the eastern boundary of township 37 in range 10 there was less than a mile intervening to the Illinois boundary on the west. In consequence, the sections or fractional sections appearing on the plat of survey of that township were only the extreme easterly tier of sections, being those numbered 1, 12, 13, 24, 25, and 36. A copy of a portion of the government plat of survey of the townships named, in which are embraced the lands whose title is in dispute, is here inserted for convenience of reference.

The easterly of the two bodies of water, lying partly in both townships, is known as Lake George, or Mud Lake. The westerly body is called Wolf Lake. As shown by the plat, the lines of survey were not actually run across the water of the lakes, and, consequently, no attempt was made to subdivide the lands in the then beds of the lakes into legal subdivisions. The lines of survey were in fact run around the rim of each lake, and the fractional lots resulting from the meander line were given numbers, as was customary in such cases.

The land about the margin of the lakes was very flat, and the average depth of water at the time of the surveys was conjectured to be about five or six feet.

None of the fractional lots abutting on the two lakes in the townships in question had been disposed of by the...

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