Bd. of Park Com'rs v. Taylor

• Citation: 133 Iowa 453,108 N.W. 927
• Parties: BOARD OF PARK COM'RS v. TAYLOR. BOARD OF PARK COM'RS v. KIMBALL ET AL. BOARD OF PARK COM'RS v. RUBINSON ET AL.
• Decision Date: 11 July 1906
• Court: United States State Supreme Court of Iowa

133 Iowa 453

108 N.W. 927

BOARD OF PARK COM'RS

v.TAYLOR.

BOARD OF PARK COM'RS

v.KIMBALL ET AL.

BOARD OF PARK COM'RS

v.RUBINSON ET AL.

Supreme Court of Iowa.

July 11, 1906.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

These three actions are brought by the board of park commissioners of the city of Des Moines to establish its jurisdiction and right of control for park purposes under chapter 179, p. 131, Acts 28th Gen. Assem., over certain premises claimed by defendants as constituting a part of certain several lots to which they respectively have title. After a hearing on the merits there was a decree establishing in favor of plaintiff the jurisdiction and right of control as prayed as to each of the defendants, and the defendants prosecute their respective appeals. The cases are submitted on the same record and involve so nearly the same states of fact as to the questions in controversy that they may be disposed of as one case. Affirmed.Hager & Powell, for appellants.

Read & Read, for appellee.

McCLAIN, C. J.

By Acts 28th Gen. Assem. c. 179 (Acts 1900, p. 131), the board of park commissioners of Des Moines is vested with jurisdiction and control for park purposes over the Des Moines river and the bed and banks thereof within certain limits which need not here be specifically described. To establish their jurisdiction and right of control, within the provisions of this act, over a portion of the east bank of the river south of Walnut Street Bridge, these actions are brought, the claim being that defendants, who are owners of lots 1, 2 and 3 of block 5, of Scott & Dean's addition to Ft. Des Moines, now within the corporate limits of the city, are unlawfully trespassing upon and occupying with buildings, sheds, and personal property portions of the river bank west of and outside the limits of their respective lots, and within the limits over which the park board has jurisdiction and right of control, and the plaintiff asks that defendants be enjoined and restrained from maintaining buildings and obstructions on such portions of the river bank as are west of their respective lots and within the jurisdiction and control of plaintiff, and required to abate such buildings and obstructions as constituting nuisances. So far as these cases are concerned, there is no question but that plaintiff is entitled to the jurisdiction and control claimed in each case, unless the portions of the premises as to which defendants assert title are within the limits over which title is by them asserted, or have been added thereto by accretion or otherwise.

The following is a portion of the plat of Scott & Dean's addition, and shows block 5 bounded by Walnut street on the north and Front street, now known and described on the plat as First street, on the east, and extending south from Walnut street to the line of the alley in the next block east. South of this alley there is no platting of lots abutting upon the river, and Front or First street is bounded by the river. See Boehler v. Des Moines, 111 Iowa, 417, 82 N. W. 914.

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Defendants claim that their lots extend westward more than 100 feet beyond the line indicating the western boundary of the lots on the plat, and the controversy is over the defendants' titles to those extensions of their lots. The trial court found that the ownership of defendants was limited to lots having the dimensions indicated on the plat, and established the jurisdiction and right of control of plaintiff over the extensions of these lots claimed by the defendants west of the western boundary indicated on the plat, and directed the removal of all obstructions on the ground and river bank west of said lines.

