Knickerbocker Ice Co. v. Surprise

• Decision Date: 29 June 1912
• Docket Number: No. 7,482.,7,482.
• Citation: 53 Ind.App. 286,99 N.E. 58
• Parties: KNICKERBOCKER ICE CO. v. SURPRISE.
• Court: Indiana Appellate Court

53 Ind.App. 286

99 N.E. 58

KNICKERBOCKER ICE CO.

v.SURPRISE.

No. 7,482.

Appellate Court of Indiana, Division No. 2.

June 29, 1912.

On petition for rehearing. Petition overruled.

*58For former opinion, see 97 N. E. 357.

Doran & Conboy, Elias D. Salsbury, Benjamin O'Hara, and Roby & Watson, for appellant. Otto J. Bruce and August A. Bremer, for appellee.

IBACH, J.

Appellant urges that the court erred in holding that lot 2 of section 34 extended to the section line, and bases its contention upon the opinion in the case of Stoner v. Rice, 121 Ind. 51, 22 N. E. 968, 6 L. R. A. 387. In that case the court said: “The true doctrine to apply in the disposition of such land as is covered by the body of such lakes, we think, is that the government in making surveys included in such surveys all [our italics] the land within the district surveyed, and if there was a lake or large pond, which covered a part of a subdivision, it was meandered out, and the dry land in such subdivision designated as a fractional subdivision, or lot; that in the purchase of such fractional subdivision, or lot, the purchaser took title to it as a riparian owner, with the right to the land as the water receded within the boundary lines of the subdivision conveyed to the purchaser. In other words, the purchaser acquired title to all the land within the subdivision, though it was described as a fractional subdivision or lot. The authorized survey divided all the land within the district into subdivisions.”

In order to better present the questions involved in the discussion of the point raised by the petition for rehearing, we annex the following diagram, which fairly sets out the situation:

Image 1 (2.7" X 2.6") Available for Offline Print

A, B, C, and D, corners of section 34.

B, H, I, and C, corners of W. 1/2, section 35.

A, G, F, and E, corners of Schutz lands partitioned.

M, G, L, and K is lot 1, section 34.

L, F, J, and K is lot 2, section 34.

C, R, S, and T is lot 4, section 34.

N, O, P, and Q is lot 2, section 35.

X, approximate spot where trespass occurred.

As appellant points out to the court, if it were held that all the lots extended to the section line, the E. 1/2 of the N. E. 1/4 of section 34 would belong both to the owners of lots 1 and 2 and to the owner of lot 4. Manifestly such a result would be incorrect. On the other hand, if we apply the rule insisted upon by appellant, that the lots extend under the water only to the nearest subdivision line-that is, in the case of lots 1 and 2, the quarter quarter section line-then the E. 1/2 of the N. E. 1/4 of section 34 would not have been included in any portion of the survey. To reach this result would be as much an error as the former. There must be some rule which will allow us to escape this dilemma of adjudging that these lands were twice included in the survey, or were not included at all.

By the government system of land surveys, sections may be subdivided into subdivisions of various classes, namely, half sections, quarter sections, half quarter sections, and quarter quarter sections. U. S. Statutes, §§ 2395-2397 (U. S. Comp. St. 1901, pp. 1471-1473). Where the lands bordered on a lake, fractional subdivisions were laid out and called lots, the number of acres contained therein being designated by the number of acres of dry land; but it is held by the case of Stoner v. Rice, supra, and by the cases cited...