Schurmeier v. St. Paul & Pacific R. R. Co.

• Decision Date: 01 January 1865
• Parties: CASPER H. SCHURMEIER vs. THE ST. PAUL AND PACIFIC RAILROAD COMPANY et al.
• Court: Minnesota Supreme Court

10 Minn. 59

CASPER H. SCHURMEIER vs. THE ST. PAUL AND PACIFIC RAILROAD COMPANY et al.

Supreme Court of Minnesota.

Appeal from judgment of district court, Ramsey County.

The action was brought to enjoin the defendants from constructing and using a railroad along the levee or landing on the Mississippi River in the City of St. Paul, in front of lots of plaintiff, fronting according to the plat of said city, on said levee or landing. In 1849, Louis Roberts purchased and received from the government a patent for lots one and two, section five, town twenty-eight, north of range twenty-two west, of which plaintiff's lots are a part, and platted the same as the Town of St. Paul. The plat extended to the main channel of the river. A strip of the land along the Mississippi River extending to the main channel, was designated on the plat as "landing." The government survey of lots one and two, section five, was made, and the map filed in 1847. In this survey the northerly line of the lot in which plaintiff's premises are situated, intersects the river at the easterly or St. Paul bank, a meander post marking the point of intersection; the westerly line of said lot, also intersects the river at said bank, a meander post marking that point of intersection; and the meander line runs along the bank of the river between the two posts. The map of this survey does not indicate the existence of any island in the river opposite said lot, but shows a clear open river. There was, in fact, in the river opposite said lot, a small island, which in high water, was covered with water; at a medium stage of water the island was above water, and between it and the main land there was a current or flow of water; at low water there was no current and very little water, such as there was, standing in pools. In 1856, the government caused this island to be surveyed, and designated on the map, "Island No. 11." Prior to this the City of St. Paul had established the grade for and graded the levee so as to include the island, filling in between it and the main land. The plaintiff, who derives title to his lots from Roberts, constructed a warehouse on them, according to the grade of the levee as so established.

The defendant railroad company, claiming under the act of congress of March, 1857, granting lands to the Territory of Minnesota, to aid in the construction of certain railroads therein, etc., and the act of congress of August 4, 1852, to grant right of way to rail and plank roads through public lands of the United States, and other acts of congress, and of the territorial and state legislature to carry such acts of congress into effect, entered in 1862 upon that part of the levee which includes said island and the space between it and the main land, to construct along the same its railroad tracks, raising the grade for that purpose so as to obstruct plaintiff's use of his warehouse in connection with the river.

The cause was tried before a referee, and judgment rendered, enjoining the defendants as prayed in the complaint.

Points and authorities for appellants: —

1. The lines run and marked by the surveyor upon the bank of the Mississippi River, commonly called the "meander lines," are the boundaries upon that side of the lands granted to Roberts and of all claiming under him.

First, it is a case of the sale of land by special metes and bounds, artificially run and marked upon the ground. Act of February 11, 1805, 2 U. S. Stats. 313, § 2, etc., (Land Laws, 119, etc.); 2 Penn. St. 43; 4 Penn. St. 244; 34 Penn. St. 198; Davis v. Rainsford, 17 Mass. 208; 13 Pick. 145; Jackson v. Hathaway, 15 Johns. 447; Childs v. Starr, 4 Hill, 369 and 373, and the cases there cited per Walworth, C. J.; Bradford v. Cressey, 45 Me. 9; Sanders v. McCracken, Hardin (Ky.) 258; Yoder v. Swope, 3 Bibb. 204; Bodly v. Hernden, 3 A. K. Mar. 21; Fleming v. Kenney, 4 J. J. Mar. 157; Mercer v. Bates, id. 339; Bruce v. Taylor, 2 J. J. Mar. 160; Bates v. Ill. Cent. R. R. Co. 1 Black. 204. The acts of congress providing for the preservation of the field notes of the surveys, show that they are to be regarded as calls for boundaries, and that their purpose is not merely to furnish data for the computation of the quantity and price. See act of 12th of June, 1840, 5 U. S. Stat. 384, and act of 22d of Jan. 1853, §§ 1 and 2, 10 U. S. Stat. 152. There was no authority for the sale of the locus in quo at the time of Roberts' entry, because it had not then been surveyed and platted, or included in returns made to the general land office. See dissenting opinion of Wilson, C. J. 3 Ill. 522. There was no authority to fix the price by one boundary, and sell by a different boundary. But the line by which the price to be paid by the purchaser is determined, is for that reason the line by which he shall hold his title. To hold differently is to invite fraud upon the government.

