Lattig v. Scott

• Decision Date: 11 January 1910
• Citation: 17 Idaho 506,107 P. 47
• Parties: C. P. LATTIG, Respondent, v. JOHN E. SCOTT, Appellant, and ROBERT GREEN, Respondent
• Court: Idaho Supreme Court

107 P. 47

17 Idaho 506

C. P. LATTIG, Respondent, v. JOHN E. SCOTT, Appellant, and ROBERT GREEN, Respondent

Supreme Court of Idaho

January 11, 1910

RIPARIAN RIGHTS-COMMON-LAW RULE OF TITLE-UNSURVEYED ISLANDS-PLAT OF SURVEY PRIMA FACIE EVIDENCE-GOVERNMENT BOUND BY SURVEY AND PLAT-TITLE TO UNSURVEYED ISLANDS.

1. The common-law rule of riparian ownership has been adopted in Idaho, and under and by that rule a riparian proprietor on a fresh-water stream, whether navigable or non-navigable, takes title to the thread of the stream.

2. As a general rule, the omission on the part of the government to take notice of an existing island or tract of land between the meander line along a stream of fresh water and the stream itself which it purports to meander, and the subsequent approval of a survey thereof and the plats of such survey, is to be taken as evidence that the island or strip of land beyond such meander line was intended to pass as a part of and incident to the surveyed abutting upland.

3. Ordinarily the government is bound by its own plats, and a patent issued referring to the official plats amounts to an adoption of such plats as a part of the description, and the natural monuments therein designated and shown are ordinarily controlling as to the true boundary line. The plat and field-notes made from a survey of public lands which has been approved and adopted by the government showing fractional subdivisions along a meandered stream of fresh water, showing all the dry land as having been surveyed and the balance of the legal subdivisions as covered by the waters of the stream, constitute prima facie evidence that no island of which the government takes notice existed opposite such fractional subdivisions at the time the survey was made.

4. Where P. and G. purchased fractional subdivisions of the public domain meandering the Snake river and took title by patents issued in 1894 and 1895, respectively, for such tracts of land, and the description contained in such conveyances referred to an official survey made in 1868 and the plat thereof on file in the land office, held, that the patentees took title to the respective portions of an island extending along the course of the stream and between the meander line and the thread of the stream.

(Syllabus by the court.)

APPEAL from the District Court of the Seventh Judicial District of the State of Idaho, for Canyon County. Hon. Ed L. Bryan Judge.

Action in ejectment. Judgment in favor of the plaintiff and the defendant Green, and against the defendant Scott. Defendant Scott appealed from the judgment and an order denying a motion for a new trial. Judgment affirmed.

Judgment of the trial court affirmed, with costs in favor of respondents.

Richards & Haga, for Appellant.

Whenever the question in any court, state or federal, is whether the title to land which has once been the property of the United States has passed from the federal government, that question must be resolved by the laws of the United States. (Wilcox v. Jackson, 13 Pet. 517, 10 L.Ed. 273; Irvine v. Marshall, 20 How. 558, 15 L.Ed. 994; Gibson v. Chouteau, 13 Wall. 92, 20 L.Ed. 534.)

The courts of the United States will construe the grants of the general government without reference to the rules of construction adopted by the states for their grants, but whatever incidents or rights to the soil under navigable waters attach to the ownership of land conveyed by the government will be determined by the states, subject to the condition that their rules do not impair the efficacy of the grants or the use and enjoyment of the property by the grantee. (Shively v. Bowlby, 152 U.S. 1, 14 S.Ct 548, 38 L.Ed. 331, 347; St. Anthony etc. Co. v. St Paul, 168 U.S. 349-362, 18 S.Ct. 157, 42 L.Ed. 497, 502; Packer v. Bird, 137 U.S. 661, 11 S.Ct. 210, 34 L.Ed. 819.)

Islands in existence at the time of the survey of the mainland and prior to the admission of the state into the Union are subject to survey and grant by the government as other public lands, and do not pass to the grantees of the mainland opposite the island or to the state. (United States v. Mission Rock Co., 189 U.S. 391, 23 S.Ct. 606, 47 L.Ed. 865; Mission Rock Co. v. United States, 109 F. 763, 48 C. C. A. 641; 1 Farnham on Waters, p. 50; Granger v. Swart, 1 Woolw. 88, F. Cas. No. 5685; Packer v. Bird, 71 Cal. 134, 11 P. 873, 137 U.S. 661, 11 S.Ct. 210, 34 L.Ed. 819; Horne v. Smith, 159 U.S. 40, 15 S.Ct. 988, 40 L.Ed. 68.)

The government is not required to survey an island in navigable waters at the time the mainland is surveyed. And the failure of the surveyor to show such island on the official plats does not operate to pass title from the government to the riparian owner, or estop it from making claim thereto when its attention is directed to it. (Kirwan v. Murphy, 189 U.S. 35, 23 S.Ct. 599, 47 L.Ed. 698; Niles v. Cedar Point Club, 175 U.S. 300, 20 S.Ct. 124, 44 L.Ed. 171; Moffat v. United States, 112 U.S. 24, 5 S.Ct. 10, 28 L.Ed. 623; Whitside v. United States, 93 U.S. 247, 23 L.Ed. 882.)

