Steinbuchel v. Lane

• Decision Date: 08 January 1898
• Docket Number: 10227
• Parties: MARIE STEINBUCHEL et al v. TIMOTHY M. LANE
• Court: Kansas Supreme Court

51 P. 886

59 Kan. 7

MARIE STEINBUCHEL et al v. TIMOTHY M. LANE

No. 10227

Supreme Court of Kansas

January 8, 1898

Decided January, 1898.

Error from Sedgwick District Court. C. Reed, Judge.

Judgment affirmed.

Thornton W. Sargent, for plaintiffs in error.

Stanley & Vermilion, for defendant in error.

OPINION

ALLEN, J.

This case involves the title to part of an island in the Arkansas River, opposite the mouth of the Little' Arkansas. In the year 1867, the lands lying along that part of the Arkansas River were surveyed by authority of the Government. In making such survey both sides of the river were meandered, and no notice was then taken of this island. It was not indicated on the plats of the survey. In 1869, William Smith settled on the north half of the southeast quarter and lot 5 of section 18, township 27, range 1, east; and, on the tenth of June 1873, a patent therefor was issued to him by the United States. The land in controversy is that part of the island lying south from and opposite lot 5. The plaintiffs are the owners of the land so patented to William Smith, and claim title to the land in controversy as an appurtenant to lot 5 which was bounded on the south by the river. In 1875, Mary Norman settled on the island. At her instance it was surveyed by orders from the General Land Office, and designated as lot 4 of section 17, lot 10 of section 18, lot 8 of section 19, and lot 8 of section 20. A patent for the island, described as such lots, was issued to her on December 30, 1876. The quantity of land granted is stated in the patent as 25.70 acres. The defendant claims title under a chain of conveyances from Mary Norman.

The contention of the plaintiffs is, that when the government granted to William Smith lands bounded by a non-navigable river, the patent conveyed title to the middle thread of the stream; and that a subsequent survey of the island and grant of it to another, could not divest the title which had already passed to Smith.

Much of the testimony was directed to the question whether the Arkansas River above the mouth of the Little Arkansas was navigable prior to 1875. A large part of the briefs is devoted to a discussion of the facts bearing on the question of navigability and the law applicable to them. As we view the case, it is unimportant whether the river was navigable or not. The patent to William Smith conveyed to him the north half of the southeast quarter and lot 5 of section 18, containing 129.67 acres, according to the official plat of the survey of the lands returned to the General Land Office by the Surveyor General. The southern boundary of his land as shown by that plat was the Arkansas River. The jury found under the testimony that the river was then navigable, although it has now ceased to be so. But, whether that finding be right or wrong, it appears without dispute that, in 1869, when Smith settled on his land, the island contained about twenty-six acres, and that the waters of the Arkansas River divided at the head of the island, forming two distinct channels, the one on the north of the island being about two hundred feet wide, and the one on the south about three hundred feet wide. There is no claim that this island or any part of it was included in the computation of the quantity of land patented to Smith.

We are not inclined to question the soundness of the rule applied in the case of Grand Rapids & I. R. Co. v. Butler 15 S. C. R. 991. In that case, a small island, containing 2.56 acres at the time of the survey, lay between the middle of the stream and the land on the shore belonging to Butler. There was conflict in the testimony as to the character of the island at the time the shores of the river were meandered. Other islands in the river were surveyed at the time the west bank was meandered, but this island was not surveyed until nearly twenty years thereafter. The Supreme Court of Michigan held that under the law of that State the original grant passed title to the middle thread of the river, which was west of the island, and that no subsequent survey by the government could deprive the grantees of it. This decision was affirmed by the Supreme Court of the United States. There can be no question as to the soundness of the rule that the government of the United States cannot deprive a riparian proprietor of any substantial right that...