Stroup v. Matthews

• Decision Date: 04 April 1927
• Docket Number: 4418
• Citation: 44 Idaho 134,255 P. 406
• Parties: JACOB STROUP, Respondent, v. O. ZIUS MATTHEWS and ETTA M. MATTHEWS, His Wife, Appellants
• Court: Idaho Supreme Court

255 P. 406

44 Idaho 134

JACOB STROUP, Respondent, v. O. ZIUS MATTHEWS and ETTA M. MATTHEWS, His Wife, Appellants

No. 4418

Supreme Court of Idaho

April 4, 1927

PUBLIC LANDS - SURVEYS - BOUNDARIES-RIGHT OF PATENTEE TO LAND BETWEEN MEANDER LINE AND NAVIGABLE STREAM.

After issuance of patent to particular tract meandering a navigable stream, court may not thereafter exclude patentee from lands shown by subsequently corrected survey to lie between actual stream and originally platted meander line.

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. B. S. Varian, Judge.

Action to quiet title. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

Ira W Kenward and A. L. Freehafer, for Appellants.

The government has the right to correct its surveys and dispose of land not shown in its original plat and situated beyond the meander line as run by the former survey. (Moffat v United States, 112 U.S. 24, 5 S.Ct. 10, 28 L.Ed. 623; Niles v. Cedar Point Club, 175 U.S. 300, 20 S.Ct 124, 44 L.Ed. 174; Barnhart v. Ehrhart, 33 Ore. 274, 54 P. 195; French Glenn Live Stock Co. v. Springer, 185 U.S. 47, 22 S.Ct. 563, 46 L.Ed. 800; Horne v. Smith, 159 U.S. 40, 15 S.Ct. 988, 40 L.Ed. 68.)

The land department has decided that the land in dispute was omitted from the survey of 1868; hence the question involved in this case is res adjudicata. (White v. Whitcomb, 13 Idaho 490, 90 P. 1080; Gauthier v. Morrison, 232 U.S. 452, 34 S.Ct. 384, 58 L.Ed. 680.)

The land department has exclusive jurisdiction of surveys and when any omission, whether by inadvertence, mistake or fraud, is brought to its attention it may cause a resurvey to be made. (Wilson & Co. v. United States, 245 U.S. 24, 38 S.Ct. 21, 62 L.Ed. 128; Niles v. Cedar Point Club, supra; French-Glenn Live Stock Co. v. Springer, supra; Security Land & Exploration Co. v. Burns, 193 U.S. 167, 24 S.Ct. 425, 48 L.Ed. 662; Chapman & Dewey Lumber Co. v. St. Francis Levee District, 232 U.S. 186, 34 S.Ct. 297, 58 L.Ed. 564.)

The government, as the original proprietor, has the right to survey and sell or open to entry any public lands, and the failure of a surveyor to show public lands on an official plat does not estop the government from claiming such lands and disposing of them when called to its attention. (Whitaker v. McBride, 197 U.S. 510, 25 S.Ct. 530, 49 L.Ed. 857; Jeems Bayou Hunting & Fishing Club v. United States, 274 F. 18; Security Land & Exploration Co. v. Burns, supra.)

Ed. R. Coulter, for Respondent.

When the last act in the series essential to the transfer of the title from the United States has been performed, the title has passed from the United States and the power of the land officers to deal with it has passed away. (United States v. Schurz, 102 U.S. 378, 26 L.Ed. 167; Iron Silver Min. Co. v. Campbell, 135 U.S. 286, 10 S.Ct. 765, 34 L.Ed. 155; Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 U.S. 301, 23 S.Ct. 692, 47 L.Ed. 1064; Levey v. Stockslager, 129 U.S. 470, 9 S.Ct. 382, 32 L.Ed. 735; United States v. Stone, 2 Wall. (U. S.) 525, 17 L.Ed. 765; Bicknell v. Comstock, 113 U.S. 149, 5 S.Ct. 399, 28 L.Ed. 962; Williams v. United States, 138 U.S. 514, 11 S.Ct. 457, 34 L.Ed. 1026; Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428; Moore v. Robbins, 96 U.S. 530, 24 L.Ed. 848; Rogers Locomotive Machine Works v. American Emigrant Co., 164 U.S. 559, 17 S.Ct. 188, 41 L.Ed. 552; Chapman & Dewey Lbr. Co. v. St. Frances Levee Dist., 232 U.S. 186, 34 S.Ct. 297, 58 L.Ed. 564; Michigan Land etc. Co. v. Rust, 168 U.S. 589, 18 S.Ct. 208, 42 L.Ed. 591; Nobel v. Union River Logging R. Co., 147 U.S. 165, 13 S.Ct. 271, 37 L.Ed. 123; Beley v. Naphtaly, 169 U.S. 353, 18 S.Ct. 354, 42 L.Ed. 775.)