The executive department has not the power to strip the government of its public lands by a mere method of survey, and the running of a meander line does not affect the title of the United States to the land beyond the meander, and one receiving a patent for the full acreage paid for will not be heard to insist that by reason of an error on the part of the surveyor he is entitled to more land than he paid for. (Niles v. Cedar Point Club, supra; Barnhart v. Ehrhart, 33 Ore. 274, 54 P. 195; Horne v. Smith, 159 U.S. 40, 15 S.Ct. 988, 40 L.Ed. 68; Security Land etc. Co. v. Burns, 193 U.S. 167, 24 S.Ct. 425, 48 L.Ed. 662; Security Land etc. Co. v. Burns, 87 Minn. 97, 94 Am. St. 684, 91 N.W. 304, 63 L. R. A. 157; French Glenn Livestock Co. v. Springer, 35 Ore. 312, 58 P. 102; French Glenn Livestock Co. v. Springer, 185 U.S. 47, 22 S.Ct. 563, 46 L.Ed. 800; Carr v. Moore, 119 Iowa 152, 97 Am. St. 292, 93 N.W. 52; Grant v. Hemphill, 92 Iowa 218, 59 N.W. 263, 60 N.W. 618; Lammers v. Nissen, 4 Neb. 245; Bissell v. Fletcher, 19 Neb. 725, 28 N.W. 303; James v. Howell, 41 Ohio St. 696.)

The statutes of the United States relating to the disposal of the public domain confer no power to sell unsurveyed public land; neither do they invest the courts with authority to enlarge the grants actually specified in the patents of the United States. (Barnard v. Ashley, 18 How. 43, 15 L.Ed. 285; Grogan v. Knight, 27 Cal. 519; United States v. Curtner, 38 F. 1; Shiveley v. Bowlby, supra; Chas. River Bridge v. Warren Bridge, 11 Pet. 420, 544-548, 9 L.Ed. 773, 822-824; Central Trans. Co. v. Pullman's Palace Car Co., 139 U.S. 24, 11 S.Ct. 478, 35 L.Ed. 55.)

An island in existence at the time of the admission of the state into the Union, consisting of 138 acres of dry land and adapted to the ordinary agricultural uses, and not subject to overflow, is not part of the river bed, and title thereto does not pass by implication or legal intendment to either the state or the riparian owner, but may be claimed, surveyed and sold by the government as other public lands. (Mission Rock Co. v. United States, 109 F. 763, 48 C. C. A. 641; S. C., 189 U.S. 391, 23 S.Ct. 606, 47 L.Ed. 865, and cases cited supra.)

A grantee of the government of fractional lots containing within the meander lines the entire acreage for which the government received pay does not take title under his patent to an unsurveyed island (subsequently claimed and surveyed by the government) under the facts of this case. In such cases the riparian owner will take only to the meander thread of the nearest channel of the river. (Steinbuchel v. Lane, 59 Kan. 7, 51 P. 886; Shoemaker v. Hatch, 13 Nev. 261.)

Where the land department, when its attention is called to an unsurveyed island containing 138 acres of upland situated in a navigable river and surrounded by large and permanent channels of running water during all seasons of the year, causes it to be surveyed and sold as other public lands, its decision that the island is part of the public domain will be sustained by the courts. (United States v. Moore, 95 U.S. 760, 24 L.Ed. 588; Whitaker v. McBride, 197 U.S. 510, 25 S.Ct. 530, 49 L.Ed. 857; White v. Whitcomb, 13 Idaho 490, 512-514, 90 P. 1080; Heath v. Wallace, 133 U.S. 582, 11 S.Ct. 380, 34 L.Ed. 1068; 32 Cyc. 1020 et seq.)

Ira W. Kenward, and Karl Paine, for Respondents.

The riparian owner takes title to the thread of the stream, both in navigable and non-navigable rivers, subject to an easement for the use of the public. (Johnson v. Hurst, 10 Idaho 308, 77 P. 784; Shields v. Johnson, 10 Idaho 481, 79 P. 391; Moss v. Ramey, 14 Idaho 598, 95 P. 513; Johnson v. Johnson, 14 Idaho 561, 95 P. 499; Shaw v. Oswego Iron Co., 10 Ore. 379, 45 Am. Rep. 146; 15 New International Ency. 49.)

AILSHIE, J. Stewart, J., concurs. Sullivan, C. J., dissents.

OPINION

AILSHIE, J.

STATEMENT OF CASE.

This action was instituted by plaintiff to quiet his title to a tract of land commonly known by the designation of "Poole Island" in the Snake river. The plaintiff claimed a part of the island by reason of owning the upland which meandered the river, and claimed the balance of the island against the owner of the upland by reason of adverse possession. The defendant, Scott, who is appellant in this case, claimed that while the island was public unappropriated lands he entered upon the same, and that the title to the land is in the United States government, and that the plaintiff has no title or right of possession in or to the property.

The facts of the case are as follows: This land was surveyed under the order and direction of the commissioner of the general land office of the government in September, 1868. The field-notes to sections 10, 15...