The State v. The Portsmouth Savings Bank

• Decision Date: 24 May 1886
• Docket Number: 12,138
• Citation: The State v. The Portsmouth Savings Bank, 7 N.E. 379, 106 Ind. 435 (Ind. 1886)
• Parties: The State v. The Portsmouth Savings Bank
• Court: Indiana Supreme Court

7 N.E. 379

106 Ind. 435

The State v. The Portsmouth Savings Bank

No. 12,138

Supreme Court of Indiana

May 24, 1886

From the Newton Circuit Court.

Judgment reversed, at appellee's costs, with instructions to the court below to sustain appellant's motion for a new trial, and to sustain its demurrer to the cross complaint.

F. T Hord, Attorney General, J. B. Julian and J. F. Julian, for appellant.

T. A Hendricks, C. Baker, O. B. Hord, A. W. Hendricks, A. Baker E. Daniels, S. P. Thompson and E. L. Urmston, for appellee.

Zollars, J. Elliott, J., did not participate in the decision of this case.

OPINION

Zollars, J.

Beaver lake is situated in Newton county, some four miles south of the Kankakee river. In 1850, and for a few years thereafter, the lake was a body of water covering about seventeen thousand acres of land, and averaging from five to seven miles in length, and from two to four miles in width. There was eight feet of water at the deepest place. From this place the water gradually became more shallow, until at the margin it was not over a couple of inches deep. There was an island in the lake of about one hundred acres, on about forty acres of which there was growing timber, the balance being marshy. The lake was surrounded on all sides by swamp lands. These lands, so bordering on the lake, had been surveyed and platted, and were subject to private entry. In making the survey, the same was extended around the lake to its margin, and a meandering line established. No part of the lake had been, nor has it been surveyed, its whole interior, except the island, having been covered with water. Pursuant to an act of Congress, passed on the 28th day of September, 1850, known as the Swamp Land Act, these border lands, by a proper designation, were patented to the State. After receiving the patents for these lands, and before selling any of them, the State surveyed and located a ditch to drain the lake into the Kankakee river, which was some forty feet lower than the lake. With the completion of the ditch in the spring of 1854, the water was lowered and so receded as to expose upon an average, forty feet of the bed of the lake around the margin. Commencing at the river, for three and three-fourths of a mile, the ditch was about sixteen feet wide and from two to four feet deep. Through a sand ridge near the margin of the lake the ditch was some fifteen feet deep. The average width of the ditch is now about fifty feet, and the average depth is about eight feet, except through the sand ridge, where it is twenty-four feet deep. This increased width and depth in mainly the result of the action of the water. The increased depth and width of the ditch has had the effect to more completely drain the lake.

On the 21st day of November, 1853, the State conveyed, by patent or patents, to John P. Dunn and Amzi B. Condit, the swamp lands surrounding and adjacent to the lake. The conveyance or conveyances described the border lands by government subdivisions, and did not, in terms, include any of the unsurveyed bed of the lake. They took possession of and commenced paying taxes on said marginal tracts. On the 13th day of December, 1856, Dunn and Condit conveyed the same real estate to Michael G. Bright.

The State claims, and by this action seeks to recover, a portion of the bed of the lake, which appellee claims to own as a remote grantee of Bright.

Appellee resists the claim of the State, and, among other contentions to be hereafter noticed, insists: First. That the Swamp Land Act of Congress, ex proprio vigore, carried to the State the title to the bed of Beaver lake. Second. That the conveyance of the border lands by the State, to Dunn and Condit, carried the bed of the lake and the island in the lake.

As appellee's title upon either of its theories is dependent upon the title that the State may have had, it becomes necessary to ascertain when and how the State became the owner of the bed of the lake. The act of Congress of September 28th, 1850, known as the Swamp Land Act, is as follows:

"Be it enacted, * * * That to enable the State of Arkansas to construct the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands, made unfit thereby for cultivation, which shall remain unsold at the passage of this act, shall be, and the same are hereby, granted to said State.