Second, if it is to be considered as a sale of lands bounded upon the river generally as a natural boundary, the result will be the same. Because the Mississippi River at the place in question, "is a deep and navigable public stream of water on which a large amount of commerce and trade are carried on." See the plaintiff's complaint. Therefore the grant would stop at the edge, and not go to the middle thread. At common law a boundary upon a navigable stream, conveyed only to the edge at high water. The material fact in the eye of the law is navigability, and not what causes or proves it to be navigable. It is the quantity, not the quality, of freshness or saltness, that is the material thing. If the navigability is disputed, the ebbing and flowing of the tide is strong prima facie evidence to support the fact of navigability; but it is not conclusive even as evidence, and as a test it was never anything more than a rule of evidence, as distinguished from a rule of right or property. Public use for the purposes of commerce was higher and more conclusive evidence of navigability in fact, which was the real question in law. The rule in regard to the ebbing and flowing of the tide, like all rules of presumption, depends for its force upon its agreement, as a general rule, with the facts. In England this presumption is generally true in fact — it is probable. In this country the reverse is true and probable. The principle of the rule is to presume what is probable until the contrary is shown, and the law is the same in both countries in this, that in both countries we presume that which is probable. We adhere to the principle and reason of the law, and in order to do so have to reverse the presumption, because the facts in regard to our rivers are the reverse of those in England. The reason of the common law limiting grants of land bordering navigable streams to the edge of them is, that public policy requires that land which ordinarily has no value except for use in connection with public commerce, and may come to have great value for that use, should not pass by grants upon the banks to private persons, but should be held by the public, or those to whom it has been expressly granted by the public, for reasons connected with their interests. No other reason can be given why the grant stops at high water mark, and denies the ownership of the shore and portions covered by shallow water, to the riparian proprietor. For these parts cannot be used by vessels navigating, and are only valuable to erect commercial buildings and docks upon. The Mississippi is within the reason and policy of the common law rule as to tidal waters. 1 Cow 86; 4 Barn. & Cress. 598; 5 Taunt. 706; Woolrych Law of Waters, 62, 63, 64, and the cases there cited; Opinions of Mr. Justice Bronson in Starr v. Child, 20 Wend. 158, and the cases cited by him; 2 Whart. 508; 2 Binn. 475; 14 Serg. & R. 71; 14 Penn. St. 171; 34 Penn. St. 198; 8 Iowa, 1, and cases there cited; 2 Denio, 30, 36; 4 Hill, 369, per Walworth; Orendorff v. Steele, 2 Barb. 126.

Third, whatever may be the strict common law rule, this case arises under the United States Land Laws, and is controlled by them; and by those laws the Mississippi is navigable in law, and grants of land bordering upon it are limited to the surveyed lines where there are any, and in their absence to the edge of the stream. Act of May 18, 1796, Land Laws, p. 50; 1 U. S. Stat. 464; act of May 20, 1785, do. p. 11; act of June 1, 1796, do. p. 56; act of March 3, 1803, do. p. 98, § 17; act of March 26, 1804, do. p. 107, § 6; act of Feb. 11, 1805, do. p. 119-20, §§ 2, 3; 2 Stat. 313; act of April 24, 1820, do. p. 323-4, §§ 1, 3; 3 Stat. 556; act of March 3, 1847, 9 Stat. 179; act of April 16, 1814, Land Laws, 245, § 3; act of Feb. 27, 1815, do. 257, § 1; act of April 16, 1816, do. 273, § 2; act of April 27, 1816, do. 276, § 2; act of March 3, 1847, 9 Stat. at Large, p. 691, or p. 43 of Private Laws, same vol.; also vol. 5, p. 70, and vol. 10, pp. 157 and 601; Child v. Starr, 4 Hill, 369; S.C. 5 Denio, 599; 1 Pet.C.C. 64; 4 Mason, 349; 3 Sumner, 170; 6 Mass. 435; 17 Mass. 298; 13 Pick. 145; 7 Porter, (Ala.) 428; 2 Porter, (Ala.) 436; 6 Humph. (Tenn.) 358; Russell v. Empire State, 1 Newberry, 551; 6 Miss. 219; Walker Ch. 155; 1 Minn. [73]; Jones v. Soulard, 24 How. 41; Orendorff v. Steele, 2 Barb. 126; Bates v. Illinois Central R. R. Co. 1 Black. 204. In every instance of the use of the term "navigable" in the land laws, it is used in the largest sense, meaning navigable in fact for the purpose of trade and commerce. Not an instance can be found of its use in the restricted sense of waters, where the tide ebbs and flows. The same acts which provide for the survey provide also for the sale of the lands and regulate the title, and the term "navigable" must be taken in the same sense, whether the question be one of survey, or of the extent of the title granted upon the survey. The only authority given for deviating from the rectangular form of survey, and for making fractional sections on account of rivers, is...