Hobart v. Hall

• Decision Date: 31 August 1909
• Citation: 174 F. 433
• Parties: HOBART v. HALL et al.
• Court: U.S. District Court — District of Minnesota

174 F. 433

HOBART v. HALL et al.

United States Circuit Court, D. Minnesota, Fourth Division.

August 31, 1909

The above-entitled cause came on for trial without a jury, a jury having been expressly waived by the parties, on the 2d day of March, A.D. 1909, at the courtroom in the federal building in the city of Minneapolis in said district. The plaintiff appeared by her attorney, Frederick W. Reed, Esq.; the defendants by their attorneys, Frank Healy, Esq., Albert C Finney, Esq., and Geo. W. Armstrong, Esq.

The court having heard the evidence and arguments of counsel, and having read the briefs filed, and having duly considered the same, and the pleadings herein, now makes and files the following findings of fact and conclusions of law:

Findings of Fact.

1. That at the time of the commencement of this action plaintiff was and ever since has been, a resident and citizen of the state of Illinois. That defendant city of Minneapolis is a municipal corporation, duly organized under the laws of the state of Minnesota. That at the time of the commencement of this action each defendant was, and ever since has been, a citizen of the state of Minnesota, and a resident of the Fourth division of the district of Minnesota. That the amount in controversy herein, exclusive of interest and costs exceeds the sum of $2,000.

2. That the United States in 1847 duly made a survey of that part of section 15, township 29, range 24, in what is now Hennepin county, state of Minnesota, lying on the easterly side of the Mississippi river, and by patent dated March 24, 1849, and recorded in the office of the register of deeds of Hennepin county, Minn., September 10, 1858, in Book M of Deeds, on page 338, duly conveyed to Pierre Bottineau lot 3 of said section. That in 1853 said United States duly made another survey, completing the survey of said entire section 15 on both sides of said river and including said river. That plats of both of said surveys were duly made and filed. That said Pierre Bottineau thereafter duly platted a portion of said lot 3 as 'Bottineau's addition,' which plat was duly recorded in the office of the register of deeds of said Hennepin county, in Book A of Plats, on page 4, and in Book 23 of Plats, on page 19. That through mesne conveyances the plaintiff herein, on April 1, 1896, became, and ever since has been, the owner in fee of that part of said Bottineau's addition known as 'Boom Landing,' and more particularly described as follows, to wit: Commencing at the intersection of the northeasterly line of lot 5 in Auditor's subdivision No. 44 in Hennepin county, Minn produced, and the northwesterly line of Eighth avenue northeast; thence north, 60 degrees west, to a point 12.66 chains north, 60 degrees west, from the most easterly corner of said lot 5; thence south 14 degrees west to the Mississippi river; thence southerly along said river to said northwesterly line of said Eighth avenue northeast produced thence northeasterly along said line to the place of beginning, together with all riparian rights in and attached to said premises, between the shore line thereof and the middle thread of said river. That said premises are on the easterly side of the Mississippi river, in the city of Minneapolis, just north of the easterly end of Plymouth avenue bridge, which crosses said river from the westerly end of Eighth avenue northeast to the easterly end of Plymouth avenue.

3. That said plats of said surveys of 1847 and 1853 show said lot 3 meandered on the Mississippi river and show said river as the boundary thereof on the southwesterly side thereof. That the plat of said Bottineau's addition shows said Boom Landing as bounded on the southwesterly side by the said river, and said river is the boundary thereof on the southwesterly side thereof.

4. That at the time said surveys in 1847 and 1853 were made and said plats filed there was no island in the Mississippi river between plaintiff's above-described premises and the west shore of said river, and no island was shown on either of said plats.

