Schlosser v. Crookshank

• Decision Date: 13 December 1895
• Citation: 96 Iowa 414,65 N.W. 344
• Parties: SCHLOSSER v. CROOKSHANK. CALDWELL v. JACKSON. MCNARY ET AL. v. JACKSON.
• Court: Iowa Supreme Court

96 Iowa 414

65 N.W. 344

SCHLOSSER

v.CROOKSHANK.

CALDWELL

v.JACKSON.

MCNARY ET AL.

v.JACKSON.

Supreme Court of Iowa.

Dec. 13, 1895.

Appeal from district court, Palo Alto county; George H. Carr, Judge.Cory & Bemis, for appellants.

A. C. Parker and Richardson, Buck & Kirkpatrick, for appellees.

KINNE, J.

1. These three cases involve the same questions, are argued and submitted together, and will be considered and determined in one opinion.

Plaintiff Schlosser is the owner of lots 2 and 3 of section 30, township 97 N., of range 34 W. of fifth P. M., in Palo Alto county, Iowa. This land lies adjacent to a lake, a body of water about 2 miles wide and 3 miles long, and being from 10 to 18 feet deep. These lots were patented by the United States to John A. Anthony, and plaintiff's title is devised through certain mesne conveyances from said Anthony. The patent describes the land thus: “Lots mentioned, two and three, of section thirty, township ninety-seven, of range thirty-four, in the district of lands subject to sale at Sioux City, Iowa, containing ninety-nine acres, and eighty hundredths of an acre, according to the official plat of the survey of lands returned to the general land office by the surveyor general.”

Plaintiff Caldwell owns lots 1 and 2 in section 32, township 97 N., of range 34 W. of the fifth P. M. These lots were patented in 1876 to one Perry, from whom, through several mesne conveyances, plaintiff became the owner of the lots in 1891. The description or form is like that in Schlosser's case.

Plaintiffs McNary own lots 3 and 4 in the section, township, and range above mentioned. These lots were patented to one Freeman in 1871, and by him, through several mesne conveyances, said plaintiffs became the owners in 1891. The description in form is like that in Schlosser's case.

All this land appears to have been surveyed by the general government in 1857. The meander line run by the government surveyors touches the shore line of the lake in one or two places only, and then so runs as to leave, in Schlosser's case, about 100 acres of land between the said line and the actual shore line of the lake. In Caldwell's case there are 26.12 acres lying between the shore line of the lake and the meandered line. In McNary's case there are over 34 acres lying between said meandered line and the shore line of the lake. Plaintiff in each case owns the land which lies adjoining said meander line. They and their grantors have for many years occupied and used, to a greater or less extent, this land which lies adjacent to the meander line, and between it and the shore line of the lake, and so continued until about 1893, when defendants went upon the same, and occupied it as public lands of the general government, for the purpose of taking it as homesteads. Plaintiffs bring these actions for decrees establishing their ownership of the land lying between the shore line of the lake and the meandered line, and to quiet title thereto, and enjoining the defendants from entering thereon, or from cultivating the same, or in any manner interfering with the plaintiffs' possession. In each case the district court entered a decree as prayed, to which defendants excepted, and they appeal.

A large part of the land involved in this controversy is high, dry, tillable land. Some of it is meadow or pasture land, and some low and unfit for cultivation. The undisputed evidence is that the shore line of the lake in fact never coincided with the meander line as run by the government surveyors; that the banks of the lake are clearly defined, and in many places many feet higher than the water; that nearly all of the land in dispute has never been overflowed; and that there is every evidence that the shore line of the lake is now practically the same as it was in 1857, when all of this land was first surveyed. There is no question of accretion in these cases.

2. Plaintiffs claim that, as the official plat of the government survey returned to the government land office by the surveyor general shows that the shore line of the lake is coincident with the meandered line, they own to the water's edge; that the meander line is not a boundary line. Defendants contend that whatever may be the presumption against a meander line being a boundary line, when it is shown that, the time the survey was made, a strip of land was left between said meandered line and the shore line of the lake, then the meandered line becomes the boundary line of the adjacent owners. The question we must determine is whether plaintiffs, as owners of the land adjoining the meandered line, take title to, and are the owners of, all the land lying between said line and the shore line of the lake. This, as we understand it, is an action for the recovery of real property, and hence, to entitle plaintiffs to recover, they must show title in themselves. Code, § 3246; Hurley v. Street, 29 Iowa, 429;Reed v. Wright, 2 G. Greene, 38;Glenn v. Jeffrey, 75 Iowa, 20, 39 N. W. 160;McCarty v. Rochel, 85 Iowa, 427, 52 N. W. 361.