A patent regularly issued is conclusive against the government and junior claimants, unless set aside or annulled by some authorized judicial tribunal, and unless otherwise specifically provided by statute. (Hughes v. United States, 4 Wall. (U. S.) 232, 18 L.Ed. 303; United States v. Hughes, 11 How. (U. S.) 552, 13 L.Ed. 809; Meader v. Norton, 11 Wall. (U. S.) 442, 20 L.Ed. 184; Maxwell Land Grant Case, 121 U.S. 325, 7 S.Ct. 1015, 30 L.Ed. 949; Fenn v. Holme, 21 How. (U. S.) 481, 16 L.Ed. 198; Bagnell v. Broderick, 13 Pet. (U. S.) 436, 10 L.Ed. 235; Doe v. Winn, 11 Wheat. (U. S.) 380, 6 L.Ed. 500; United States v. Arredondo, 6 Pet. (U. S.) 691, 8 L.Ed. 547; Doe v. Winn, 5 Pet. (U. S.) 233, 8 L.Ed. 108; Gibson v. Choteau, 13 Wall. (U. S.) 92, 30 L.Ed. 534; Eureka Co. v. Bailey Co., 11 Wall. (U. S.) 488, 20 L.Ed. 209; Curtner v. United States, 149 U.S. 662, 13 S.Ct. 1041, 37 L.Ed. 890; Marsh v. Nichols, Shepherd & Co., 128 U.S. 505, 9 S.Ct. 168, 32 L.Ed. 538; Smelting Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875; Smelting Co. v. Ray, 104 U.S. 657, 26 L.Ed. 882; Spencer v. Lapsley, 20 How. (U. S.) 264, 15 L.Ed. 902; White v. Burnley, 20 How. (U. S.) 235, 15 L.Ed. 886; Hoffnagle v. Anderson, 7 Wheat. (U. S.) 212, 5 L.Ed. 437; Lindsay v. Miller, 6 Pet. (U. S.) 666, 8 L.Ed. 538; Ballance v. Forsyth, 13 How. (U. S.) 18, 14 L.Ed. 32; Shaw v. Kellog, 170 U.S. 312, 18 S.Ct. 632, 42 L.Ed. 1050; Johnson v. Towsley, 13 Wall. (U. S.) 72, 20 L.Ed. 485.)

