Hardin v. Jordan

Decision Date11 May 1891
Citation140 U.S. 371,35 L.Ed. 428,11 S.Ct. 808
PartiesHARDIN v. JORDAN
CourtU.S. Supreme Court

Thomas Dent, for plaintiff in error.

John I. Bennett and W. C. Goudy, for defendant in error.

BRADLEY, J.

This is an action of ejectment brought by Gertrude H. Hardin, the plaintiff in error, to recover possession of certain fractional sections of land lying on the west and south sides of a small lake in Cook county, Ill., situate about a dozen miles south of Chicago, and two or three miles from Lake Michigan; and also to recover the land under water in front of said fractional sections, and land from which the water retires at low water. The lake is two or three miles in extent, and the main question in the cause is whether the title of the riparian owner on such a lake extends to the center of the lake, or stops at the water's edge. The court below decided that the plaintiff's title only extended to low-water mark, and to that extent gave judgment for the plaintiff, but as to all the land under permanent water gave judgment for the defendant. The question is of much importance, and deserves a careful consideration. Some question was made in the argument whether the pleadings presented the points at issue with sufficient distinctness. We think they do, and shall not waste any time on that point. The annexed diagram shows the situation of the property, as delineated on the plat of the government survey, made in 1834-35. The plaintiff claimed under a patent from the United States, granted to her ancestor, John Holbrook, in 1841, for the following fractional quarter sections, to-wit: § E. fractional 1/4 of section 19, N. E. fractional 1/4 of section 30, and east part of S. E. fractional 1/4 of section 30, designated by the letters A, B, and C on the plat. The defendant disclaimed any interest in the fractional quarter sections themselves, but claimed all the land in front of them, whether covered with water or not, by virtue of various patents granted in 1881. The cause was twice tried before the court without a jury Outline of official plat of the fractional township 37 N., range 15 E., as per government survey of 1834-35.

Holbrook's patent, under which plaintiff claims, was for S. E. fractional 1/4 section 19, N. E. fractional 1/4 section 30, E. fraction S. E. 1/4 section 30, designated by the letters A, B, C first, before Judge BLODGETT in 1883; and, secondly, before Judge GRESHAM in 1885, a second trial in action of ejectment being allowed as of course, under an Illinois statute. Hurd's Rev. St. Ill. 447; Rev. St. Ill. 1845, p. 208. The same result was arrived at on each trial. Judge BLODGETT delivered an opinion which is reported in 16 Fed. Rep. 823. Judge GRESHAM did not deliver an opinion. He made a special finding of facts, on which judgment was rendered, and a bill of exceptions presents the evidence offered by the defendant in opposition to the plaintiff's claim. This evidence tended to prove that there was, in fact, within the meander lines of the public survey of the lake, a streak or tongue of upland not covered by water at its ordinary height; and showed the action of the land department in ordering a survey of the bed of the lake, and a grant of the same to different parties; which evidence was objected to by the plaintiff, and an exception taken. The result of this evidence is expressed in the special finding of the court. The special finding of facts was as follows:

