John Scott v. Charles Lattig

• Decision Date: 03 February 1913
• Docket Number: No. 86,86
• Citation: 227 U.S. 229,33 S.Ct. 242,57 L.Ed. 490
• Parties: JOHN E. SCOTT, Plff. in Err., v. CHARLES P. LATTIG and Robert Green
• Court: U.S. Supreme Court

227 U.S. 229

33 S.Ct. 242

57 L.Ed. 490

JOHN E. SCOTT, Plff. in Err.,

v CHARLES P. LATTIG and Robert Green.

No. 86.

Argued December 13, 1912.

Decided February 3, 1913.

Messrs. Oliver O. Haga, James H. Richards, and McKeen F. Morrow for plaintiff in error.

[Argument of Counsel from pages 230-236 intentionally omitted] Messrs. Karl Paine and Ira W. Kenward for defendants in error.

[Argument of Counsel from pages 236-239 intentionally omitted] Mr. Justice Van DeVanter delivered the opinion of the court:

This was a suit in the district court of Canyon county, Idaho, to quiet the title to Poole island in the Snake river. The plaintiff, Lattig, claimed the northern part by reason of his ownership of lands on the east bank of the river, and rested his claim to the southern part upon adverse possession. One of the defendants, Scott, claimed the entire island under the homestead law of the United States, and the other defendant, Green, claimed the southern part by reason of his ownership of lands on the east bank of the river adjoining those of Lattig. Following a trial of the issues, a decree was entered sustaining Lattig's claim to the northern part and Green's to the southern, and quieting their titles against the claim of Scott. The supreme court of the state affirmed the decree (17 Idaho, 506, 107 Pac. 47), and the case was then brought here.

The material facts are as follows: Snake river is a navigable stream, and at the place in question is the boundary between the states of Oregon and Idaho. It flows northward past Poole island in two channels, one on either side, and has a fall of 6 feet from one end of the island to the other. The channel on the western or Oregon side is about 1,000 feet wide, and the one on the eastern or Idaho side is approximately 300 feet. The island is on the Idaho side of the thread of the stream, is over a mile in length, is from 500 to 1,200 feet in width, and has an area of 138.15 acres. It has well-defined banks extending from 3 to 5 feet above high water, is mostly covered with a growth of wild grass, sage brush and small timber, bears undoubted evidence of permanency and of having been there many years, and concededly was in the same condition as now in 1880, which was several years before Idaho was admitted into the Union, and before the lands on the east bank of the river passed into private ownership. Those lands were surveyed in 1868, and the field notes and plat of the survey showed that the bank on that side of the river was meandered in the usual way, and that the sections and subdivisions bordering thereon were fractional. The island was not mentioned in the field notes or plat. Lattig and green severally own the fractional subdivisions on the east bank opposite the island under United States patents issued in 1894 and 1895, which describe them as containing 73.30 and 98.75 acres, respectively, 'according to the official plat of the survey of said lands returned to the General Land Office by the Surveyor General.' The northern part of the island, which is opposite the lands of Lattig, contains 54.75 acres, and the southern part, which is opposite the lands of Green, contains 83.40 acres. Scott settled upon the island, as unsurveyed public land, in the early part of 1904, with the purpose of acquiring the title under the homestead law of the United States (see act May 14, 1880, 21 Stat. at L. 140, chap. 89, § 3, U. S. Comp. Stat. 1901, p. 1392; Rev. Stat. § 2266), and has ever since resided on and occupied the island and improved and cultivated portions of it. In 1906 it was surveyed as public land by direction of the Commissioner of the General Land Office, and after this survey was approved and the plat filed Scott tendered, in the regular way, at the proper land office, an application to enter the island as a homestead in virtue of his prior settlement, and the application was duly accepted. It is said in the brief in his behalf that after the trial in the district court his homestead claim was carried to completion and a patent was issued to him; but as this is not shown on the record, it may be passed without other notice.

As it is manifest that the island, if in existence at the time of the survey in 1868, was then public land of the United States, and also that, if it continued to be public land in 1904, Scott initiated and acquired a valid claim to it under the homestead law, we will come at once to the reasons advanced for holding, as did the state court, that it ceased to be public land before 1904; viz., its omission from the survey of 1868, the admission of Idaho as a state in 1890, and the disposal of the lands on the east bank of the river in 1894 and 1895.

In making the survey of 1868 it was the duty of the surveyor, if the island was there at the time, to ascertain its exact location, to meander its exterior boundary, and to enter both in the field notes (Manual of Surveying Instructions of 1855, pp. 12-14; act of May 30, 1862, 12 Stat. at L. 409, chap. 86); and therefore the absence of such an entry, as also of any representation of the island on the plat constructed from the field notes, naturally suggests that the island may not then have been in existence. But this suggestion is effectually refuted by the size, elevation, and appearance of the island, the character and extent of the vegetation thereon, and the conceded fact that in 1880, only twelve years after the survey, it was in the same condition as now. That it was there at the time of the survey seems certain, although that is not so important as its existence when Idaho became a state. Of course, the error in omitting it from the survey did not devest the United States of the title, or interpose any obstacle to sur- veying it at a later time. Neither was the error calculated to induce purchasers of the fractional subdivisions on the east bank to believe that by paying for the 73.30 and 98.75 acres in those tracts they would get, respectively, 54.75 and 83.40 acres more on the island on the other side of the 300-foot channel. Horne v. Smith, 159 U. S. 40, 40 L. ed. 68, 15 Sup. Ct Rep. 988; Niles v. Cedar Point Club, 175 U. S. 300, 306, 44 L. ed. 171, 173, 20 Sup. Ct. Rep. 124.

Coming to the effect to be given to the admission of Idaho as a state and to the disposal of the fractional subdivisions on the east bank, it is well to repeat that Snake river is a nabigable stream, for there is an important difference between...