Gardner v. Green

• Decision Date: 25 February 1937
• Docket Number: No. 6354.,6354.
• Parties: GARDNER v. GREEN et al.
• Court: North Dakota Supreme Court

67 N.D. 268

271 N.W. 775

GARDNER

v.GREEN et al.

No. 6354.

Supreme Court of North Dakota.

Feb. 25, 1937.

Syllabus by the Court.

1. As a general rule, meander lines are run in surveying fractional portions of public lands bordering upon navigable rivers, not as boundaries of tracts, but for the purpose of defining the sinuosities of the banks of the stream and as the means of ascertaining the quantity of land in the fraction subject to sale, and which is to be paid for by the purchaser.

2. Under the laws of North Dakota (section 5352, Comp.Laws 1913), the owner of land which borders on a navigable lake or stream takes to the edge of the lake or stream at low-water mark, except when the grant under which the land is held indicates a different intent.

3. Under the laws of North Dakota (section 5473, Comp.Laws 1913), land formed, as a result of natural causes, “by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream,” belongs to the owner of the bank, subject to any existing right of way over the bank.

4. Where the field notes and the official map of the United States government survey show that a fractional subdivision or lot is bounded on three sides by government subdivision lines and is bounded on the fourth side by a navigable river, a grant of such land by the United States government carries title to the low-water mark, unless the boundary is in some way otherwise designated.

5. Where, according to the field notes and the official plat of a United States government survey a fractional portion of land borders upon and is bounded on one side by a navigable stream; and where the evidence shows and the official plat of the survey itself discloses that the meander line in such survey did not follow the actual shore line, but that there was a strip of land between the meander line and the shore line; and where the field notes and the official plat of the survey show the fractional subdivision to be bounded by the river-the government subdivision lines forming the boundaries of the fractional subdivision do not stop where they intersect the meander line, but maintain their course to the water's edge, unless before reaching the water they cross governmental subdivision lines indicated on the survey to be intended as a boundary.

Appeal from District Court, McKenzie County; Lowe, Judge.

Action by C. N. Gardner against Frank Green and another. Judgment for plaintiff, and the named defendant appeals.

Remanded for a limited new trial.

R. E. Swendseid, of Stanley, for appellant.

C. N. Cottingham, of Stanley, for respondent.

CHRISTIANSON, Chief Justice.

This is an action to determine adverse claims to certain lands lying between the meander line, placed by the United States government survey in front of lots 5 and 7 in section 27, township 153 north, range 93 west, in McKenzie county, N. D., and the Missouri river which flows in front of and immediately adjacent to such lands. Lots 5 and 7 were surveyed by the United States government in 1896. The survey of the subdivisions and meanders were made in June and July, 1896, and the official map conformable to the field notes of the survey was approved and filed in the United States Surveyor General's office in January, 1897. The United States issued patent for lot 5 on June 1, 1911, and for lot 7 on October 12, 1920. The plaintiff is the owner of lot 5, and the defendant Green is the owner of lot 7.

There is no dispute as to the rule that should be applied in dividing accretions between the owners of the two tracts; but there is a dispute as to the base or starting point from which a line should be drawn dividing such accretions.

The questions raised on this appeal are: (1) Should the meander line shown on the map of the United States survey be taken as the boundary line of lots 5 and 7, and should the point where the subdivision line running east and west between lots 5 and 7 intersects such meander line be taken as the starting point for the purpose of dividing accretions between the owners of the two tracts? (2) If not, was the meander line in fact also the actual shore line in front of the lots in question at the time of the government survey?

The case was tried to the court without a jury and resulted in a judgment in favor of the plaintiff. The defendant Green has appealed, demanding a trial anew in this court.

Upon the trial, copies of the field notes and of the official map of the United States survey were offered and received in evidence. There was also adduced testimony of witnesses as regards the condition of the land where the meander line was run and the existence and the condition of land between the meander line and the shore of the river. Such evidence related to the character of the land, growth of trees, etc. Some of the witnesses had been familiar with and had observed the condition of the land over a long period of years.

