Schlosser v. Hemphill
| Decision Date | 03 June 1902 |
| Citation | 90 N.W. 842,118 Iowa 452 |
| Parties | GEORGE SCHLOSSER v. W. L. HEMPHILL, RICHARD RYAN, et al, Appellants |
| Court | Iowa Supreme Court |
Appeal from Palo Alto District Court.--HON. W. B. QUARTON Judge.[*]
THIS is an action in equity to quiet title to a tract of some 290 acres of land in the S. 1/2 of section 30, township 97, range 34, in Palo Alto county. Plaintiff is the admitted owner of lots two and three, forming a part of said tract, and containing about 99 acres. According to the original government survey, made in 1857 this land, was adjacent to a lake, which was meandered, and the meander lines were run along the north side of the said two lots. The remainder of the land claimed lies between this meander line and the alleged shore of the lake, and is the subject of the controversy. The half section in question--that is, such part of it as lies beyond the original meander line--was resurveyed by the government in the year 1898, and platted into five lots, of which lots 11, 14, and 16 are claimed by defendant Hemphill, and lots 12 and 13 by defendant Ryan. These claims are founded upon conveyances from Palo Alto county, under a patent issued to the state, under the swamp land grant of 1850, and which is based upon the resurvey of 1898. Schlosser insists that the meander line is not his boundary, it not marking the edge of the lake, but that he is entitled to claim up to the east and west half section line of said section. There was a decree for plaintiff, and defendants appeal.
Reversed.
E. B Evans and Morling & Davison for appellants.
Buck & Kirkpatrick and Carr & Parker for appellee.
Lots two and three, which plaintiff admittedly owns, are bounded on the south by the south section line, and they extend almost across said section from east to west. Plaintiff's claim was once before presented to this court in an action of a similar nature to this, but against a different defendant. See Schlosser v. Cruickshank, 96 Iowa 414, 65 N.W 344. Plaintiff was then successful. But that was before the resurvey and issuance of a patent and the making of conveyance by the county; and, more than this, in the other case Schlosser claimed title only to the actual margin of the alleged lake, while here he claims to the half section line, which was first run through this section by the resurvey of 1898. It is undisputed that the meander line did not correctly indicate the shore line of the lake as it was originally run. In the former case we found on the evidence then before us that there was a tract of about one hundred acres between said line and the actual shore of the lake. When a body of water is meandered, such lines are not run as boundaries, but merely for the purpose of defining the sinuosities of the shore, and as a means of ascertaining the quantity of land to be paid for by the purchaser. Schlosser v. Cruickshank, supra, and authorities therein cited. In such a case, if the meander line does not coincide with the bank of the lake, but is so run that land lies outside, and between it and the shore, the adjoining owner will usually take title to the actual shore line; and it may doubtless be properly conceded that no subsequent resurvey by the government, in the absence of fraud or error so gross as to be in the nature of a fraud in the original survey, could affect his title thereto. Mitchell v. Smale, 140 U.S. 406 (11 S.Ct. 819, 840, 35 L.Ed. 442). But, where there is no adjacent body of water proper to be meandered, the rule we have mentioned will not apply. In such a case the meander line will be a boundary line, and one who purchases from the government according thereto cannot claim title beyond it. Grant v. Hemphill, 92 Iowa 218, 59 N.W. 263; Live Stock Co. v. Springer, 185 U.S. 47, 22 S.Ct. 563 (46 L.Ed. 800.)
We have, then, to determine whether there was a body of water in section 30 proper to be meandered. As to what bodies of water should be meandered, see Lester Land Law (Ed. 1860) 714. We do not intend setting out the testimony on this point. It is quite voluminous and very conflicting. From a careful reading of it we reach the conclusion there was no such body of water. That there was swampy and low land in section thirty north of plaintiff's lots admits of no question, and in wet seasons, doubtless, a large part of it was covered at times with water; but we are equally clear that no permanent body of water of any considerable extent existed there. The lake spoken of in Schlosser v. Cruickshank as being about two miles wide, three miles long, ten to eighteen feet deep, and adjacent to this land, is evidently Lost Island Lake, which lies south of section thirty and no where touches it. The meandered lake which gives rise to this controversy is called Mud Lake, and, as must be manifest from what we have said, lies north of plaintiff's land. How far, if at all, this mistake affected the conclusion in the Cruickshank Case, we are not able to say; but that it was an error is clear from the fact that neither witnesses nor counsel for plaintiff claim Mud Lake to answer at all to the description so given. The confusion seems to have arisen from the fact that the Cruickshank Case was submitted in connection with another case involving similar questions (Caldwell v. Jackson, 96 Iowa 414), but which related to land bordering upon Lost Island Lake, and the arguments were made in the latter case. The case of Grant v. Hemphill, to which we have alluded above, involved Mud Lake, as alleged, on section nineteen, which of course adjoins section thirty on the north; and the evidence in that case, in which it was found no lake existed adjacent to the land of the plaintiff in that action, seems to have been quite similar to what is relied on here in support of Schlosser's Case.
We are confirmed in our conclusion by plaintiff's present claim. He does not seek to extend his north line to the shore of a lake, but to the half section line, which did not appear on the original plat; for, with the exception of a very small tract in the northwest corner of the section, the lake was shown to cover that whole subdivision outside of plaintiff's two lots. The half section line certainly does not mark the shore line of any body of water at present or heretofore existing. If we were able to find now, as was done in the former action brought by this plaintiff, that a...
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