Where lands have been previously disposed of, the department has no jurisdiction to dispose of them, and any attempted conveyance of them by the government is void. After having conveyed the lands by patent the government loses all jurisdiction over them. (Davis v. Weibold, 139 U.S. 507, 11 S.Ct. 628, 35 L.Ed. 238; Vincennes University v. Indiana, 14 How. (U. S.) 268, 14 L.Ed. 416; New Orleans v. United States, 10 Pet. (U. S.) 662, 9 L.Ed. 573; Reichart v. Felps, 6 Wall. (U. S.) 160, 18 L.Ed. 849; Monroe Cattle Co. v. Becker, 147 U.S. 47, 13 S.Ct. 217, 37 L.Ed. 72; Wilcox v. Jackson, 13 Pet. (U. S.) 498, 10 L.Ed. 264; Leavenworth etc. R. R. Co. v. United States, 92 U.S. 733, 33 L.Ed. 634; Kansas P. Ry. Co. v. Dunmeyer, 113 U.S. 629, 5 S.Ct. 566, 28 L.Ed. 1122; United States v. Fitzgerald, 15 Pet. (U. S.) 407, 10 L.Ed. 785; Kissell v. St. Louis Pub. Schools, 18 How. (U. S.) 19, 15 L.Ed. 324; Hastings & D. R. R. Co. v. Whitney, 132 U.S. 357, 10 S.Ct. 112, 33 L.Ed. 363; Armstrong v. Morrill, 14 Wall. (U. S.) 120, 20 L.Ed. 765; Scott v. Ratcliffe, 5 Pet. (U. S.) 81, 8 L.Ed. 54; Wisconsin Cent. R. Co. v. Forsythe, 159 U.S. 46, 15 S.Ct. 1020, 40 L.Ed. 71; Wirth v. Branson, 98 U.S. 118, 25 L.Ed. 86; Frisbie v. Whitney, 9 Wall. (U. S.) 187, 19 L.Ed. 668; Lytle v. Arkansas, 9 How. (U. S.) 314, 13 L.Ed. 153; Barney v. Dolph, 97 U.S. 652, 24 L.Ed. 1063; Stark v. Starrs, 6 Wall. (U. S.) 402, 18 L.Ed. 925; Simmons v. Wagner, 101 U.S. 260, 25 L.Ed. 910; United States v. State Investment Co., 264 U.S. 206, 44 S.Ct. 289, 68 L.Ed. 639.)

The general rule is that the meander lines run in surveying fractional portions of public lands bordering upon navigable rivers are run not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream and as the means of ascertaining the quantity of land in the fraction, and which is to be paid for by the purchaser. The body of water whose margin is meandered is the true boundary. (Railroad Co. v. Schurmeir, 7 Wall. (U. S.) 272, 19 L.Ed. 74; Shiveley v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331; Jefferies v. East Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872; Greene v. United States, 274 F. 145; affirmed, United States v. Lane, 260 U.S. 662, 43 S.Ct. 236, 67 L.Ed. 448; Johnson v. Hurst, 10 Idaho 308 (see cases cited at p. 319), 77 P. 784; Johnson v. Johnson, 14 Idaho 561, 95 P. 488, 24 L. R. A., N. S., 1240; Lattig v. Scott, 17 Idaho 506, 107 P. 47.)

T. BAILEY LEE, J. Wm. E. Lee, C. J., and Givens and Taylor, JJ., concur.

OPINION

T. BAILEY LEE, J.

Plaintiff, Jacob Stroup, plead that under United States patent of August 19, 1881, he was the owner and entitled to possession of lots 1 and 2 of section 8 in township 8 N., R. 5, W., B. M., in Payette county, with the exception of a small described strip on the north side of said lot 1; that the approved and filed government plat and field-notes of the survey of the same affirmatively show such lots to be meandered by and adjoining the right bank of Snake river, with no land intervening between such meander line and the river bank; that the defendants were in possession of said lands, wrongfully and unlawfully, through violence, force, fraud, stealth, perjury and a combination thereof, withholding the premises from plaintiff after his demand that they vacate. He prayed for possession and the quieting of his title. Defendants admitted their possession, but denied that it was wrongful, alleging that, between the survey meander line and the river bank, there was a considerable body of land omitted by inadvertence, mistake or fraud from the original government survey, which land they took possession of under a state possessory claim filed by the defendant, O. Zius Matthews, on June 11, 1921, in the office of the county recorder of Payette county. They further allege that at the instance of the said defendant the federal government had the land in question surveyed, establishing lots 5 and 6 respectively west of said lots 1 and 2; that such were officially declared open to entry, and that on July 12, 1923, said Matthews applied to make homestead entry thereof, which application was duly accepted, and receipt issued for fees paid. They prayed that plaintiff take nothing by his complaint and that the cause be transferred to the United States district court by reason of the federal question involved. The case not having been transferred, trial was had by the court, all findings supporting plaintiff's allegations; and judgment and decree in his favor were entered as prayed for. Defendant...