57 F. 803 (6th Cir. 1893), 103, Scranton v. Wheeler

Docket Nº:103.
Citation:57 F. 803
Case Date:September 05, 1893
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 803

57 F. 803 (6th Cir. 1893)




No. 103.

United States Court of Appeals, Sixth Circuit.

September 5, 1893

Page 804

Statement by LURTON, Circuit Judge:

This suit was brought in ejectment in the circuit court for the county of Chippewa, and was removed by the defendant to the United States circuit court for the western district of Michigan, southern division, where it was tried in September, 1892. The premises described in the declaration, and sought to be recovered, are 'an undivided one-half interest in private land claim number three, Whelpley's survey, in the village of Sault Ste. Marie, Mich., including therein that portion of the land beneath the waters of St. Mary's river, from the river bank on said lot to the thread of the stream of said river, which forms a part of said lot, and all riparian rights belonging and attached thereto, and being a part thereof.'

The real controversy is not over any of the dry land embraced within the lines of private claim No. 3, as defined by the survey thereof, but concerns the riparian rights appurtenant thereto, which, it is claimed, have been invaded by the construction by the United States of one of the piers which form a part of the St. Mary's Falls ship canal. The defendant in error has no personal interest in the controversy, and is in possession of the pier in question simply as an employe of the United States, being the superintendent, and in charge, of the canal. For many years prior to 1850, the lands, in part at least, at the locality in question, were occupied by parties who had no title thereto, but claimed equitable rights by virtue of long-continued possession. Repeated attempts were made to obtain recognition of their rights from congress, but prior to said date they were unavailing. In 1850, however, congress passed an act (9 Stat. 469) which provided that the register and receiver of the land office at Sault Ste. Marie should be empowered and authorized to examine and report upon claims to lots at Sault Ste. Marie, according to the provisions of the act, and pursuant to instructions of the commissioner of the general land office. The second section of the act provided that: 'The said commissioner shall cause the register and receiver to be furnished with a map, on a large scale, of the lines of the public surveys at the Sault Ste. Marie, and it shall be the duty of the secretary of war to direct the proper military officer, on application of the register andreceiver,

Page 805

to designate or cause to be designated, upon the map aforesaid, the position and extent of lots necessary for military purposes, as also the position and the extent of any other lot, or lots, which may be required for other public purposes, and also the position and extent of the Indian agency tract, and of the Indian reserve. ' Section 7 of the act provides that, on the completion of certain preliminary maps and abstracts by the land officers, the surveyor general at Detroit should dispatch a skillful deputy to the Sault Ste. Marie, and 'that he shall proceed forthwith to lay off and survey the village of Sault Ste. Marie into town lots, streets, avenues, public squares, out-lots, having regard to the lots and streets already actually surveyed, existing or established, and having regard also to the existing limits and extent of lots covered by the claims which shall have been adjudicated by the register and receiver; and after such surveys shall have been completed, the aforesaid deputy shall prepare a plat, exhibiting, in connection with the lines of the public surveys, the exterior lines of the whole village, also the squares, individual lots, and public lots, and also the out-lots, designating the lots reserved for military or other purposes, according to the extent and limits of the same, as fixed by the proper military officers,' etc.

This survey was made by Thomas Whelpley in 1855, and by it the land in controversy is located and described as 'Private Land Claim Number Three.' The plat and survey were approved in September, 1855, as recited in the patent of the land made by the United States in 1874. The pier, as originally built, crossed a part of the riparian frontage of private claim No. 3. The field notes of the survey made by Thomas Whelpley show that private claim No. 3 was described by metes and bounds, and that one boundary was 'along the right bank of Ste. Marie river. ' This claim was patented by the United States to Samuel Peck and the heirs of Franklin Newcomb, October 6, 1874, and was described by reference to said survey. This grant was in these words and figures:

'The United States of America: To all to whom these presents shall come--Greeting: Whereas, under the provisions of the act of congress approved the 26th day of September, 1850, entitled 'An act providing for the examination and settlement of claims for land at the Sault Ste. Marie, in Michigan,' the claim of Samuel Peck and the heirs of Franklin Newcomb has been confirmed to a tract or parcel of land designated on the connected plat of survey, approved under the date of September 4th, 1855, by the surveyor general at Detroit, made pursuant to the act aforesaid, as lot number three, containing nineteen acres and forty-five one-hundredths of an acre, in section one, in township forty-seven north, of range one west, and in section six, in township forty-seven north, of range one east, in the district of lands subject to sale at Marquette, formerly Sault Ste. Marie, in the state of Michigan. And whereas, there has been deposited in the general land office of the United States a certificate, No. 111, of the register and receiver at Marquette, Michigan, whereby it appears that payment has been made in full, according to law, of the amount of assessment on said claims: Now know ye: That the United States of America, in consideration of the premises, and in conformity to the provisions of the act of congress aforesaid, have given and granted, and by these presents do give and grant, unto the said Samuel Peck and heirs of Franklin Newcomb, and to their heirs, the tract or parcel of land above described, to have and to hold the same, together with all the rights, privileges, and immunities and appurtenances of whatever nature thereunder belonging, unto the said Samuel Peck and heirs of Franklin Newcomb, and to their heirs and assigns, forever. In testimony whereof, I, Ulysses S. Grant, president of the United States of America, have caused these letters to be made patent, and the seal of the general land office to be hereunto affixed. (Seal.)

'Given under my hand, at the city of Washington, the sixth day of October, in the year of our Lord one thousand eight hundred and seventy-four, and of the Independence of the United States the ninty-ninth.

'By the president.

U. S. Grant.

'By S.D. Williams, Secretary.

'L. K. Lippincott, Recorder of the General Land Office.'

no. 103

Page 806

By an act of congress approved August 26, 1852, (10 Stat. 35,) there was granted to the state of Michigan a strip of land 400 feet in width through the military reservation at Sault Ste. Marie, to be used for the construction of a ship canal at that point, and by the same act 750,000 acres of land were granted to the state to aid in its construction. The act provided that the selection and location of the site should be subject to the approval of the secretary of war. The site selected under the act was so approved, in 1853, by Hon. Jefferson Davis, then secretary of war. The canal was begun in 1853, and completed, as originally constructed, in 1855. The river in front of private claim No. 3 was navigable in its natural state, but immediately above were the rapids and falls, to avoid which the canal was built. This river, with its connecting waters, forms a very important highway for interstate and international commerce.

By act of congress of August 14, 1876, (19 Stat. 132,) the sum of $130,000 was appropriated for the repair, preservation, construction, and completion of this canal, 'to be expended under the direction of the secretary of war.' The plan of the work was adopted in the spring of 1877 by the corps of United States engineers and the war office. The construction of the pier in question was commenced in 1877, and completed in 1881. Congress has at all times recognized the national character of the work, making at different times very large appropriations for the canal. 16 Stat. 224, 402. In 1881 the state of Michigan transferred the canal to the United States. See How. St. § 5502. The canal was built entirely within the military reservation belonging to the United States, and, if it infringes upon plaintiff's rights, it is purely because it crosses more of his riparian frontage than did the piers of the canal which was there at the time of the confirmation of his title to private claim No. 3, in 1855. Upon these facts the court below directed a verdict for the defendant.

Harlow P. Davock, (John C. Donnelly, of counsel,) for plaintiff in error.

Lewis G. Palmer, U.S. Atty...

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