Hilt v. Weber

• Decision Date: 02 December 1930
• Docket Number: October Term, 1929.,No. 24,24
• Citation: 233 N.W. 159,252 Mich. 198
• Parties: HILT et al. v. WEBER et al.
• Court: Michigan Supreme Court

252 Mich. 198

233 N.W. 159

HILT et al.

v.WEBER et al.

No. 24, October Term, 1929.

Supreme Court of Michigan.

Dec. 2, 1930.

Appeal from Circuit Court Oceana County, in Chancery; Joseph Barton, Judge.

Suit by John R. Hilt and another against Herman H. Weber and another, in which defendants filed a cross-bill. From the decree, plaintiffs appeal.

Reversed.

Argued before the Entire Bench.

WIEST, C. J., and McDONALD, J., dissenting.

Penny & Worcester, of Cadillac, for appellants.

E. P. Geib, of Grand Rapids, and A. S. Hinds, of Shelby, for appellees.

Wilber M. Brucker, Atty. Gen., M. M. Larmonth, Asst. Atty. Gen., and W. L. Jenks, of Port Huron, amici curiae.

FEAD, J.

The bill was filed to foreclose a land contract. Defendants claimed fraud in the sale and, on cross-bill, were awarded damages.

The property is located in Oceana county on the shore of Lake Michigan. The meander line is 277 feet from the water's edge, is on a ledge 44 feet above the present level of the lake, and is partly in the woods. A stake had been driven in the shore 100 feet from the water. Plaintiffs' agent represented to defendants that the stake marked the boundary. Defendants had damages for failure of title to the strip between the meander line and the stake, under the authority of Kavanaugh v. Rabior, 222 Mich. 68, 192 N. W. 623, and Kavanaugh v. Baird, 241 Mich. 240, 217 N. W. 2, which hold that the fee in all land between the meander line and the water is in the state in trust, subject to riparian rights of the upland owner.

While some of the disputed strip undoubtedly has been always upland since before admission of the state into the Union and the rest has been made dry land partly by accession and partly by reliction, the whole will be referred to as relicted land, unless otherwise indicated, to obviate constant distinction, as the title would be the same whatever its character in these respects, under either the Kavanaugh Cases or the other authorities. Nor are we concerned with the specific cause of reliction or accession so it be gradual, imperceptible, and natural or general to the lake.

The elements of defendants' damages for fraud depend upon the respective rights of the state and the riparian owner in the strip of relicted land. In investigating them for the purpose of an enumeration of the respective rights, we found a conflict of authority which led to inquiry into other phases of the Kavanaugh Cases. Those phases did not arise in Bankers' Trust Co. v. Weber, 244 Mich. 697, 222 N. W. 81;Newman v. Bump, 245 Mich. 665,244 N. W. 321, and Staub v. Tripp, 248 Mich. 45, 226 N. W. 667 (in the latter of which a rehearing has been ordered), which followed the Kavanaugh decisions, but merely as precedents and without consideration of their soundness. Because of the conflict of authority, and also because the executive and legislative branches of the state government have felt need of more precise statement of the legal situation as a basis of legislation, we finally determined upon a frank re-examination of the Kavanaugh Cases from the viewpoint that, if they are right, they should be clarified by identifying the rights of the parties more minutely, and, if they are wrong, they should be overruled as effecting a virtual appropriation of private property to the State without compensation. In the re-examination we have had the assistance of briefs of counsel for the parties and also of the Attorney General and others representing public and private interests as amicus curiae. In quoting from cases, the italics are ours.

Since La Plaisance Bay Harbor Co. v. City of Monroe (1843) Walk. Ch. 155, this court has consistently held that the state has title in fee in trust for the public to submerged beds of the Great Lakes within its boundaries. In that case applied to all navigable waters, the doctrine was early changed with reference to inland lakes and streams, as to which it is the law of the state that the adjoining proprietor owns to the survey lines extended or to the thread of the stream. The latter ruling applies even to the connecting waters of the Great Lakes, Detroit river, Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435; St. Clair river, McMorran Milling Co. v. C. H. Little Co., 201 Mich. 301, 167 N. W. 990, and St. Mary's river, Ainsworth v. Hunting & Fishing Club, 159 Mich. 61, 123 N. W. 802. So, in considering authorities, it is necessary to differentiate between the sea or Great Lakes and other waters in jurisdictions where they are not subject to the same law. The character of the state's title in trust was exhaustively discussed in Nedtweg v. Wallace, 237 Mich. 14, 208 N. W. 51,211 N. W. 647, and need not be repeated here.

