Dupue Rod & Gun Club v. Marliere
| Decision Date | 07 December 1928 |
| Docket Number | No. 18695.,18695. |
| Court | Illinois Supreme Court |
| Parties | DUPUE ROD & GUN CLUB v. MARLIERE et al. |
OPINION TEXT STARTS HERE
Commissioner's Opinion.
Injunction by the Dupue Rod & Gun Club against Ernest Marliere and others. From a decree of dismissal, complainant appeals.
Reversed and remanded, with directions.
Appeal from Circuit Court, Bureau County; Joe A. Davis, judge.
George W. Hunt, and Clark B. Montgomery, both of Peoria, for appellant.
Butters & Butters and Woodward, Hibbs & Pool, all of Ottawa, for appellees.
Appellant, the Dupue Rod & Gun Club, a corporation, filed its bill in the circuit court of Bureau county to restrain appellees, seven in number, from hunting and fishing on lands claimed by appellant. Upon issue being joined the cause was referred to a master, who recommended that the bill be dismissed for want of equity as to the land covered by the waters of Lake Dupue. Exceptions to the report were overruled, a decree was entered as recommended, and an appeal has been prosecuted to this court.
Appellant claims to be the owner of certain lands and the lessee of other lands in Bureau county, consisting of several hundred acres, used as a private hunting and fishing preserve. On a part of this land is Lake Dupue, which is about 3 1/2 miles long, from 24 to 50 rods wide, and is connected with the Illinois river. The bill alleged that appellant was in possession of all of this land, either as owner or lessee, and that the land had been conveyed by the United States to the state of Illinois by a patent under the Swamp Lands Act of 1850 (43 USCA §§ 982-984), and subsequently had been conveyed by mesne conveyances to appellant and its lessors; that appellees had committed numerous acts of trespass on the land by hunting and fishing after repeated warnings from appellant. The prayer was for an injunction against appellees to prevent further trespasses. Appellees by their answer denied the trespasses, and alleged that appellant and its lessors were not the owners of the fee or entitled to the possession of the waters of Lake Dupue, or the bed thereof, but that the title thereto was in the state of Illinois in trust for the use of the public. Upon the hearing before the master appellant proved its chain of title by a patent from the United States under the Swamp Lands Act and mesne conveyances to itself and its lessors. It proved the trespasses and warnings as alleged in the bill. Appellees offered evidence that the lake in a state of nature was navigable at the time Illinois was admitted to the Union. The master found that the lake was navigable at the time Illinois was admitted to the Union, that the bed of the lake belongs to the state in trust for the people, that the patent from the United States was null and void, that the bill should be dismissed as to any part of the land covered by the waters of the lake, and that a permanent injunction should issue as to any and all of the other lands owned or leased by appellant. The decree confirmed the report and dismissed the bill for want of equity.
The questions at issue are as to the ownership of the bed of the lake and the right of appellees to question the title of appellants and its lessors in this proceeding.
[1] When Illinois was admitted to the Union, in 1818, it became vested with the title to the beds of certain navigable lakes and bodies of water within its borders. Whether or not title became so vested depended upon the test of navigability as applied to any particular body of water. Where a lake or pond is not navigable, and has never been meandered by the federal government, and the land under the water has been sold or conveyed, the owners are entitled to the exclusive possession thereof. Wilton v. Van Hessen, 249 Ill. 182, 94 N. E. 134. By the Act of Congress of September 28, 1850, the swamp and overflowed lands of the various states, including Illinois, remaining unsold, were granted to the states to enable them to construct necessary levees and drains to reclaim the land. The act made it the duty of the Secretary of the Interior to make accurate lists and plats of such lands and transmit the same to the Governors of the several states, and at the request of the Governor of any state to cause the patent to be issued to such state for such swamp or overflowed lands.
Congress also provided that all lands selected and reported to the general land office as swamp or overflowed lands by the several states entitled to the provisions of the act prior to March 3, 1857, were confirmed in the states, respectively, so far as they remained vacant and unappropriated by actual settlement under the laws of the United States. State v. New, 280 Ill. 393, 117 N. E. 597. The investigation and determination of the question as to what lands were swamp and overflowed lands in the various states was committed by Congress to the land department of the federal government. That department was authorized to determine what lands were swamp and overflowed lands, as distinguished from lands covered by navigable waters. The evidence shows that the Secretary of the Interior determined that the bed of Lake Dupue came under the Swamp Lands Act of 1850, and he so classified the land as provided in that act, and certified that fact to the Governor of Illinois, and upon request of the Governor a patent was issued to the state for the land in question in this case.
On June 22, 1852, the Legislature of Illinois passed a statute which provided that all swamp and overflowed lands granted to the state of Illinois by the Act of Congress of September 28, 1850, be granted to the counties, respectively, in which the same might lie, for the purpose of reclaiming the same. Section 3 made it the duty of the auditor of public accounts to furnish to each county a full abstract of all the swamp and overflowed lands within the limits of the county. Section 5 made it the duty of the county surveyor to survey all such lands and file with the county a plat thereof. Other sections provided the manner in which the land might be sold by the counties. In 1854 the act of 1852 was amended, by providing that the lists of swamp lands should be sufficient evidence of the title to the lands therein described and should have the same force and effect as patents issued for school lands, and that duly certified copies of such lists should be received in all courts and have the same force and effect as the original lists. Laws 1854, p. 14.
The evidence shows a compliance with the act of 1852. The auditor of public accounts furnished to Bureau county a full abstract of all swamp and overflowed lands within its limits as patented to the state from the United States. The county surveyor of Bureau county surveyed the lands as certified and filed a plat thereof with the county. The county then proceeded to sell the lands as provided in ...
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