3. A meander line is run when a water course or other body of water is the external boundary of the adjacent land; and a line showing the place of the water course or other body of water, and its sinuosities, courses, and distances, is called a “meander line.” The general rule adopted by both federal and state courts is that meander lines are not run as boundaries of the fractional tract thus surveyed, but for the purpose of defining the sinuosities of the banks of the stream or other body of water, and as a means of ascertaining the quantity of land in such fraction subject to sale, and which is to be paid for by the purchaser. Railroad Co. v. Schumeir, 7 Wall. 272;Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808;Boorman v. Sunnuchs, 42 Wis. 233;Wright v. Day, 33 Wis. 260;Jones v. Pettibone, 2 Wis. 308;Ross v. Faust, 54 Ind. 472;Ridgway v. Ludlow, 58 Ind. 252;Palmer v. Dodd, 64 Mich. 474, 31 N. W. 209;Weiss v. Steel Co., 13 Or. 496, 11 Pac. 255;Sphung v. Morre, 120 Ind. 352, 22 N. E. 319;Whitney v. Lumber Co., 78 Wis. 240, 47 N. W. 425;Lally v. Rossman, 82 Wis. 147, 51 N. W. 1132;Olson v. Huntamer (S. D.) 61 N. W. 481;Butler v. Railroad, 85 Mich. 246, 48 N. W. 569;Kraut v. Crawford, 18 Iowa, 549;Musser v. Hershey, 42 Iowa, 356;Steele v. Sanchez, 72 Iowa, 68, 33 N. W. 366;Ladd v. Osborne, 79 Iowa, 95, 44 N. W. 235;Grant v. Hemphill (Iowa) 59 N. W. 265. The rule of the cases cited from this state is that, as a meander line is not a boundary line, the owner of land adjoining such meander line takes title to the high-water mark of the stream or body of water, if navigable, lying adjacent thereto. In other words, in such cases the adjacent proprietor is a riparian owner, whose title extends to and embraces all land lying between such a meandered line and the high-water mark of a navigable stream or other body of water; and such, we may say, is the general holding. In some states it is held that the rights of such riparian owner extend further, and embrace all land lying between the meander line and the center of the stream or body of water, as the case may be. It may be well said here that the latter fact in no way weakens them as authority in favor of extending the title and dominion of the riparian owner over any land adjoining such a meander line, and between it and the shore of the lake. It is said in Noyes v. Collins (Iowa) 61 N. W. 250: “It may be conceded as the rule that riparian owners of lands bordering on rivers or streams not navigable, in the absence of a limitation in the title, take to the center thread of the river or stream. * * * In this state no such rule has been applied to lakes or ponds.” And in that case it is held that such owner's title does not extend beyond the natural shore of the lake. For the purpose of determining the matter now in controversy, it is not material that we discuss the questions as to the ownership of the land under the lake, or refer more fully to the cases relating thereto. Unless, therefore, the facts in the case at bar take it out from under the operation of the rule already established in this state, these cases were correctly decided by the district court. We proceed, therefore, to a consideration of the cases, decided by this court, and which we think rule the cases at bar.

In Kraut v. Crawford, supra, the land was adjacent to the Mississippi river. It was divided into lots, and the acreage in each lot was stated. The tract in controversy lay between the meandered line and the river. It was bottom land, and, when the water was high, it overflowed. The government plat of the survey represented the land of the adjacent proprietors as bounded upon the river. It showed no tract between it and the river, and no such tract was reserved. It was held that the grantee from the general government took to the river, whether he thereby got more or less land than was called for in his patent. It will be seen that this case is in its main facts like those at bar; the only marked difference is that in the cases at bar the land is high, and never overflowed, while in Kraut's Case it was low, and subject to overflow. In Ladd v. Osborne, supra, plaintiff's land was bounded by a meandered body of water, called “Goose Lake.” It appears that the government plat and field notes showed no reservation of land between the meandered line and the lake. Some of the evidence tended to show that the corner of plaintiff's land was established some distance from the shore of the lake, and that the meandered line started from such corner. There was other evidence contradicting this. It was held that plaintiff was a riparian owner, and, as such, his land extended to the lake. The facts of that case differ from those in the cases at bar in that in these cases there is no conflict in the evidence touching the actual location of the meandered line. In these cases it is clearly established that the meandered line never was coincident with the...