The following map is a reproduction of the original plat of the government survey in 1896:

IMAGE

The trial court, among others, made the following findings of fact:

“5. That in making said survey said United States Surveyor General caused a meander line to be established along the sides of said Lots 5 and 7 facing said Missouri River toward the East, the North end of said meander line where it angles away from the actual river shore line being established on the river edge, and can be located as follows, to-wit: Commencing at a point about 2112 feet due East of the Southwest corner of Lot 5 in Section 27, Township 153 N., Range 93 W., 5th P. M. on the line extending East and West between Lots 5 and 7 in said Section 27, thence running due North a distance of about 2112 feet to the meander line on the bank of the Missouri River. That from said point said meander line runs diagonally in a southeasterly direction along the East frontage of said Lots 5 and 7 to a point on said meander line 990 feet due East of the Northeast Corner of the Southeast quarter of the Southwest Quarter (SE 1/4 SW 1/4) of Section 27 in said Township and Range.

6. The said meander line in front of Lots 5 and 7 as above described does not follow the actual shore line of said Missouri River; but in fact runs a considerable distance West of said actual shore line of said river as it existed in the year 1897, and as it exists at the present time, to-wit: That from the North point on said meander line as above described, the actual shore line of said Missouri River, at the time of said survey, extended in a general southeasterly direction East therefrom, said actual shore line being in the year 1897 located a distance of approximately 3240 feet due East from the point on the meander line located at the Northeast Corner of said Lot 7 in Section 27, and that at the present time the actual shore line of said Missouri River is located at a distance of approximately 3540 feet due East of said Northeast corner of Lot 7 in Section 27.

7. That subsequent to the year 1897 there has been added to the frontage of said Lots 5 and 7, in the nature of accretion thereto territory as follows: on the quarter section line running East and West between Lots 5 and 7, Section 27, the shore line is now situated about 300 feet due East of the old shore line as it existed in 1897.

8. That the tract of land lying between the meander line above described and in front of said Lots 5 and 7, and the old shore line of the Missouri River as it existed in 1897 is covered with dense underbrush and small cottonwood trees.”

[1] The laws of the United States prescribe the following rules for ascertaining the boundaries of public lands that have been surveyed by the Surveyor General:

“The boundaries and contents of the several sections, half-sections, and quarter-sections of the public lands shall be ascertained in conformity with the following principles:

First. All the corners marked in the surveys, returned by the surveyor-general, shall be established as the proper corners of sections, or subdivisions of sections, which they were intended to designate; and the corners of half and quarter sections, not marked on the surveys, shall be placed as nearly as possible equidistant from two corners which stand on the same line.

Second. The boundary lines, actually run and marked in the surveys returned by the surveyor-general, shall be established as the proper boundary lines of the sections, or subdivisions, for which they were intended, and the length of such lines, as returned, shall be held and considered as the true length thereof. And the boundary lines which have not been actually run and marked shall be ascertained, by running straight lines from the established corners to the opposite corresponding corners; but in those portions of the fractional townships where no such opposite corresponding corners have been or can be fixed, the boundary lines shall be ascertained by running from the established corners due north and south or east and west lines, as the case may be, to the watercourse, Indian boundary line, or other external boundary of such fractional township.” 2 Stat.L. 313; section 2396, R.S. (43 U.S.C.A. § 752 and note).

“In every case of the division of a quarter-section the line for the division thereof shall run north and south, and the corners and contents of half quarter sections which may thereafter be sold, shall be ascertained in the manner and on the principles directed and prescribed by the section preceding, and fractional sections containing one hundred and sixty acres or upwards shall in like manner as nearly as practicable be subdivided into half quarter sections, under such rules and regulations as may be prescribed by the Secretary of the Interior, and in every case of a division of a half quarter-section, the line for the division thereof shall run east and west, and the corners and contents of quarter quarter sections, which may thereafter be sold, shall be...