Chapman & Dewey Land Company v. Bigelow

• Decision Date: 06 January 1906
• Citation: 92 S.W. 534,77 Ark. 338
• Parties: CHAPMAN & DEWEY LAND COMPANY v. BIGELOW
• Court: Arkansas Supreme Court

92 S.W. 534

77 Ark. 338

CHAPMAN & DEWEY LAND COMPANY v. BIGELOW

Supreme Court of Arkansas

January 6, 1906

Appeal from Poinsett Chancery Court; EDWARD D. ROBERTSON Chancellor; affirmed.

Decree affirmed.

Frierson & Frierson, Ashley, Gilbert & Dunn, of Kansas City, Mo., and Robert S. Rodgers, for appellant.

1. Meander lines along or near the margin of a stream or other body of water are run to ascertain the quantity of public land sold, and are not boundary lines; the waters themselves constitute the real boundary. By the common law, fresh water lakes and ponds, not navigable, belong to the owners of the adjacent soil, who own usque ad filum aquae. 140 U.S. 371; Ib. 406; Gould on Waters (1900 Ed.), § 196; 42 L. R. A 305, note; 25 Ark. 120; 24 Ark. 102; 50 Ark. 471; 51 Ark 491; Ib. 233; 83 S.W. 951.

2. Plats and field notes are the best evidence of the condition of the locus in quo at the date of the Swamp Land Grant. 39 F. 66.

3. The decision of the Secretary of the Interior, based on plats field notes and other records, is final on the question whether the fractional sections were properly meandered on a permanent body of water, and whether the region designated on Government plats as water has ever been selected and approved to the State under the Swamp Land Grant. 46 Ark. 17; 33 Ark. 833; 71 Ark. 491; and cases cited. See also 129 F. 1; 189 U.S. 120.

4. Nothing can pass to the State as swamp land until identified as such by the Secretary of the Interior. 168 U.S. 588.

5. Parol evidence was inadmissible to show that the land was at the date of the Swamp Land Grant in fact swamp land. 159 U.S. 332; 149 U.S. 79; 71 Ark. 491.

6. The region in controversy will be presumed to be a non-navigable body of water. 39 Ark. 403; 21 Am. Eng. Enc. Law, 429, note 6 to subd. c. Where a river runs through a lake or pond, the main channel will be the boundary, in case of recession of the waters. Gould on Waters (1900 Ed.), § 196, and cases cited; 37 Am. Dec. 545; 40 Ark. 501.

N. W. Norton, for appellees.

1. The letter of the Secretary of the Interior was inadmissible as evidence. There had been no contest before the department, and the letter was a mere matter of correspondence, to which appellant was a stranger.

2. The Swamp Land Act of September 28, 1850, passed title in praesenti to the States to all lands of that character, and the lists and plats required to be made by the Secretary of the Interior were means of identifying such as were swamp lands. 20 Ark. 100; 24 Ark. 431; 29 Ark. 56; 9 Cal. 322; Ib. 544; 27 Cal. 87; 121 U.S. 488.

3. Under the proof, the unsurveyed land was land at the time of the Government survey. It does not belong to appellant as an appurtenance to the surveyed shore. Land cannot be appurtenant to land. 10 Pet. 25; Rose's Notes on U. S. Rep. vol. 3, 544; 13 Am. Dec. 657, notes.

4. Meander lines bordering on navigable streams are run, not as boundaries, but to define the sinuosities of the stream, and to ascertain the quantity for land for which the purchaser must pay. 7 Wall. 272. The courts will hold that the surveyor was, in this case, mistaken in conceiving that he had reached the main body of the water, and the line be held as a boundary. 159 U.S. 40; 4 Neb. 245; 75 Iowa 20; 78 Wis. 240; 82 Wis. 147; 1 Black, 204; 85 F. 45; 41 Ohio St. 696; 54 P. 195.

5. The township was surveyed, and passed as a whole, and title to the unsurveyed lands also passed. 33 So. 628; 138 U.S. 584; 57 P. 912; 74 N.W. 705; 121 U.S. 488.

BATTLE J. Mr. JUSTICE BREWER. MCCULLOCH, J., dissents.

OPINION

BATTLE, J.

Chapman & Dewey Land Company, a corporation organized under the laws of the State of Missouri, brought a suit against Charles H. Bigelow, N. P. Bigelow, L. T. Walker and F. H. Hartshorn to quiet title to certain lands, and for that purpose to have declared void and of no effect certain conveyances under which the defendants claim title thereto.