'(1) That plaintiff is seised in fee of the south-east fractional 1/4 of section nineteen, (19,) the north-east fractional 1/4 and the east fraction of the south-east fractional 1/4 of section thirty, (30,) all in township thirty-seven (37) north, of range fifteen (15) east, in Cook county, state of Illinois, as per patent from the United States of America to John Holbrook, plaintiff's ancestor, dated May 20, 1841, in which patent the grant of said lands is resited to be 'according to the official plat of the survey of the said lands returned to the general land-office by the surveyor general;' that said patent was based upon on an entry by said John Holbrook, made in the year 1838, at the United States landoffice in Chicago, Ill. (2) The government survey of lands in fractional township thirty-seven (37) aforesaid was made in the years 1834 and 1835, and the field-notes thereof as to the lands in question were as follows, to-wit: [The field notes are then given in extenso, expressly describing the meander line of the fractional sections as being 'along the margin of the lake,' from the intersection of the south margin thereof with the Indiana state line, and thence going westwardly, northwardly, and eastwardly, around the entire contour of that portion of the lake which is situated in the state of Illinois. The finding of the court then introduces the plat made from said survey and fieldnotes for the local land-office, the surveyor-general's office, and the general landoffice, office, which shows the said fractional sections bounded on said lake, and the words 'Navigable Lake' written on the body of the portion representing the lake, as in the annexed diagram. The finding then proceeds as follows:] (4) The body of water shown upon the plat referred to as a navigable lake was in fact meandered by the surveyor, the meander line being run substantially upon the margin of said lake, as shown by said plat, save as follows, viz.: That the said line was carried across a certain ridge of land extending from the center of fractional sec. 20, in said township, in a southerly direction, towards the point of land shown in said plat as comprising the east fraction of the south-east quarter of sec. 30 and fractional sec. 29, in said township, said ridge or strip of land thus projecting into said body of water southerly about 220 rods, being of varying width and elevation, and covered with timber—oak, hickory, elm, ash, poplar, linden, and hackbery—three feet in diameter and under; the width of said ridge, limiting it to dry land at ordinary stage of water, being over 28 rods at the north, and of varying width, being in some places slightly wide and at some narrower, extending to a depression about 140 rods south, and thence south of a general character but slightly narrower and lower a distance of about 80 rods, at the last-named point said ridge disappearing, and from there to a point south about 80 or 90 rods the bed and growth are of the same general character as the bed and growth along the margin of the lake, and on either side of the ridge reeds and coarse grass growing in the water, and there being nothing but such growth to obstruct the flow of water from one side to the other, the depth at this point being sufficient at high water to enable skiffs and small boats to be rowed through from one side to the other, the water west having for many years been known as 'Hyde Lake,' in ordinary speech, while that to the east has been currently known as 'Wolf Lake,' said space or distance last described being marsh land at low water; that at the south limit of the tract last described is a small body of land known as 'Elm Island' or 'Fogli's Place,' of the extent of 1 1/2 or 2 acres, upon which timber grows of the same character as that on said ridge, to the south of which for about 50 rods there is water at high stages and marsh at medium stages, at which point or distance the ridge appears again as dry land about 30 rods to a little east of north from the north point of the meander line of the point of land comprising fractional section 29, etc., before referred to, there being also a small knoll bearing a number of small trees or bushes about 20 rods northwest from the northerly point of the ridge last mentioned. Upon the entire western margin of the water shown on the plat, and extending some 20 or 25 rods east from the meander line, and also on the east and west margin of the dry land of said ridge to the north, as well as in the space between said ridge and Elm island, and in the space above described south of said Elm island, the vegetation is solely a marsh growth of reeds and coarse or swamp grass growing in the water and of a uniform character, and the same is true as to the southerly portion of the lake west of plaintiff's land in the east fraction of the south-east fractional 1/4 of said section 30. The physical condition west of the meander of said east fraction, etc., is the same for a distance of 91 or more rods westerly as it is generally at and along said meander line, the same character of growth as aforesaid appearing in the water at ordinary and high stages for said distance west of said line, the greater part of plaintiff's said land in said east fraction of the south-east fractional quarter of said section 30 being wet and unfit for cultivation, and only slightly higher than that to the west, there being 2 4-100 acres in said east fraction, treating the meander line as a boundary, in the form of a right-angle triangle, with its base resting on the south section line with the meander line as a western boundary thereof. The point at which to the south the open water of said lake ceases and marsh grass begins is several rods north of the south line of said section 30. The physical conditions of the land and water are substantially what they were at the time of the original survey; that said lake or lakes are not navigable waters. (5) At the time of said government survey there was a natural outlet for said lake towards the north-east into Lake Michigan through Wolf river, said river being about 1 1/2 miles long and from 6 to 14 feet in depth; but such outlet was and has continued to be subject to interruption by the formation of a sand-bar across the mouth thereof upon the shore of Lake Michigan. There was also an outlet from the westerly portion of said lake into the Calumet river, shown on said plat as Little Kalamick, said outlet into the Calmuet river running in a westery d irection through the fractional north 1/2 of said section 30 to its...

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