Little v. Williams

Decision Date22 June 1908
Citation113 S.W. 340
PartiesLITTLE v. WILLIAMS et al.
CourtArkansas Supreme Court

The plaintiff claims title to the land through the following chain: First. United States to state of Arkansas, act of Congress dated September 28, 1850 (chapter 84, 9 Stat. 519), donating swamp and overflowed land. Second. State of Arkansas to Board of Directors of St. Francis Levee District, act of General Assembly dated March 29, 1893 (Laws 1893, p. 172), donating all lands in the district owned by the state. Third. Board of Directors of St. Francis Levee District to plaintiff, deed dated March 11, 1903.

The defendants are the owners by mesne conveyances running back to the state of Arkansas and the United States of the fractional sections, according to government survey, of land bordering on the meandered line of Walker's Lake, and claim title to the lands in controversy by virtue of their alleged riparian rights as such owners. Walker's Lake is, and at the time of the government survey was, a shallow nonnavigable lake. The testimony is conflicting as to the true boundaries of the lake and the character of the territory now in controversy — whether it was water or swamp land — at the time of the government survey. Testimony introduced by the plaintiff tends to establish the fact that the territory was swamp land at that time; and the testimony of defendants' witnesses tends to show that at that time the waters of the lake extended up to the meandered lines of the survey, but have since then receded so as to leave the land dry.

The parties, in addition to introducing the plats and field notes of the government survey and depositions of witnesses, entered into the following written agreement as to facts, which writing was a part of the record: "In order to avoid labor and expense in taking testimony, it is agreed by counsel representing defendants that all of the surveyed lands in the vicinity and locality of what would be south ½ of section 25, the whole of section 36, township 16, range 12 east, and northwest ¼ and south ½ of section 31, township 16, range 13 east, Mississippi county, Arkansas, if same were surveyed, were in September, 1850, swamp and overflowed lands, and passed to the state of Arkansas, under the grant of the United States, of date September 28, 1850, and that the townships including Walker's Lake, as meandered on the map, were included by the Secretary of the Interior of the United States government in the list of lands prepared by him and forwarded by him to the Governor of Arkansas, showing the lands which passed to the state under the grant of 1850, and that said lands embraced in said list were subsequently covered by patents from the government of the United States. And it is further agreed that the state of Arkansas never undertook to convey the said lands embraced within the meandered lines of Walker's Lake, except as same might have passed by operation of law to the defendants as riparian owners, prior to the land grant made by the state to the St. Francis Levee Board in 1893."

The chancellor, after hearing the evidence, dismissed the complaint for want of equity, and plaintiff appealed.

Henry Craft, for appellant. S. S. Semmes, Will J. Driver, and Allen Hughes, for appellees. N. W. Norton, amicus curiæ.

McCULLOCH, J. (after stating the facts as above).

The first question presented is one of fact, whether, at the time of the government survey in 1847, the land in controversy was a portion of the bed of Walker's Lake, or whether it was swamp land; for if the former state of fact is found to have existed, then the title of the owners of adjoining lands extended to the center of the lake by virtue of their riparian rights as such owners, and, since the recession or drying up of the waters has left the land exposed, it belongs to them. See Rhodes v. Cissel, 82 Ark. 367, 101 S. W. 758, and cases therein cited.

Appellant was the plaintiff below, seeking to quiet her alleged title, and must succeed, if at all, upon the strength of her own title, and not upon the weakness of that of her adversaries. Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338, 92 S. W. 534. In other words, the burden of proof is upon her to show that the land in controversy was land and not lake bed at the time of the government survey. In addition to that, the plats of the government survey and the field notes which accompany them show that these lands then constituted the bed of the lake, and were within the meandered lines of the lake. This establishes, prima facie, that the lands were a part of the lake bed, and the burden is upon the appellant to overcome it by proof to the contrary.

