George Whitaker v. Thomas Bride

• Decision Date: 10 April 1905
• Docket Number: No. 135,135
• Citation: 197 U.S. 510,25 S.Ct. 530,49 L.Ed. 857
• Parties: GEORGE S. WHITAKER and Mary I. Whitaker, Plffs. in Err. , v. THOMAS McBRIDE and William Killgore
• Court: U.S. Supreme Court

197 U.S. 510

25 S.Ct. 530

49 L.Ed. 857

GEORGE S. WHITAKER and Mary I. Whitaker, Plffs. in Err.,

v THOMAS McBRIDE and William Killgore.

No. 135.

Submitted January 18, 1905.

Decided April 10, 1905.

This was an action commenced on June 27, 1898, in the district court of Buffalo county, Nebraska, and terminated by a decision of the supreme court of the state. 65 Neb. 137, 90 N. W. 966. The facts found by the district court are that McBride and Killgore were respectively the owners and in possession of tracts of land bordering on the Platte river, one on the north and the other on the south side thereof. Between these two tracts, and in the main channel of the Platte river, is an island, containing about 22 acres. This island had been in the possession of McBride and Killgore for more than ten years prior to the bringing of the action, but during that time they were contending as to how much of the land each was entitled to. It had never been surveyed by the government.

It appeared in evidence that Whitaker, in 1897, settled on the island, claiming the right to enter the same as a homestead; that application to the Land Department of the government to have the island surveyed was, in 1897, refused, the Department declining to take any action in the matter. These lands were a part of the Fort Kearney Military Reservation, which was surveyed and sold under a special act of Congress, dated July 21, 1876 (19 Stat. at L. 94, chap. 220), the patent to McBride, who had entered his tract as a homestead, bearing date March 28, 1885. There was testimony tending to show that the island was at the time of the survey of the reservation frequently covered with water, and that since then—perhaps owing to the construction of bridges and dykes overflows had been less frequent and the land better adapted to occupation and cultivation. The decree directed by the supreme court was adverse to Whitaker, and quieted the title to McBride and Killgore to the island, giving to each one half.

Messrs. Francis G. Hamer and E. E. Brown for plaintiffs in error.

Messrs. M. P. Kinkaid, E. C. Calkins, and H. M. Sinclair for defendants in error.

Mr. Justice Brewer delivered the opinion of the court:

The decision of the supreme court of the state was that the owner of lands bordering on a river owns to the center of the channel, and takes title to any small bodies of land on his side of the channel that have not been surveyed or sold by the government. It is the settled rule that the question of the title of a riparian owner is one of local law. In Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838, the matter was discussed at some length, the authorities cited, and the conclusion thus stated by Mr. Justice Bradley, delivering the opinion of the court (p. 384, L. ed. p. 434, Sup. Ct. Rep. p. 813):

'In our judgment the grants of the government for lands bounded on streams and other waters, without any reservation or restriction of terms, are to be construed as to their effect according to the law of the state in which the lands lie.'

See also Shively v. Bowlby, 152 U. S. 45, 38 L. ed. 347, 14 Sup. Ct. Rep. 548; Lowndes v. Huntington, 153 U. S. 19, 38 L. ed. 618, 14 Sup. Ct. Rep. 758; Grand Rapids & I. R. Co. v. Butler, 159 U. S. 87, 92, 40 L. ed. 85, 87, 15 Sup. Ct. Rep. 991; St. Anthony Falls Water Power Co. v. St. Paul Water Comrs. 168 U. S. 349, 42 L. ed. 497, 18 Sup. Ct. Rep. 157; Kean v. Calumet Canal & Improv. Co. 190 U. S. 452, 47 L. ed. 1134, 23 Sup. Ct. Rep. 651; Hardin v. Shedd, 190 U. S. 508, 47 L. ed. 1156, 23 Sup. Ct. Rep. 685.

If there were no island in this case it would not, under these authorities, be questioned that the title of the riparian owners extended to the center of the channel. How far does the fact that there is this unsurveyed island in the river abridge the scope of the rule? In seeking an answer to this question these facts must be borne in mind. The official surveys made by the government are not open to collateral attack in an action at law between private parties. Stoneroad v. Stoneroad, 158 U. S. 240, 39 L. ed. 966, 15 Sup. Ct. Rep. 822; Russell v. Maxwell Land Grant Co. 158 U. S. 253, 39 L. ed. 971, 15 Sup. Ct. Rep. 827; Horne v. Smith, 159 U. S. 40, 40 L. ed. 68, 15 Sup. Ct. Rep. 988. A meander line is not a line of boundary, but one designed to point out the sinuosity of the bank or shore, and a means of ascertaining the quantity of land in the fraction which is to be paid for by the purchaser. St. Paul & P. R. Co. v. Schurmeir, 7 Wall. 272, 19 L. ed. 74; Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838; Horne v. Smith, 159 U. S. 40, 40 L. ed. 68, 15 Sup. Ct. Rep. 988. The Fort Kearney reservation was a single body of land, whose survey was directed by a special act of Congress, and there is nothing to show that, in making the survey, there was any intentional wrong on the part of the surveyors. Evidently the survey of the entire tract was completed before the lands, or any part of them, were offered for sale. According to statements in the brief of counsel for plaintiff in error as well as in the opinion of the Secretary of the Interior in Re Christensen, 25 Land. Dec. 413 there were several islands in the Platte river within the reservation not surveyed. The Secretary says that it does not appear why the lines of survey were not extended over these islands, but in the brief of counsel, as well as in the opinion of the supreme court it is stated that the instructions issued by the Land Department to the surveyors were to survey all islands of 21 acres and upwards. The reason of the Department, or of the surveyors (which ever may have been responsible for the omission to survey these small islands), for these omissions is not disclosed. Possibly they may have been regarded as having no stability as tracts of land, but as mere sandbars, which are frequently found in western waters, and are of temporary duration, existing to-day and gone to-morrow. Be that as it may, there is nothing to indicate any fraud or mistake on the part of the surveyors. Doubtless this island of about 22 acres was regarded as coming within their instructions, and very likely at the time of the survey did not contain even 21 acres. Further, an application for a survey of this island was refused, and this refusal was repeated once or twice. The Secretary of the Interior based his action on the decision of ...