State v. Jones

• Decision Date: 02 July 1909
• Citation: 122 N.W. 241,143 Iowa 398
• Parties: STATE v. JONES ET AL.
• Court: Iowa Supreme Court

143 Iowa 398

122 N.W. 241

STATE

v.JONES ET AL.

Supreme Court of Iowa.

July 2, 1909.

Appeal from District Court, Greene County; Z. A. Church, Judge.

Action to enjoin the defendants from draining water from Goose Lake resulted in a decree as prayed. The defendants appeal. Affirmed.E. B. Evans and C. L. Nourse, for appellants.

H. W. Byers, Atty. Gen., and George Cosson, Asst. Atty. Gen., for the State.

LADD, J.

Goose Lake is that portion of sections 1 and 12 in township 84, and of section 36 in township 85 N., of range No. 31 W. of the fifth P. M., and of sections 6 and 7 in township 84 of range 30 W. of the fifth P. M., meandered by the government survey of 1853. It is several hundred acres in extent, and, as the evidence shows, has a well-defined bank or rim. The water is and always has been shallow, varying in depth with the falling of rain and the melting of snows. It is surrounded by high lands which drain into it, and has no outlet save a swale through which the water flows out when the bed fills. Much of the time a large portion of the bed is overgrown with rushes, water lilies, and other vegetation, so that not more than one-fifth of the water in it is clear. In 1907, when the surveyor employed by defendants surveyed it, he found much of the bed so dry that he excavated at several places, finding the vegetable mould on the bottom from 20 to 30 inches deep, underlaid with 1 to 6 inches of sand, with clay below. The surveyor employed by the plaintiff thought much of the bed covered with water when he examined it during the same year. The evidence indicates that during the dry portions of the season the water in the lake is from 18 inches to 5 or 6 feet deep, and grass covers much of the bed, and that when the bed fills so as to overflow it is from 3 or 4 to 11 to 16 feet deep. Boats and skiffs have been kept on the lake for hunting and fishing pur poses since the early days of settlement. It cannot be said with any degree of accuracy from the photographs from how much of the bed the water recedes, but the condition of vegetation on the bottom indicates much of it becomes dry during the dry season.

The Marshall Dental Manufacturing Company obtained a conveyance of the lake bed in controversy through several mesne conveyances from the American Immigrant Company, to whom Greene county had conveyed all the swamp lands within its borders, but no patent has ever issued from the United States to the state therefor, and for this reason the legal title thereto, if a part of the swamp lands, remains in the general government. Young v. Charnquist, 114 Iowa, 116, 86 N. W. 205;Ogden v. Buckley, 116 Iowa, 352, 89 N. W. 1115. An application was made by this company to the General Land Office in 1903 for the survey of the lake bed, and the Secretary of the Interior, in a careful opinion reviewing the evidence, including the field notes of the government survey, found that insufficient proof has been submitted to impeach the correctness of the survey by which Goose Lake was meandered, “thereby determining, so far as lies in the power of the department, that the lands in controversy are not public lands.” This was put upon the ground that “the department has power to correct surveys upon a proper showing, but, as has been frequently said, the proper rule is to refuse to disturb the public surveys except on the clearest proof of accident, fraud, or mistake, where a resurvey may affect the rights or claims of any one resting upon the original survey.” The Secretary pointed out that, inasmuch as the department declined to do anything, a remedy in the courts might be open to the applicant under the doctrine of Railroad Co. v. Smith, 9 Wall. 95, 19 L. Ed. 599, as construed in French v. Fyan, 93 U. S. 169, 23 L. Ed. 812, and observed that “the title to the beds of all lakes that were properly meandered vest in the state by virtue of its sovereignty, and no reason can be perceived why the state cannot assume control of this land and reclaim it by drainage or make any other disposition it may see proper, in view of this decision holding that the lake bed is not public land left unsurveyed.” In view of this decision by the department of the government empowered to pass upon the question, as has been held in numerous cases, we are not prepared to say that this lake bed passed under the terms of what is known as the “Swamp Act” of Congress (Act Sept. 28, 1850, c. 84, 9 Stat. 519). One of the rules promulgated by the department for the guidance of surveyors is the following: “You are also to meander, in the manner aforesaid, all lakes and deep ponds of the area of twenty-five acres and upwards; also navigable bayous; shallow ponds readily drained or likely to dry are not to be a meander.” Surely this lake comes within the description of bodies of water to be meandered, and, in view of the decision of the Secretary of the Interior, it should be regarded a nonnavigable lake. To constitute such a lake, no particular depth of water is essential, nor is it necessary that the water cover the entire bed at all seasons of the year. It is at least enough if the body of water has well-defined banks which are filled during portions of the year. It is apparent that the company has no legal title, although it was proceeding at the time the injunction was sued out to drain the waters from this lake by the excavation of ditches and the laying of tile. The mere fact, however, that it had no title, will not alone justify restraining defendants from making this improvement. Unless the state has title to or control over the bed of the lake or the water covering it, it may not interfere. The law is settled in this state that the owner of land bordering on a nonnavigable body of water meandered by government surveyors has title to the water's edge, and not to the center of the lake, as is held in some states. Wright v. Council Bluffs, 130 Iowa, 274, 104 N. W. 492, 114 Am. St. Rep. 412;State v. Thompson, 134 Iowa, 25, 111 N. W. 328. And the Supreme Court of the United States has laid down the rule that this question is peculiarly for the decision of the respective states. Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 35 L. Ed. 428. In many states the riparian owner is held to take title in the bed of the lake to its center, and such appears to have been the rule at common law. See Hardin v. Jordan, supra; Bristow v. Cormican, L. R. 3 App. Cas. 641; Cobb v. Davenport, 32 N. J. Law, 369; Shell v. Matteson, 81 Minn. 38, 83 N. W. 491;Clute v. Fisher, 65 Mich. 48, 31 N. W. 614;Hodges v. Williams, 95 N. C. 331, 59 Am. Rep. 242;Webster v. Harris, 111 Tenn. 668, 69 S. W. 782, 59 L. R. A. 324;Poynter v. Chipman, 8 Utah, 442, 32 Pac. 690.