But, thus conceding the burden to be upon the appellant, the testimony which she has adduced convinces us that she is correct in her contention as to this question of fact, and that the land in controversy was swamp land at the time of the government survey, and was not in the bed of the lake. The surveyors made mistakes in delimiting the boundary lines of the lake, and included a large amount of low swampy land, which the waters of the lake did not cover. These mistakes were not unreasonable ones, and do not demonstrate either fraud or gross carelessness on the part of the surveyors, for the evidence shows that there may have been grounds at that time to believe that the meander line followed the bank of the lake. The intervening territory between the meander line and the bank of the lake was undoubtedly of that indeterminate character, low lands partly covered by water, about which the surveyors could reasonably have been mistaken, and which they may have concluded was the bed of a shallow part of the lake. There was a slash or low place along the meander line, and, as this may have been temporarily covered by water at the time, the surveyors followed its outer line, believing it to be the shore line of the lake.

We are satisfied, however, that a mistake was made in establishing this line as the shore line of the lake. Out of the testimony of all the witnesses, who testify from recollection as to the condition of the land and the boundaries of the lake many years ago, the preponderance lies, we think, with those who say that the land in controversy was swamp land, and not lake bed. In addition to this, the condition in which the undisputed evidence shows the land to be at this day, and the character of the timber growing thereon, is convincing that it was not a portion of the lake in 1847. The present banks of the lake are well marked, and have not materially changed during the memory of those persons whose testimony on the subject preponderates. We will, therefore, treat it as established that mistakes were made in survey, and that this land was in fact swamp land, and not lake bed. The real location of Walker's Lake was and is far inside the meander lines run by the surveyors. At some points the bank of the lake is over a mile from the surveyed meander line.

But conceding this to be true, the fact remains that a meander line was surveyed, which the field notes show was intended to indicate the shore line of the lake. A body of water constituting a nonnavigable lake existed then and still exists within the meander line, though a considerable distance inward from it. The plats of this survey were filed in the General Land Office of the United States, and were accepted and approved by that department of the government as correct. In running the meander lines, the surrounding sections and parts of sections were necessarily made fractional, and, under the swamp land act of 1850 (act Cong. Sept. 28, 1850, c. 84, 9 Stat. 519), surveyed land in the townships surrounding the lake were selected by the state. The selections were approved by the Secretary of the Interior, and patents were issued to the state conveying the land by description "according to the official plats of the survey returned to the General Land Office of the Surveyor General." The state of Arkansas has, from time to time, sold to individuals the surveyed lands and conveyed them by descriptions according to the plats.

Neither the land department of the United States nor of the state of Arkansas has ever questioned the correctness of the survey, but, on the contrary, have up to the present time and do now treat them as correct, if we may view in that light a failure to take any steps looking to a correction. Can an individual question the correctness of the surveys when neither the general government nor the state government has ever done so? Can an individual acquire and assert rights in these unsurveyed lands which the government has never asserted against the riparian rights of the adjoining owners?

The Supreme Court of the United States, as early as the case of Spencer v. Lapsley, 20 How. 264, 15 L. Ed. 902, decided that "the issue of the grant or patent conveys the title, and questions of fraud or irregularity, or excess in the survey, cannot be raised by other parties than the government."

Mr. Justice Lamar, in delivering the opinion of the court in Cragin v. Powell, 128 U. S. 691, 9 Sup. Ct. 203, 32 L. Ed. 566, said: "That the power to make and correct surveys of the public land belongs to the political department of the government, and that, whilst the lands are...

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2 cases
  • Little v. Williams
    • United States
    • Arkansas Supreme Court
    • 22 Junio 1908
  • Lilygren v. Rogers
    • United States
    • Washington Court of Appeals
    • 22 Septiembre 1969
    ...and that a description of land in a government survey is a reference to the plat. The court cited with approval Little v. Williams, 88 Ark. 37, 113 S.W. 340 (1908). Courts take cognizance judicially of the general system of government surveys, and, accordingly, we know that lands are survey......

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