5. That about the year 1875, or a little prior thereto, there began to appear above the surface of the water in the river opposite plaintiff's premises, at several different points, separated from each other by stretches of water, the island, afterwards known as 'Hall's Island,' the title and right to the possession of a portion of which is here in controversy. That when this island first began to appear it was, at these several different points, above the surface of the water at ordinary low stages thereof, and at ordinary high stages it was entirely submerged. That by gradual deposits of earth and sand and other material from the water of the river the exposed portions of said island grew gradually in area, extent, and height, so that in a few years the detached portions thereof became connected together in one continuous island, which island showed continuously thereafter above the water at all ordinary stages except extreme high water during the spring freshets. That the growth of said island continued in like manner until the year 1902 (in which year the patent from the state to defendant Hall hereinafter referred to was issued), at which time it was more or less covered with willows, brush, and cottonwood trees, and was about 1 1/2 acres in extent. That this island was formed, by gradual deposits on the bed of the river of earth and sand and other material from the water thereof, at and about a line of boom piers which had been placed in the river at a distance of about 200 feet from plaintiff's shore line, and where the water was about 8 or 10 feet deep, which piers had been put in for the purpose of attaching booms thereto to hold and control logs coming down the river. That said island was formed on the east side of the middle thread of the said Mississippi river, and the main navigable channel of said river has since the formation of said island always been on the west side thereof; said island lying between said main navigable channel and plaintiff's shore line. That the width of the open navigable channel of said river on the west side of said island is about 600 feet, and the depth thereof for a large part of said distance is from 10 to 15 feet. That while said island at the time of its formation as above set forth was, and ever since has been, separated from plaintiff's shore line by the water of the river for a distance of from about 75 to about 200 feet, said water, or channel, if it may be called a 'channel,' varying in width at different points between said limits, the bottom of said channel has been gradually filling up with earth and sand and other material from the water of the river, so that the depth of the water therein was, at times of ordinary low water, in the year 1902 and for some years prior thereto, only about 2 feet at any point from the shore of the island to the shore of the mainland at the shallowest part thereof, and about from 3 to 5 or 6 feet at the deepest part thereof, and in the year 1908 only from about 1 1/2 to about 2 feet at the shallowest part, and from about 3 to 4 feet at the deepest part, except where the same had been artificially deepened.

6. That in the year 1902 the auditor, or land commissioner, of the state of Minnesota, caused a survey to be made of said island, and thereafter, on the 13th day of November, 1902, there was, for a valuable consideration, issued to defendant Hall a patent from the state of Minnesota purporting to convey said island to said defendant Hall as swamp land; said island being described in said patent as lot No. 9 of the state subdivision of section 15, in township 29 north of range No. 24 west of the Fourth principal meridian, containing 80 of an acre, more or less, according to state survey, and situated in the county of Hennepin and state of Minnesota according to the official plats of the surveys of the said lands, on file in the state land office, which patent was duly recorded in the office of the commissioner of state lands in Patent Record A, Swamp Land, on page 1, and in the office of the register of deeds of Hennepin county, Minn., in Book 575 of Deeds, p. 15. That no patent from the United States to the state of Minnesota was ever issued for said island, nor was there ever any swamp land selection list of lands filed showing said island.

7. That thereafter, on the 14th day of November, 1902, the defendant P. M. Hall and Anna C. Hall, his wife, for a valuable consideration, duly made, executed and delivered to the defendant city of Minneapolis a deed purporting to convey said island to said defendant city of Minneapolis, in trust, however, as expressed in said deed, 'for the use and purpose, and upon the terms, conditions, reservations, and agreements herein set forth and declared, to wit: For the location and operation of a public crematory for the destruction of garbage, refuse, and other waste matter of the city of Minneapolis. And if at any time hereafter said premises shall not be, or shall cease to be used for the purpose above specified, or are diverted to other uses and purposes, then and in that event said premises and all additions, extensions, and accretions thereto shall revert to, and shall be and become the property of the grantors herein, and of their heirs and assigns'-- which said deed was duly recorded in the office of the register of deeds of Hennepin county, Minn., on the 27th day of November, 1903, in Book 575 of Deeds, p. 16. That thereafter, on the 4th day of June, 1906, said defendant P. M. Hall and Anna C. Hall, his wife, for a valuable consideration, duly made, executed, and delivered to the defendant city of Minneapolis another deed purporting to convey said island to the said defendant city of Minneapolis, in...