Plaintiff claims title under an act of Congress entitled "An act to enable the State of Arkansas and other states to reclaim the Swamp Lands within their limits," approved September 28, 1850. It alleges that, in pursuance of the provisions of this act, surveyed sections and parts of fractional sections in fractional township twelve north of the base line, in range six east of the fifth principal meridian, and in township twelve north of the base line, in range seven east of the fifth principal meridian, and in Poinsett County, in this State, were duly selected, approved and patented to the State of Arkansas as a part of the Swamp Land Grant; that certain of these lands were conveyed by the State of Arkansas, on the 12th day of June, 1871, to Moses S. Beach; that plaintiff acquired, and is the owner of, these lands so conveyed to Beach, as well as certain other of the lands which were deeded to the State of Arkansas by the United States; that many of the legal subdivisions of sections so acquired by plaintiff were bounded by a large body of non-navigable water called in the official surveys of the United States and field notes there of as the "Sunk Lands," "St. Francis River Sunk Lands," the "Hatchie Coon Sunk Lands," and the "Cutoff Lake;" that the legal subdivisions so bounding were fractional, and in the survey were meandered along such body of water. The plaintiff thereupon claims the lands lying under this body of water; and these are the lands in controversy in this suit to which it (plaintiff) seeks a decree to quiet its title as against the defendants. Plaintiff alleges that these lands are wild, unimproved and unoccupied, and that the defendants are claiming them under certain deeds; and asks that these deeds be declared void, invalid, and of no force whatever.

The defendants answered, and denied that the so-called "Sunk Land" was a body of water, or that it is shown to be by the surveys of the United States or the field notes; but alleged that it was sometimes temporarily flooded with water, and was land bearing "trees and vegetables, willow and cypress;" and that the meandered lines run as alleged by plaintiff were run as boundaries, and not for the purpose of finding the number of acres in the sections or legal subdivisions "for which purchasers would have to pay when the Government might dispose of the land."

The chancery court, after hearing the evidence adduced by all the parties, dismissed the complaint for want of equity, and rendered judgment in favor of the defendants for costs; and the plaintiff appealed.

We have attempted to state briefly so much of the pleadings in the case as presents the issue for our consideration. Before noticing the facts, we will consider the law of the case.

In Hardin v. Jordan, 140 U.S. 371, 35 L.Ed. 428, 11 S.Ct. 808, the court, after an extensive review of authorities, held that, "by the common law, under a grant of lands bounded on a lake or pond which is not tide-water and is navigable, the grantee takes to the centre of the lake or pond, ratably with other riparian proprietors, if there be such."

Horne v. Smith, 159 U.S. 40, 40 L.Ed. 68, 15 S.Ct. 988, was an action to recover the possession of certain lots. "Plaintiff's title rests on a patent from the United States, dated March 20, 1885, conveying 'lot numbered seven of section twenty-three, and the lots numbered one and two of section twenty-six, in township twenty-nine south, of range thirty-eight east of Tallahassee meridian in Florida containing one hundred and seventy acres and forty-two hundredths of an acre, according to the official plat of the survey of the said lands returned to the General Land Office by the surveyor-general.' The official plat of township 29 was in evidence, which showed that sections 23 and 26 were fractional sections bordering on the Indian River. On this plat a meander line runs through the sections from north to south, the Indian River being on the west thereof. The east line of the sections is, so far as these lots are concerned, the ordinary straight line of government surveys. In the south half of the southeast quarter of section 23 is lot 7. The area of that lot is given as 73.06 acres. The northeast quarter of section 26 is divided into lots 1 and 2. The area of lot 1 is 54.90 acres, and of lot 2, 43.53 acres. The boundary lines of these three lots are all straight with the exception of the meander line on the west. The length of the section line between lot 7 and lot 1, extending from the east section line to the meander line on the west, is stated to be 30.55 chains. Along the course of this meander line, as shown on the plat, runs, according to the testimony, a bayou or savannah opening into Indian River, and west of this bayou, and between it and the main waters of the river, is a body of land extending in width a distance of a mile or a mile and a quarter, and amounting to some 600 acres. This is a body of low land, in some places, however, from four to six feet above the level of the river, and covered with a growth of live oak trees, many of them three and four feet in diameter. It was not land formed by accretion since the survey."

Mr JUSTICE BREWER, in delivering the opinion of the court, said: "But the question in this case is whether the boundary of these lots is the bayou or the main body of the river. That a water line runs along the course of the meander line cannot, of course, in the face of the plat and survey, be questioned, but that the meander line of the plat is the water line of the bayou, rather than that of the main body of the river, is evident from these facts. In the first place, the area of the lots is given; and when that area is stated to be 170 acres, it is obvious that no survey was intended of over 700 acres. In the second place, the meander line, as shown on the plat, is so...