"Sec. 2. And be it further enacted, That it shall be the duty of the secretary of the interior, as soon as may be practicable after the passage of this act, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the governor of the State of Arkansas, and, at the request of said governor, cause a patent to be issued to the State therefor; and on that patent, the fee simple to said lands shall vest in said State of Arkansas, subject to the disposal of the Legislature thereof: Provided, however, That the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied, exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid.

"Sec. 3. And be it further enacted, That in making out a list and plats of the land aforesaid, all legal subdivisions, the greater part of which is 'wet and unfit for cultivation,' shall be included in said list and plats; but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom.

"Sec. 4. And be it further enacted, That the provisions of this act be extended to, and their benefits be conferred upon, each of the other States of the Union in which such swamp and overflowed lands, known and designated as aforesaid, may be situated." 9 U.S. Statutes at Large, 519; 1 G. & H. 737.

There are many decisions by the different courts of the land interpreting the above act. They are not all in harmony, nor is the reasoning in all of them very explicit or satisfactory. There is a line of decisions, supported by plausible arguments, holding that the title to the swamp lands remained, and still remains, in the United States, and did not, and has not passed to the States, except as the lists and plats have been made and approved by the secretary of the interior, and, as held in some of them, patents issued as provided in sections 2 and 3 of the act. Wright v. Roseberry, 63 Cal. 252; Grantham v. Atkins, 63 Ill. 359; Thompson v. Prince, 67 Ill. 281; Stephenson v. Stephenson, 71 Mo. 127.

It is proper to observe here that the Supreme Court of Illinois has abandoned the doctrine of the cases above cited, following in the later cases what that court conceived to be the holding of the Supreme Court of the United States. Keller v. Brickey, 78 Ill. 133. It is not certain that this case does not go beyond the holding by the United States Supreme Court. See, also, Bristol v. Carroll County, 95 Ill. 84.

The earlier ruling in Illinois seems to be in harmony with the later cases above cited. See Whiteside County v. Burchell, 31 Ill. 68.

On the other hand, it seems to have been held in some of the cases that the Swamp Land Act, ex proprio vigore, passed to the States the fee simple title to all the swamp lands, without any segregation or patent.

In the case of Fore v. Williams, 35 Miss. 533, it was held that the Swamp Land Act, from its passage, vested the absolute title in the State to all the swamp lands, as fully and completely as if the act had designated the lands by specific description; that nothing further was necessary to enjoy the grant but to locate the lands as swamp lands, and thereby render the subject of the grant certain, and that such location was the sole purpose of the 2d section of the act.

Some of the cases hold that while the Swamp Land Act of 1850 operated as a present general grant to the States of the swamp lands therein situated, yet, without the selection of the lands as such, and the approval of such selection by the secretary of the interior, as provided in the 2d and 3d sections of the act, the States acquire no title to any particular tract that they could or can convey to a purchaser. Funston v. Metcalf, 40 Miss. 504. This case interprets the case of Fore v. Williams, supra, as so holding. Others, not going quite so far, hold that, while the Swamp Land Act made a grant in proesenti, and vested the title in the States to all the lands coming within the description, and that when they are properly designated and ascertained, the grant relates to the date of the act, yet the States can not convey title to any particular tract until it has been properly selected as swamp land, and the selection approved by the secretary of the interior. Hendry v. Willis, 33 Ark. 833; Fletcher v. Pool, 20 Ark. 100.

Other cases hold, that the Swamp Land Act operated, ex proprio vigore, to convey the title to the swamp lands to the States; that the selection and patent under sections 2 and 3 of the act are necessary only for the purpose of fixing the location and description, and that the States may provide for the disposal of such lands before they have been selected or patented. Allison v. Halfacre, 11 Iowa 450.

In the case of Iowa R. R. Land Co. v. Antoine, 52 Iowa 429, 3 N.W. 468, the plaintiff claimed title under a railroad grant, and introduced in evidence the commissioner's certificate approved by the secretary of the interior. It was held that parol evidence was not admissible in behalf of the defendant, having no evidence of title, to impeach the plaintiff's title by showing that the land was in fact swamp land, and hence passed under the prior swamp land grant.

In the case of Railroad Co. v. Fremont County, 9 Wall. 89, 19 L.Ed. 563, it was held that after the...