Tolleston Club of Chicago v. Carson

• Decision Date: 24 April 1919
• Docket Number: 22,692
• Citation: 123 N.E. 169,188 Ind. 642
• Parties: Tolleston Club of Chicago et al. v. Carson
• Court: Indiana Supreme Court

123 N.E. 169

188 Ind. 642

Tolleston Club of Chicago et al. v. Carson

No. 22,692

Supreme Court of Indiana

April 24, 1919

Rehearing Denied December 16, 1919.

From the Porter Superior Court; Harry B. Tuthill, Judge.

Action by Isabella Carson against the Tolleston Club of Chicago Amos W. Walker and others. From a judgment for the plaintiff the named defendants appeal.

Reversed.

Randall W. Burns, John H. Gillett, Gerald A. Gillett, Fred Barnett, for appellants.

Peter Crumpacker, Fred C. Crumpacker and Charles T. Crumpacker, for appellee.

OPINION

Lairy, J.

Appellee, Isabella Carson, brought this action against appellants, the Tolleston Club of Chicago, Amos W. Walker, and many others, the purpose being to quiet her title to certain lands described by metes and bounds in section 17, township 36 north, range 8 west, in Lake county, Indiana. All of the defendants defaulted except the Tolleston Club and Walker. A trial on the issues formed resulted in a verdict and judgment, to reverse which this appeal is prosecuted.

In order to convey a clear understanding of the questions involved it is necessary to make a statement showing the source of the conflicting claims of title.

In 1834 and 1835 the government of the United States caused a survey of township 36 north, range 8 west, in the State of Indiana. The Calumet river flows across the township from east to west a little north of the center. At the time of the survey there was a marsh on both sides of the current, a large part of which was covered by water and which was designated on the plat as an "impassable morass." The plat of the survey shows meander lines run on both sides of the river bordering the "impassable morass," the distances between the meander lines in sections 17 and 20 being over one mile. Outside the meander lines the section lines, both north and south and east and west, are shown on the plat by solid black lines, and the subdivision of the sections into quarters is shown by similar lines. The north and south section lines are shown on the plat by dotted lines extending across the "impassable morass" between the meander lines, but the east and west section lines which would lie between the meander lines are not shown. A large part of the south half of section 17 in which the land in controversy lies is south of the north meander line. The plat shows that the part of section 17 lying north of the meander line was subdivided. The north half of the northeast quarter and the north half of the northwest quarter are shown as 80-acre tracts, and the southwest quarter of the northwest quarter is shown as a 40-acre tract. The southeast quarter of the northeast quarter and that part of the northeast quarter of the southeast quarter lying north of the meander line was indicated on the plat as lot 1, containing sixty-eight acres. The southwest quarter of the northeast quarter and that part of the northwest quarter of the southeast quarter lying north of the meander line was indicated on the plat as lot 2, containing 61.30 acres. The southeast quarter of the northwest quarter and that part of the northeast quarter of the southwest quarter lying north of the meander line was indicated in the plat as lot 3, containing sixty-two acres. The parts of the northwest quarter of the southwest quarter and the southwest quarter of the southwest quarter lying north of the meander line constitutes lot 4, as indicated on the plat. A copy of the map of the government survey, covering section 17 and other sections contiguous to the marsh is set out for reference. See pages 645, 648.

"EXHIBIT A"

[SEE GRAPH IN ORIGINAL]

The State of Indiana acquired title to all or a part of said section 17 under an act of Congress approved September 28, 1850, known as the Swamp Land Act. The patent evidencing such grant is as follows:

