Kirwan v. Murphy

• Decision Date: 27 September 1897
• Docket Number: 936.
• Citation: 83 F. 275
• Parties: KIRWAN et al. v. MURPHY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

83 F. 275

KIRWAN et al. v. MURPHY et al.

No. 936.

United States Court of Appeals, Eighth Circuit.

September 27, 1897

John R Van Derlip (Edward C. Stringer was with him on the brief) for appellants.

M. H Stanford, for appellees.

Before SANBORN and THAYER, Circuit Judges, and RINER, District Judge.

RINER District Judge.

This was a bill in equity filed by Simon J. Murphy and others, the appellees, for an injunction restraining and enjoining P. H. Kirwan and Thomas H. Croswell, the appellants, from making a survey of certain lands surrounding Cedar Island Lake, in township 57 N., of range 17 W. of the fourth Principal Meridian, in St. Louis county, Minnesota the survey of the lands having been ordered by the land department of the United States. The defendant Kirwan is the United States surveyor general for Minnesota, and the defendant Croswell is a deputy surveyor, with whom a contract has been made by order of the commission of the general land office to make the survey. At the time the bill was filed, the circuit court directed that an order to show cause be served upon the defendants, and issued a temporary restraining order, restraining the defendants from entering into or perfecting a contract for the survey until the further order of the court. Subsequently, a motion to discharge the order to show cause was made by the defendants and was overruled. Thereupon the defendants filed their joint and several answer, supported by affidavit, and the cause came on for hearing upon the order to show cause why a temporary injunction should not issue. The court directed a temporary injunction to issue, and it is from this order that the appellants appealed.

The record discloses substantially the following facts: The township was surveyed by the United States government in 1876, and the plat made pursuant to the survey was approved by the government as the official plat of the township on June 11, 1879. All of the lands in the township were, according to the government plat, disposed of and patented by the government to divers persons between December, 1879, and March, 1884, the following lands being owned by the appellees:

'Commencing at the southwest corner of lot four (4) of the northwest quarter (N.W. 1/4) of section one (1), and running thence north, on the section line between said section one (1) and two (2), and to the northwest corner of said section one (1); thence west, on the north line of said township, to a point where said town line first meets the shore of Cedar Lake; thence turning south, and following the shore of said lake, to a point where the south line of said lot four (4) in said section one (1), extending westerly into said section two (2), first meets the water of said lake; thence easterly, on said last-mentioned line, to the place of beginning,-- the same being lots one (1), two (2), and three (3) of said section two (2), according to the government plat thereof; also commencing on the west shore of said lake at a point in said section three (3) where the west shore of said lake crosses said north town line; thence following said town line to the northeast corner of lot two (2) of section four (4); thence running southerly, on the east line of said lot two (2) in said section four (4), to the southeast corner thereof; thence westerly, along the south boundary line of said lot two (2), to the southwest corner thereof; thence southerly, and to the center of said section four (4); thence southeasterly, on a straight line from the center of said section, to the southeast corner thereof, until it intersects the westerly shore of said lake on said section four (4); thence in a northerly direction, along the shore of said lake, to the place of beginning,-- the same being lots one (1) and two (2) of section three (3), lot one (1) of section four (4), and a portion of lots six (6), seven (7), and the whole of lot eight (8) in said section four (4); also commencing at a point in the section line between sections four (4) and nine (9), at a point where the westerly shore of said lake crosses said line; thence westerly, on said section line, and to the northwest corner of said section nine (9); thence south, on the west line of said section nine (9), to the southwest corner of the northwest quarter (N.W. 1/4) of the southwest quarter (S.W. 1/4) of said section nine (9); thence following the south line of said last-described line, and the extension thereof, until it intersects the center line running north and south through section ten (10); thence north to the center of said section ten (10); thence easterly, on the center line of said section ten (10), to the northwest corner of the southwest quarter of section eleven (11); thence south, on the west line of section eleven (11), to the southwest corner of the northwest quarter (N.W. 1/4) of the southwest quarter (S.W. 1/4) of said section eleven (11); thence east to the southeast corner of the northwest quarter (N.W. 1/4) of the southwest quarter (S.W. 1/4) of said section eleven (11); thence north until it intersects the southerly meander line of said lake; thence turning at right angles to said meander line, and run to the shores of said lake: thence westerly, and following the shores of said lake, to the place of beginning.'

The government plat is erroneous in many instances, errors being general throughout the entire township. In the northern portion of the township, Cedar Island Lake is much smaller than shown on the official plat, thus making the fractional lots owned by the appellees, lying about and bordering on the lake, much larger than they appear on the plat. The order for a resurvey covers but a small portion of the township, being only for the fractional lots bordering on Cedar Island Lake in sections 2, 3, 4, 9, 10, and 11. It is not insisted that the appellees or any of their grantors had knowledge of any fraud in connection with the original survey from which the government plat was made. The lands in controversy in this case are described in the patents as fractional lots according to the official plat of the survey. In 1893, certain parties having settled on portions of these fractional lots, application was made by them to the commissioner of the general land office for a survey thereof, and denied. An appeal was taken from the decision of the commissioner of the general land office to the secretary of the interior, and upon a hearing an order was made by the secretary of the interior directing a survey of the portions of the fractional lots lying between the actual waters of Cedar Island Lake and the meander line as shown on the plat. The greater portion of the land is covered by valuable pine timber, and it is insisted by the appellees that a new survey would necessitate cutting a clear transit line through the heavy timber; that the timber would thereby be destroyed; that they would suffer great and irreparable injury, and that a cloud would be cast upon their title.

The government survey made in 1876, upon which the patents were issued, laid down a meander line next to the lake, and the plat of the survey returned to the general land office, and referred to in the patents for identification of the lands granted, exhibited the granted tracts as actually bordering upon the lake. The patents do not contain all of the particulars of the survey, but the grant of the lands is recited to be according to the official plat of the survey returned to the general land office by the surveyor general thereby adopting the plat as a part of the instrument. Meander lines are run along or near the margin of nonnavigable streams and inland lakes for the purpose of ascertaining the exact quantity of the upland to be charged for when the land is sold by the government, and not for the purpose of limiting the title of the grantee to such meander lines. The meander lines are intended for the purpose of bounding and abutting lands granted upon the waters whose margins are thus meandered, and the waters themselves, not the meander line, constitute the real...