1. The foregoing statement fails to take note of a claim presented by appellants in their argument in this court that the Des Moines river, north of the Raccoon Forks, and therefore along these lots as platted, is not and never was in law a navigable river, and that therefore defendants' lots extend to the middle of the channel of the river, regardless of the dimensions given on the plat. In the lower court it was conceded that the Des Moines river along this plat was a navigable river, and that defendants' lots extended only to high-water mark, and the whole case was tried on this theory. We think that it is not competent for defendants now to change their position, for in doing so they preclude the plaintiff from making proofs, which it might otherwise have made, as to the character of the stream. But as we view it defendants could not under the record question the character of the river as navigable, for it is conceded that in the original government survey it was meandered, and its character as a navigable stream was thus established so far as the possible limits of defendants' lots are concerned. The action of the Land Department of the United States government in meandering the stream and conveying the land bordering on such stream with reference to the meander line is conclusive that the stream was navigable in such sense that the title of the riparian owners resting on such survey extended, under the rule in this state, only to high-water mark. Rood v. Wallace, 109 Iowa, 5, 79 N. W. 449;Serrin v. Grefe, 67 Iowa, 196, 25 N. W. 227;Carr v. Moore, 119 Iowa, 152, 93 N. W. 52, 97 Am. St. Rep. 292. That the surveyors, in making the original United States survey, were required to determine the navigability of the stream in determining whether it was to be meandered, is apparent from Act May 18, 1796, c. 29, 1 Stat. 465, “providing for the sale of land of the United States in the territory northwest of the river Ohio and above the mouth of the Kentucky river,” which act was subsequently made the basis for the survey of land in Iowa. It was therein provided (section 2) that the land should be surveyed in townships of six miles square by running north and south and east and west lines, unless where “the course of navigable rivers may render it impracticable, and in that case this rule must be departed from no further than such particular circumstances require.” U. S. Comp. St. p. 1471, § 2395. And further in the same act (section 9) it is provided 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 in all cases where the opposite banks of any stream not navigable shall belong to different persons, the stream and bed thereof shall become common to both.” 1 Stat. 468, U. S. Comp. St. p. 1567, § 2476. In the directions to surveyors issued by the General Land Office it was provided that “both banks of navigable rivers are to be meandered by taking the courses and distances of their sinuosities.” Lester, Land Laws, p. 714. There can be no doubt that the approval of the survey when made constituted a determination by the Land Department that the stream meandered was a navigable stream, and this determination is conclusive so far as the title of riparian owners is concerned. If defendants have title to any portion of the premises claimed by them west of the line indicated on the plat as their western boundary, it must be based on some other ground than that their lots extend by operation of law to the center of the Des Moines river.

2. On the other hand, it is contended for plaintiff that defendants are limited in the size of their lots to the dimensions shown on the plat, and in support of this contention counsel refer to the statute in force at the time this plat was filed in 1849, by which it was provided that lots “intended for sale shall be numbered in progressive numbers, or by the squares in which they are situated, and their precise length and width shall be stated on said plat or map” (Rev. St. Iowa Terr. 1843, p. 608, c. 147), and to the certificate of the surveyor to the plat, in which it is recited that “courses of streets, distances, size of lots, and blocks [are] as marked upon the plat.” Without doubt the plat is to be interpreted as showing that the east and west lines bounding lot 3 on the north and south are each 38 feet long, the east and west line between lots 1 and 2 is 34 feet long, and the south line of lot 1 is 30 feet long. It is conceded that the conveyances of these lots described them by number only, and not either by dimensions or by reference to the Des Moines river. But when a lot is thus described as on a map or plat to which reference is made, such map or plat becomes, for the purpose of description, a part of the deed and has the same effect as though it were incorporated into the instrument. Nicolin v. Schneiderhan, 37 Minn. 63, 33 N. W. 33. Therefore defendants' deeds, although they contain no calls to the Des Moines river, do, by reference to the plat, call for lots extending from First street west to the Des Moines river; for they are so represented on the plat. It is true they are also represented on the plat as of specified dimensions east and west; but where a monument is referred to, as, for instance, the shore of a river or lake, such monument, when identified and its location established, controls courses and distances in the description. County of St. Clair v. Lovingston, 23 Wall. (U. S.) 46, 23 L. Ed. 59;Erkens v. Nicolin, 39 Minn. 461, 40 N. W. 567;Spring v. Hewston, 52 Cal. 442;Liddle v. Blake (Iowa) 105 N. W. 649. Where a river or lake is designated as the boundary, there is nothing left for private appropriation between the land described and the water; that is, the stream or lake constitutes the boundary, and not the line fixed on the plat by the courses and distances. County of St. Clair v. Lovingston, 23 Wall. (U. S.) 46, 63, 23 L. Ed. 59;Watson v. Peters, 26 Mich. 508;Fletcher v. Thunder Bay R. Boom Co., 51 Mich. 277, 16 N. W. 645. These considerations dispose of the claim made for plaintiff that defendants are restricted to the exact line drawn on the plat as indicating their western boundary, for that line indicates also that it is...