Lee Wilson & Co. v. United States

• Decision Date: 04 November 1915
• Docket Number: 4278.
• Parties: LEE WILSON & CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

227 F. 827

LEE WILSON & CO. v. UNITED STATES.

No. 4278.

United States Court of Appeals, Eighth Circuit.

November 4, 1915

Charles T. Coleman, of Little Rock, Ark. (William M. Lewis, of Little Rock, Ark., on the brief), for appellant.

W. N Mills, Sp. Asst. Atty. Gen., of San Francisco, Cal. (W. H Martin, U.S. Atty., of Hot Springs, Ark., and J. A. Tellier Sp. Asst. Atty. Gen., of Little Rock, Ark., on the brief) for appellee.

Henry D. Ashley, of Kansas City, Mo., amicus curiae.

Before SANBORN and CARLAND, Circuit Judges, and LEWIS, District Judge.

CARLAND Circuit Judge.

A correct decision of the issues involved in this case is of the greatest importance. We think the case is mainly ruled by Little v. Williams, 231 U.S. 335, 34 Sup.Ct. 68, 58 L.Ed. 256; Chapman & Dewey Lumber Co. v. St. Francis Levee District, 232 U.S. 186, 34 Sup.Ct. 297, 58 L.Ed. 564; Id., 234 U.S. 667, 34 Sup.Ct. 906, 58 L.Ed. 1526; Security Land & Exploration Co. v. Burns, 193 U.S. 167, 24 Sup.Ct. 425, 48 L.Ed. 662; French Glenn Live Stock Co. v. Springer, 185 U.S. 47, 22 Sup.Ct. 563, 46 L.Ed. 800; Niles v. Cedar Point Club, 175 U.S. 300, 20 Sup.Ct. 124, 44 L.Ed. 171.

The bill was filed to quiet title to one body of land containing 853.6 acres, composing parts of sections 22, 26, and 27, in township 12 north, range 9 east, in Mississippi county, Ark. Three individuals were joined with appellant as defendants below, but they disclaim. The lands became a part of the public domain in 1803 by acquisition from the French republic, and of course remained such, unless the government had parted with its title. The appellant claims that it had done so, and that title thereto is now vested in it. It puts forth several reasons to sustain this claim; and those reasons are these:

1. That by virtue of the provisions of Act Sept. 28, 1850 (9 Stat. 519), and the procedure therein authorized, which was regularly taken, title to said lands passed to the state of Arkansas and thereafter that title became vested in appellant.

The facts relative to that claim are these: In 1839 and 1840 the township (township 12) was surveyed and established, and thereafter in 1841 the subdivisional lines were located and the township sectionized; that after the passage of the Swamp Land Act, supra, and in 1853, the state selected the entire township, as authorized by the act, and thereafter, and on the 27th day of September, 1858, all of said township was conveyed by patent to the state. The survey of 1841 meandered the lands in controversy as being a lake. The notes of the survey report the lake and also a bayou, as its outlet to the southwest, as navigable. The lands were platted in accordance with the survey showing the lake as meandered. It may be conceded that the selection as made by the Governor of the state was of the entire township, and that if the description in the patent had corresponded with the terms of the selection, the lands in controversy, which were represented as being then covered by the lake, would have passed under the patent. The description in the selection is in these words:

---------------------------------------------------------------------------- Surveyed Unsurveyed Total Parts of Section Township Range Area Area Area Section Acres Hdths. Acres Hdths. Acres Hdths. ---------------------------------------------------------------------------- Township 12 9 (Except Section 16) 14,565.03 ----------------------------------------------------------------------------

But when the patent was issued some five years later the description therein given is this:

'Township twelve (12) north, range nine (9) east. The whole of the township except section sixteen (16), containing fourteen thousand five hundred sixty-five acres and three-hundredths of an acre, according to the official plats of survey of the said lands returned to the General Land Office, by the Surveyor General.'

And the patent with the lands thus described having been received and accepted by the state rendered the terms used in describing the lands in the selection irrelevant and immaterial in thereafter determining what lands passed by the patent; so the terms of the selection may be omitted from further consideration. Looking, then, to the patent, it follows that the lands which were meandered out and shown upon the plat as a lake did not pass under the patent unless the lake did in fact exist. Little v. Williams, 231 U.S. 335, 34 Sup.Ct. 68, 58 L.Ed. 256; Lumber Co. v. District, 232 U.S. 186, 34 Sup.Ct. 297, 58 L.Ed. 564.

The trial court held that a preponderance of the evidence went strongly to establish that the lands were not submerged lands and that there was not a lake as shown upon the plat at the time of the survey; that no depression can be noticed in the meandered area, and that there is no appreciable difference in the elevation between the lands on the two sides of the meander line. It further found that there is now a heavy growth of large, living trees on the lands; that there was testimony that many of the trees were over 70 and some over 200 years old, and that they could not have grown on submerged lands; and said that it 'is convinced beyond a reasonable doubt that there was no permanent body of water on the land meandered at the time the original survey was made, nor for a long period before that time, nor at the time of the passage of the act of 1850, or at the time the state made its selection.'

The trial court also called attention to the fact that the Secretary of the Interior in 1908, after a hearing of a...