Lest we be misled, we must keep it clear that the issue is not as to the ownership of submerged land or of an island arising out of the lake or of lands beyond lines established as definite boundaries by the government or of other distinguishable premises. It covers only dry land, extending meandered upland by gradual and imperceptible accession or recession of the water, on the lake side of the meander line.

The concession in the Baird Case that the decision was against the weight of authority, supported by the fact that the contrary authority is substantially unanimous, in state and federal courts, in this country and England, relieves us of the necessity of detailed consideration of outside cases. Their use will be largely illustrative or cumulative. Our task here is to determine whether, in view of prior decisions of this court, the Kavanaugh Cases perpetuated or abrogated a rule of property in this state.

The basis of those decisions, so recognized in the Baird Case, was the statement in the Rabior opinion, which we divide and number for convenience:

(1) ‘When the meander line was established, it fixed the status of the disputed strip as lake bottom, and (2) this status in the law would not change even though a portion of it had become dry land.’ Page 71 of 222 Mich.,192 N. W. 623, 624.

Independently considered, the first proposition is relatively unimportant. It is of little consequence that the meander line be considered as having definitely and conclusively marked the lake bed when it was run, whether it be so established by proof of fact, legal presumption, or judicial fiat, if subsequent changes of the water's edge would affect the title. But it should be examined because it constitutes the premise for the determinative conclusion that lake bed, so fixed, remains submerged in law after it becomes dry in fact.

Was the meander line a boundary between land and lake when run? It is well known that, in innumerable instances, as in that at bar, the meander line was not run at the water's edge in fact. It is also established that it is not a boundary in law. In St. Paul & P. Railroad Co. v. Schurmeier (1868) 7 Wall. 272, 286,19 L. Ed. 74, it was pointed out that, by the act of Congress providing for the survey, while the straight lines were given the force of boundaries, no mention was made of meander lines in the act; that they were a device of the surveyor for the purpose of reporting the ‘contents of the subdivision’ and to enable the surveyor general to make a plat required by law. They were run as merely general, not accurate, representations of the shore. Blodgett & Davis Lbr. Co. v. Peters, 87 Mich. 498, 49 N. W. 917,24 Am. St. Rep. 175;United States v. Lane et al., 260 U. S. 662, 43 S. Ct. 236, 67 L. Ed. 448. A patent from the government was intended to carry title to the water's edge. In the Schurmeier Case, the effect of the meander line as a boundary was directly in issue, was discussed at length in the briefs, and the court said:

‘Meander-lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of the land in the fraction subject to sale, and which is to be paid for by the purchaser.

‘In preparing the official plat from the field-notes, the meander-line is represented as the border-line of the stream, and shows, to a demonstration, that the water-course, and not the meander-line, as actually run on the land, is the boundary.’ Page 286 of 7 Wall., 19 L. Ed. 74.

In Hardin v. Jordan (1890) 140 U. S. 371, 380, 11 S. Ct. 808, 811, 35 L. Ed. 428, the court also said:

‘It has been the practice of the government from its origin, in disposing of the public lands, to measure the price to be paid for them by the quantity of upland granted, no charge being made for the lands under the bed of the stream, or other body of water. The meander lines run along or near the margin of such waters are run for the purpose of ascertaining the exact quantity of the upland to be charged for, and not for the purpose of limiting the title of the grantee to such meander lines. It has frequently been held, both by the federal and state courts, that such meander lines are intended for the purpose of bounding and abutting the lands granted upon the waters whose margins are thus meandered, and that the waters themselves constitute the real boundary.’

Authorities to like effect can be multiplied; a few of them, particularly including states on the Great Lakes, are: State v. Korrer, 127 Minn. 60, 148 N. W. 617, 1095, L. R. A. 1916C, 139;Doemel v. Jantz, 180 Wis. 225, 193 N. W. 393, 31 A. L. R. 969;Sizor v. Logansport, 151 Ind. 626, 50 N. E. 377,44 L. R. A. 814;City of Peoria v. Central Nat. Bank, 224 Ill. 43, 79 N. E. 296,12 L. R. A. (N. S.) 687; Black's Pomeroy on Water Rights, 471; Kinney on Irrigation and Water Rights (2d Ed.) 530, 547, 778; 9 C. J. p. 189; 4 R. C. L. p. 97; 23 A. L. R. 778, note.

Under the federal law when he bought, then, the purchaser from the government of public land on the Great Lakes took title to the water's edge. The state law became paramount on the title after it vested in a...