McBride v. Whitaker

• Decision Date: 04 June 1902
• Parties: MCBRIDE v. WHITAKER ET AL.
• Court: Nebraska Supreme Court

65 Neb. 137

90 N.W. 966

MCBRIDE

v.WHITAKER ET AL.

Supreme Court of Nebraska.

June 4, 1902.

Syllabus by the Court.

1. Grants of land bounded upon a river not navigable carry with them the exclusive right and title of the grantee to the center of the stream, unless the terms of the grant clearly denote the intention to stop at the bank or margin of the river; the rule of the common law being that proprietors of land adjoining public rivers not affected by the flow of the tide own the soil ad filum aquæ.

2. A grant of land bounded upon a nonnavigable river, made by the general government with reference to the plat of the survey, which shows a meandered line along the river bank, conveys to the grantee title to such unsurveyed islands or parts of islands as lie within that limit.

3. The power to make and correct surveys of the public lands belongs exclusively to the political department of the general government, and a plat of a survey made and approved by that department cannot be impeached in the courts, except upon a direct proceeding for that purpose.

4. A party defendant in an action to quiet title cannot be heard to complain that the action was brought on the equity side of the docket, when by his answer he has invoked the action of the court in his own behalf.

Commissioners' opinion. Department No. 3. Appeal from district court, Buffalo county; Sullivan, Judge.

Action by Thomas McBride against George Whitaker and another. From a judgment, plaintiff and William H. Kilgore, defendant, appeal. Reversed.W. D. Oldham, J. M. Easterling, H. M. Sinclair, and E. C. & H. V. Calkins, for appellants.

Frank E. Beeman and Fred A. Nye, for appellees.

DUFFIE, C.

The N. E. 1/4 of section 12, township 8 N. of range 15 W., in Buffalo county, Neb., is intersected by a channel of the Platte river, known as “Mosquito channel.” That part of the section lying north of this channel was surveyed into one full 40-acre tract, and two fractional lots numbered on the government plat as 6 and 7. That part of the quarter section south of the channel consists of a fractional lot marked on the government plat as lot 8. About midway between these lots, in the center of the channel, is an island which was never surveyed; and McBride, the owner of lot 8, and Kilgore, who claims to be the owner of lots 6 and 7, each claim title to a portion of this island, asserting that their grant of the fractional lots above mentioned gave them title to the thread of the channel, including all islands or parts of islands embraced within this limit. McBride and Kilgore could not agree upon a division of the island, and the possession thereto shifted between them, but for many years previous to 1897 one or the other of these parties has been in the actual possession of the island. In April, 1897, the defendant Whitaker took possession of the island, and has had actual possession from that time. This action was brought by the appellant McBride to quiet his title to so much of the island as might fall within the terms of his grant; his petition alleging that the meandered lines, as shown by the field notes, do not coincide with the banks of the said Mosquito channel as they now exist, and that there is a controversy between the plaintiff and the defendant Kilgore as to where said boundary line should be located. He asks that the boundary line be ascertained and established by the court, and his title established as against the claim of Kilgore. Whitaker was made a party defendant in this action; it being alleged in the petition that Whitaker had moved upon the island, and erected a house thereon, and made claim to the ownership thereof. The court made certain findings of fact and conclusions of law, upon which judgment was entered, from which judgment and decree the plaintiff McBride and the defendant Kilgore have appealed to this court.