The rule in this state, as will appear from the decisions, is well supported by authority, and the inquiry arises, What becomes of the title to the bed of the lake when the riparian owner takes to the water's edge only? Is it retained by the United States, or does it pass to the state in which the body of water is located? The question has been raised in this court several times, but never determined. In Rood v. Wallace, 109 Iowa, 5, 79 N. W. 449, a readiness to assume title to be in the state was expressed, and this was assumed in State v. Thompson, 134 Iowa, 25, 111 N. W. 328. In Carr v. Moore, 119 Iowa, 152, 93 N. W. 52, 97 Am. St. Rep. 292, in stating that riparian owners take to high-water mark only, the court added, “the title being in the state.” But this was mere dictum, and the suggestion in State v. Thompson that “the state became the owner of all lands forming the bed of the inland lakes within its borders which had been meandered by government survey and excluded from public lands as was the lake in question” was of a proposition not controverted, and not as the finding of the court. If title is within the state, when and how was it acquired? Underthe treaty of 1803 (Act April 30, 1803, 8 Stat. 200), with the French Republic, through which the Louisiana territory, out of which this state was carved, was acquired, all vacant lands, not privately owned, were expressly ceded to the United States. These had been obtained by France from Spain under treaty of three years previous. The act of Congress approved March 3, 1845, for the admission of Iowa as a state, provided that “it shall never interfere with the primary disposal of the public lands lying within its borders.” Act March 3, 1845, c. 48, § 7, 5 Stat. 743. And this condition was accepted by the state in an act of the General Assembly dated January 15, 1849, to the effect that it would not “interfere with the primary disposal of the soil within the same by the United States nor with any regulations Congress may find necessary for securing the title in such soil to bona fide purchasers thereof.” Laws 1848-49, p. 121, c. 91. The title to said lands in the United States became perfect and complete as to any others of the public domain. 1 Kent, Com. 257.

As remarked in Irvine v. Marshall, 20 How. 558, 15 L. Ed. 994: “It cannot be denied that all the lands in the territories, not appropriated by competent authority before they were acquired, are in the first instance the exclusive property of the United States, to be disposed of to such persons, at such times, and in such modes and by such titles as the government may deem most advantageous to the...