"Whereas, by the act of Congress approved September 28, 1850, entitled 'An act to enable the state of Arkansas and other states to reclaim the swamp lands within their limits,' it is provided that all the swamp and overflowed lands, made unfit thereby for cultivation within the State of Indiana, which remained unsold at the passage of said act, shall be granted to said state; and, whereas, in pursuance of instructions from the General Land Office of the United States, the several tracts or parcels of land hereinafter described have been selected as swamp and overflowed lands, inuring to the said state, under the act aforesaid, being situate in the district of lands subject to sale at Winamac, Indiana, to wit: Whole of sections two, three, six, seven, eight, nine, ten and eleven. The whole of fractional sections twelve, fifteen, seventeen, eighteen, nineteen, twenty, twenty-one and twenty-two (here follows the description of many additional tracts of lands not included in this controversy) all in township thirty-six north of range eight west, containing in all eleven thousand, three hundred and three acres, and thirty-nine hundredths of an acre, according to the official plats of survey of the lands returned to the General Land Office, by the Surveyor General, and for which the Governor of the said state of Indiana, did on the eighteenth day of December, one thousand, eight hundred and fifty-two request a patent to be issued to the said state, as required in the aforesaid act.

"Now, therefore, know ye, that the United States of America, in consideration of the premises, and in conformity with the act of Congress, have given and granted, and by these presents do give and grant, unto the said state of Indiana, in fee simple subject to the disposal of the Legislature thereof, the tracts of land above described, to have and to hold the same, together with all the rights, privileges, immunities and appurtenances thereto belonging, unto the said state of Indiana, in fee simple and to its assigns forever."

In 1856 the State of Indiana granted to Aaron N. Hart, by separate patents, the following described tracts of land in said section 17, to wit: The northwest quarter of the northwest quarter; the southwest quarter of the northwest quarter; lot 2 in said section containing 61.30 acres; lot 3 in said section containing sixty-two acres; and lot 4 in said section containing 37.70 acres. Appellee claims the land in controversy under a deed to parts of lot 2 and lot 3, tracing her chain of title through mesne conveyances to Aaron N. Hart.

In 1870 the Congress of the United States passed an act which, after reciting by way of preamble that there was at the time lying along the banks of the Little Calumet river in the counties of Porter and Lake in the State of Indiana a body of lands supposed to contain about 4,000 acres, which had never been sold or surveyed and which was described in the original government survey as an impassable morass, and after further reciting in the preamble that the Calumet Drainage Company had been organized under the laws of the State of Indiana for the purpose of draining the valley of said river, including the impassable morass, provided that said unsold land should be subject to a lien under the laws of Indiana for the proper proportion of the costs of such drainage, and further provided by § 2 of the act that said lands might be surveyed and sold to the highest bidder under the directions of the Secretary of the Interior subject to such lien.

In 1872 the United States government caused the lands lying between the meander lines in township 36 north, range 8 west, to be surveyed for the purpose of sale under the provisions of the act to which reference has been made. That part of the south one-half of section 17 lying south of the meander line was mostly included in lot 5 and lot 6 as shown by the plat of this survey, a copy of which is set out for reference.

"EXHIBIT B"

[SEE GRAPH IN ORIGINAL]

The Tolleston Club claims title to the lands in controversy lying south of the north meander line, basing its claim on deeds under a chain of title originating in patents issued by the government of the United States under the last survey.

The tract of land in controversy is described by metes and bounds as follows: Beginning at a point in the middle of the north line of lot 2 in said section; thence south on a line parallel with the north and south middle line of said section to the south line thereof; thence west to said north and south center line of said section; thence north along said center line to the northwest corner of said lot 2; thence east to the place of beginning. Also, commencing at a point 591.1 feet east of the southwest corner of the northeast quarter of the northwest quarter of said section; running thence east to the northeast corner of lot 3 as surveyed and designated by the United States government in said section; thence south along the east line of said lot 3 to the south line of said section 17; thence west along said south line to a point due south of the place of beginning; thence north to the place of beginning.

Appellee claims title to the land south of the meander line on the theory that the entire section was covered by the original government survey of 1834, and that no part of the section was excluded or left unsurveyed; that the title of the United States government passed to the State of Indiana under the patent heretofore set out, and that the sale of lot 2 and lot 3 by the state to Aaron N. Hart conveyed not only the high land north of the meander line, but also the submerged land lying south thereof within the subdivision of the section.

The Tolleston Club makes no claim to the land described north of the meander line; but, as to that part of the land south of the meander line included in the description, it asserts title on two grounds: First, it claims a record title to the lots laid off...