The court's findings are as follows: “The court finds that the plaintiff, McBride, at the time of the bringing of this suit, was the owner of lot eight in section twelve, township eight, range fifteen, in Buffalo county, Nebraska; that he made the original entry therefor, and has been in the open and notorious possession of the same for fifteen or twenty years. The court further finds that the defendant W. H. Kilgore at the beginning of this suit, and for a long time prior thereto, was the owner of lots six and seven in said section; that he became the owner of the same by virtue of a deed to him from the original patentee of said tract, and that he had been in possession of the same for more than ten years prior to the bringing of this suit; that said tract of land, with other land, was within the extreme channels of the Platte river, and that lying between lots six and seven on the north, and lot eight on the south, was a tract of land in said section twelve of about twenty-two acres, entirely surrounded by certain channels in the Platte river, and which is the tract of land in dispute herein; that the government surveyors, when originally surveying said lots six and seven, did not actually survey the meander line forming the south line of lots six and seven, as they were required to do, but that, instead of making an actual survey of said meander line along the said channel bordering on said lots six and seven, they falsely show upon the map made by them that they had done so, and located upon said plat what they supposed to be the true meander line of said lots six and seven; that they never made an actual survey of the north meander line of said lot eight, but indicated upon the plat made by them what they supposed was the meander line of said lot eight; that they never actually surveyed the meander line of said tract of land lying between lots six and seven, on the one side, and lot eight, on the other, and which tract is spoken of in the evidence as an island, but that they indicated upon the plat the general outlines of said island as they understood it to be. The court further finds that said channels bordering said tract in dispute (the one being on the south of lots six and seven, and the other on the north of lot eight) are substantially the same now as they were at the time the original survey was made, and that said channels are substantially as shown by the plaintiff's plat marked ‘Plaintiff's Exhibit A,’ offered in evidence. The court further finds that the defendant Kilgore at all times since he became the owner of said lots six and seven claimed to be the owner of the tract in dispute, as part of his said lots six and seven; that such claim had not extended over the period of ten years at the bringing of this suit; that he had possession during a part of the time of said claim of all of said tract, and all the time a part of said tract; that McBride, ever since he obtained his final receipt to lot eight, has claimed to be the owner of a part of said island; that they together have had the title to lots six and seven on the one side, and lot eight on the other, and have had possession of the island for more than ten years prior to the bringing of this suit, but that they were contending between themselves during said period as to what part of said island each should have, and did not agree. The court further finds that the south line of said lots six and seven is the channel as shown in Exhibit A, and that the north line of said lot eight is the channel bounding it on the north, as shown in said Exhibit A. As a matter of law, the court concludes that said island should have been surveyed by the government surveyor; that it was a neglect of duty on their part to not survey the same. That the title to said island still remains in the United States. That it was never the intention of the government at the time it gave the patent to said lots six and seven to convey any part of the island, nor was it the intention of the government to convey it to the patentee of lot eight. That the only interest the defendant Whitaker has in said land is that he claims the right to enter the same as a homestead, and that his right is only what possession would give him, and that he has no title thereto. The court further concludes, as a matter of law, that the government is not bound by the failure of the surveyor hired to do this work by his neglect to perform his duty, and that his failure to actually survey said island did not thereby give the parties to whom the government granted the land on either side thereof any right to it.”

We doubt very much whether the petition presents a case of equitable jurisdiction. The fact that the plaintiff, McBride, and the defendant Kilgore each claim ownership of a part of the island in dispute, but cannot agree upon the division to be made thereof, does not, in our opinion, present any matter for the equitable interference of the court. Conceding, as we think we must, that as between themselves their claim to ownership of the island is a valid and legal claim, and passes to them with the grant of land along the shore of the channel, the fact that the dividing line between them is in dispute is not a matter concerning which the equitable jurisdiction of the court may be invoked. Each concedes to the other the ownership and legal title to a portion of the island. The only matter in dispute between them is the establishment of a dividing line, and this is certainly a matter which a court of law has full power and authority to adjust. Both parties have, however, treated the action as one to quiet title; and it was held in Mollie v. Peters, 28 Neb. 670, 44 N. W. 872, that “where both parties to a suit by their pleadings claim title to the same tract of land, and each asks to have his title quieted, it is too late, after decree for the losing party, to urge for the first time that the proper remedy was by an action of ejectment.” See, also, Baumann v. Franse, 37 Neb. 807-811, 56 N. W. 395, and cases there cited.

The evidence is undisputed that the government, in the original...