Kean v. Roby

• Decision Date: 24 January 1896
• Citation: 42 N.E. 1011,145 Ind. 221
• Parties: KEAN v. ROBY et al.
• Court: Indiana Supreme Court

145 Ind. 221

42 N.E. 1011

KEAN

v.ROBY et al.

Supreme Court of Indiana.

Jan. 24, 1896.

Appeal from circuit court, Lake county; William E. Piney, Special Judge.

Action by Sophia Conklin against Annie R. Kean and others to quiet title to realty. Annie R. Kean filed a cross complaint to quiet title in herself as against all parties to the action, and from a judgment for certain defendants she appeals. Affirmed.

W. P. Fennell, W. C. McMahan, A. L. Mason, and W. H. Latta, for appellant. Ed. Roby, J. W. Youche, and Miller, Winter & Elam, for appellees.

HOWARD, J.

This was an action to quiet title to real estate, brought by the appellee Sophia A. Conklin against the appellant and other defendants made appellees on this appeal. Various answers and cross complaints were filed by the appellant and by other defendants, and the cause was submitted to the court for trial, resulting in a finding and decree against the plaintiff. A new trial having been granted as of right under the statute, the cause was resubmitted to the court for trial upon the pleadings in the first trial. There was a special finding of facts on this second trial, with conclusions of law, and a decree against the plaintiff, and also against the appellant and others, and in favor of certain of the appellees; and the appellant, as also the plaintiff and others named, was enjoined from setting up or asserting any claims or title to the land in question. Many alleged errors are assigned by the appellant, most of which are irregular, and could be considered only as reasons for a new trial. Neither party, however, has given special attention to the assignment of errors, both preferring to discuss the controlling facts and the law in relation thereto. The land in controversy is situated in Lake county, in the extreme northwest corner of the state. It is described in the complaint as “lot number 5, in section 36, T. 38 N.; lots 8, 9, and 10 in section 1, T. 37 N.; and lots 5, 6, 7, and 8, in section 12, T. 37 N.; all in range 10 W., Lake county, Indiana, and containing 252.5 acres, more or less.” The appellant, in her cross complaint, made claim to the same land “in plaintiff's complaint described,” and asked that her title thereto be quieted as against the plaintiff and all of her codefendants, and that they be enjoined from setting up any claim thereto. The appellees, who are in possession of the lands in controversy, claim title under the original government survey, by virtue of patents from the United States to the state of Indiana and from the state to their remote grantors. Townships 38 and 37 N., range 10 W., in which the lands are situated, were originally surveyed in 1834, under authority of the United States land department, as shown by the field notes and plats made a part of the record. These townships are both fractional, lying next to the state line dividing Indiana from Illinois, and are in part covered by a body of water known as “Wolf Lake.” The appellees claim that title to all of these lands passed from the general government to the state of Indiana by the swamp-land act of September 28, 1850, subject only to identification and selection by the state, and approval thereof by the secretary of the interior. The patent from the United States to the state is dated March 24, 1853. In this patent it is recited that “the United States of America, in consideration of the premises and in conformity with the act of congress aforesaid, have given and granted, and by these presents do give and grant unto the said state of Indiana, in fee simple, subject to the disposal of the legislature thereof, the tracts of land above described.” The tracts so described include “the whole of fractional sections one, twelve, * * * all in township thirty-seven north, of range ten west; * * * also the whole of fractional section thirty-six, in township thirty-eight north, of range ten west.” The court found the title thus traced by appellees to be good, and held that they were entitled to continue in possession of the lands in dispute. The appellant contends that the bed of Wolf Lake, covering a part of the above-described sections as aforesaid, was not surveyed in the original survey of 1834, and shows that on representations to that effect made to the land department of the United States the commissioner of the general land office ordered a resurvey of the land within the meander lines of the lake, which resurvey was made in 1875. Appellant then claims that on such resurvey by the land department the lots in the lake bed became subject to entry and sale, and subject also to the right of appellant's remote grantors to locate “Sioux half-breed scrip” thereon; and she traces her title from patents issued for said lots to such remote grantors on such location of half-breed scrip. Appellees, on the other hand, contend that all said fractional sections, including the bed of the lake, were surveyed in 1834, and the lands and lots sold by the United States under such survey; so that, rightfully, the government had no such land to survey or sell when the order for the survey of 1875 was made and the lands in question attempted to be resold by the land department. As the appellant must succeed, if at all, on the strength of her own title, it will be sufficient to decide the contention here made. If the lands in controversy were, in fact, surveyed in 1834, and sold by the United States under such survey, then it is clear enough that the government had no authority or power to resurvey the lands in 1875, or to sell them over again, and appellant's title must wholly fail.

The annexed plats show the original survey, in 1834, of section 36 in township 38, and of sections 1 and 12 in township 37, and also the resurvey, in 1875, of that part of the bed of Wolf Lake in the same townships and sections, being all that is necessary to indicate the...